Can I represent new clients in a boundary dispute against a former client, when the disputed property is the same real estate I handled for that former client in an earlier divorce case?

Currency note

This opinion was issued in 2001, before Rhode Island's later renumbering of the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Plain-English summary

A lawyer had formerly represented a client in a divorce, during which the client received real estate under a property settlement; disputes had arisen during that representation over permitted uses of the property under grandfather rights, and the lawyer had also been asked (though the sale never happened) to handle a possible sale of the property. The lawyer still held the former client's files. New prospective clients later asked the lawyer to represent them in a boundary dispute involving that same property, now owned by the former client and a spouse; the former client objected.

The panel applied Rule 1.9(a), which bars a lawyer from representing another person in the same or a substantially related matter where that person's interests are materially adverse to a former client, absent the former client's consent after consultation. It found the real estate at the center of the boundary dispute was the same real estate that had been a marital asset in the earlier divorce representation, making the two matters substantially related. On that basis, the panel held the lawyer was barred from representing the prospective clients in the boundary dispute without the former client's consent.

Common questions

Q: What makes a new matter "substantially related" to a former representation?

A: In this opinion, the panel found substantial relatedness because the boundary dispute concerned the identical real estate that had been at issue, as a marital asset, in the lawyer's earlier representation of the former client.

Q: Can I take the new matter if the former client refuses to consent?

A: No. The panel held that absent the former client's consent after consultation, Rule 1.9 barred the representation.

Q: Does it matter that the new clients are different people than my former client?

A: No. Rule 1.9 applies where representing a new party would be materially adverse to the former client's interests in a substantially related matter, regardless of who the new client is.

Background and rules framework

The opinion applies Rule 1.9(a) (Model Rule 1.9, Duties to Former Clients), which the panel quoted as barring a lawyer who formerly represented a client in a matter from later representing another person in the same or a substantially related matter where that person's interests are materially adverse to the former client, unless the former client consents after consultation.

Citations and references

Rules of Professional Conduct:

• MR 1.9(a) (Duties to Former Clients) / RI Rule 1.9(a)

See also

• Alabama State Bar Op. 1990-03: Lawyer Should Not Undertake Representation Adverse to Former Client in a Substantially Related Matter
• RI EAP Op. 2002-03: Former-Client Conflict Bars Representing Dissenting School Committee Members, Imputed to the Firm
• RI EAP Op. 2004-06: Nonwaivable Rule 1.9 Conflict Bars Representing Wife's Extreme-Cruelty Claim Against Former Joint-Representation Husband

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%202001-05.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Final

                       Rhode Island Supreme Court Ethics Advisory Panel
                             Opinion No. 2001-05 Request No. 829
                                  Issued September 20, 2001

Facts:

    The inquiring attorney formerly represented a client in divorce proceedings. Pursuant to a

property settlement, the client received certain real estate about which disputes arose during the
proceedings regarding permitted uses through grandfather rights. During the representation, the client
had asked the inquiring attorney to represent him/her in the sale of the property, but the property was
never sold. The inquiring attorney still has the client's files.

     Individuals now seek to retain the inquiring attorney to represent them in a boundary dispute

relating to the former client's property which is now owned by the former client and a spouse. The
former client objects to the proposed representation.

Issue Presented:

   The inquiring attorney asks whether he/she may represent the prospective clients in the

boundary dispute against the former client and his/her spouse.

Opinion:

       No. There exists a conflict of interest pursuant to Rule 1.9 because the matters are substantially

related.

Reasoning:

       The rule pertinent to this inquiry is Rule 1.9 which states in pertinent part:

                        Rule 1.9. Conflict of Interest: Former Client. - A lawyer
                        who has formerly represented a client in a matter shall not
                        thereafter:

                        (a) represent another person in the same or a substantially
                        related matter in which that person's interests are materially
                        adverse to the interests of the former client unless the former
                        client consents after consultation;

                                                    ***

Final 2001-05
Page 2

    The real estate which is the subject of the present boundary dispute is the same real estate that

was a marital asset and which was eventually transferred to the former client during the prior
representation. The matters are substantially related. Therefore, there is a conflict of interest pursuant
to Rule 1.9, and the inquiring attorney is prohibited from representing the prospective clients in the
boundary dispute without the former client's consent.