Years ago I helped a company get regulatory approval for one parcel of land. Now a different company wants me to represent it on an adjacent parcel before the same agency, and my former client objects. 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 Treat this page as historical context, not current guidance.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

About three and a half years earlier, the inquiring attorney had assisted another lawyer representing Company A in purchasing Parcel A, doing regulatory-compliance work before a specific agency; the attorney's last contact with Company A or its counsel was about two and a half years before this inquiry, and the attorney did not know whether Company A had exercised its purchase option. Company B later asked the attorney to represent it in developing Parcel B, an adjacent parcel requiring approval from the same regulatory agency. Company A objected to the agency and to the attorney directly, but the attorney stated that no information from the Company A representation was relevant or material to the Company B matter.

The panel first found Company A was a former, not current, client: there had been no ongoing relationship, the Company A matter was the only time that company had retained the attorney's firm, and there had been no contact for roughly two and a half years. That made Rule 1.9, not Rule 1.7, the governing provision. The panel quoted the commentary to Rule 1.9, which states that a lawyer who recurrently handled a type of problem for a former client is not barred from later representing another client in a wholly distinct problem of that type, even adversely to the prior client.

Applying that framework, the panel found that beyond the parcels being adjacent and both requiring approval from the same regulatory agency, it could not determine from Company A's objection letter or the other information provided what, if any, substantive connection existed between the two representations. It concluded that if the matters are not substantially related, representing Company B would not violate Rule 1.9, leaving the substantial-relationship determination itself unresolved on the record before it.

Common questions

Q: Does representing a new client on an adjacent parcel automatically conflict with a former client I represented on the neighboring parcel?

A: No. The panel held adjacency and use of the same regulatory agency alone do not establish a substantial relationship; the two matters must actually be substantially related for Rule 1.9 to bar the representation.

Q: Who decides whether the matters are "substantially related"?

A: In this opinion, the panel found it could not make that determination from the facts and the former client's objection letter alone, and conditioned its conclusion on that unresolved factual question.

Q: Does it matter that I only represented the former client once, a few years ago?

A: Yes. The panel treated the lack of an ongoing relationship and the lapse of time since the last contact as supporting the conclusion that the company was a former, not current, client, which is what made Rule 1.9 (rather than the stricter current-client rule) the applicable provision.

Background and rules framework

The opinion applies Rule 1.9(a) (Model Rule 1.9, Duties to Former Clients), which bars representing another person in the same or a substantially related matter materially adverse to a former client absent consent. The panel relied on the rule's commentary distinguishing a "wholly distinct problem" of a recurring type from a substantially related matter, and on the threshold determination that the objecting party was a former, not current, client.

Citations and references

Rules of Professional Conduct:

• MR 1.9(a) (Duties to Former Clients) / RI Rule 1.9(a), including commentary on recurring-problem representations

See also

• ABA Formal Op. 99-415: Representation Adverse to Organization by Former In-House Lawyer
• RI Ethics Advisory Panel Op. 2001-06: No Conflict Where Former Clients Are Witnesses in an Unrelated Matter
• RI EAP Op. 2002-03: Former-Client Conflict Bars Representing Dissenting School Committee Members, Imputed to the Firm
• RI EAP Op. 2007-07: Representing Opponents of a Former Corporate Client's Development in a Different Town Is Permissible Absent a Substantial Relationship

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%202001-08.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. 2001-08 - Request No. 837
                            Issued November 8, 2001

FACTS:

    About three and one- half years ago, the inquiring attorney assisted another attorney in

representing the other attorney's client, Company A, in connection with the purchase of a parcel
of real estate (Parcel A). Company A had an option to purchase the real estate. The inquiring
attorney was asked to provide legal services relating to compliance with the requirements of the
applicable regulatory agency. The inquiring attorney attended meetings with Company A and its
attorney, reviewed and evaluated site reports, attended meetings with consulting firms, reviewed
and evaluated applicable laws and regulations, and communicated with the applicable regulatory
agency. The inquiring attorney's last communication with either Company A or its attorney on
this matter was about two and one-half years ago. The inquiring attorney states that he/she does
not know whether Company A exercised its option to purchase the property.

   Recently, Company B has requested that the inquiring attorney represent it in connection

with the development of real estate (Parcel B) that requires approvals by the same regulatory
agency. Parcel B is adjacent to Parcel A. Company A has submitted comments to the regulatory
agency objecting to Company B's project. In a letter from Company A's counsel, the inquiring
attorney has been advised that Company A objects to the inquiring attorney's representation of
Company B. A copy of the letter was submitted to the Panel. The inquiring attorney states that
no information gained from the representation of Company A is relevant or material to the
representation of Company B.

ISSUE PRESENTED:

    The inquiring attorney asks whether his/her representation of Company B presents a

conflict of interest.

OPINION:

    Company A is a former client of the inquiring attorney, and therefore Rule 1.9 applies.

Aside from the fact that Parcel A and Parcel B are adjacent parcels, the Pane l is unable to
determine from Company A's objection letter and other information provided by the inquiring
attorney what connection exists, if any, between the prior and the proposed representations. The
Panel concludes that, if the two matters are not substantially related, the inquiring attorney's
representation of Company B would not present a conflict of interest pursuant to Rule 1.9.
Final 2001-08
Page 2

REASONING:

    The inquiring attorney has had no communication with either Company A or its attorney

for almost two and one-half years. There does not appear to be a continuing or long-standing
attorney-client relationship between Company A and the inquiring attorney. The inquiring
attorney has stated that the prior representation was the first and only time Company A had
retained his/her firm. The Panel believes that the representation of Company A was terminated,
and concludes that Company A is a former client of the inquiring attorney. Therefore, Rule 1.9
applies to these circumstances. 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.

     The Commentary to Rule 1.9 is also instructive. It states, ". . . a lawyer who recurrently

handled a type of problem for a former client is not precluded from later representing another
client in a wholly distinct problem of that type even though the subsequent representation
involves a position adverse to the prior client." The subject of the prior representation of
Company A was Parcel A. The subject of the representation of Company B will be Parcel B
which is adjacent to Parcel A. Aside from the fact that these are adjacent parcels, the Panel is
unable to determine from either Company A's objection letter or from other information
provided by the inquiring attorney what connection exists, if any, between the prior and the
proposed representations. The Panel concludes that, if the two matters are not substantially
related, the inquiring attorney's representation of Company B would not present a conflict of
interest pursuant to Rule 1.9.