Two of my former clients will testify against my current client in a boundary dispute. I represented those former clients in unrelated matters years ago. Is that a conflict?

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 Treat this page as historical context, not current guidance.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

The inquiring attorney wanted to represent a client in a real estate boundary dispute in which two of the attorney's former clients would testify for the opposing side. The attorney had previously represented those individuals in an unrelated corporate matter and an unrelated personal injury matter.

Quoting Rule 1.9 in full, including both the substantial-relationship bar in subsection (a) and the bar on using a former client's confidential information to their disadvantage in subsection (b), the panel found the prior matters and the boundary dispute were unrelated. It concluded the representation was permissible under Rule 1.9, conditioned on not disclosing confidential information from the former representations that could be used to the former clients' detriment.

Common questions

Q: If my former client will testify against my current client, does that alone create a conflict?

A: Not under this opinion. The panel found no conflict where the former representations were unrelated to the current matter, regardless of the former client's role as a witness.

Q: What's the limit on taking this kind of representation?

A: The panel conditioned its conclusion on the lawyer not disclosing confidential information from the former representations that could be used to the former clients' disadvantage.

Background and rules framework

The opinion applies Rule 1.9 (Model Rule 1.9, Duties to Former Clients) in full: subsection (a) bars representing another person in the same or a substantially related matter materially adverse to a former client absent consent, and subsection (b) bars using information from the former representation to the former client's disadvantage. Because the panel found no substantial relationship between the prior representations and the boundary dispute, only the confidentiality limitation in subsection (b) remained operative.

Citations and references

Rules of Professional Conduct:

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

See also

• ABA Formal Op. 497: Conflicts Involving Materially Adverse Interests
• RI Ethics Advisory Panel Op. 2001-05: Conflict Barring Representation Against a Former Client Over the Same Property
• RI EAP Op. 2005-02: A Brief Prior Consultation on an Unrelated Landfill Issue Does Not Bar a Town Solicitor From Handling a Later Siting Dispute

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%202001-06.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. 2001-06 Request No. 836
                               Issued October 18, 2001

FACTS:

    The inquiring attorney wishes to represent a client in a real estate boundary dispute. Two of the

inquiring attorney's former clients will be witnesses for the adverse party. The inquiring attorney
represented the former clients in an unrelated corporate matter and an unrelated personal injury matter.

ISSUE PRESENTED:

    The inquiring attorney asks whether the proposed representation presents a conflict of interest.

OPINION:

   The prior matters and the boundary dispute are unrelated and there is no conflict of interest

pursuant to Rule 1.9.

REASONING:

    Rule 1.9 states:
             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; or

            (b) use information relating to the representation to the disadvantage of
            the former client except as Rule 1.6 or Rule 3.3 would permit or require
            with respect to a client or when the information has become generally
            known.

     Based on the facts presented, the matters in which the inquiring attorney represented the former

clients are unrelated to the boundary dispute. The proposed representation is permissible under Rule
1.9 as long as it does not involve disclosure of confidential information about the former clients that
could be used to their detriment.