I used to represent a husband and wife together on the wife's immigration status. The applications were withdrawn and the marriage has now broken down. The wife wants me to represent her in a new application where she'll claim the husband subjected her to extreme cruelty. Can I take that case?

Plain-English summary

Several years earlier, the inquiring attorney had represented Wife (an alien) and Husband (a U.S. citizen) together in Husband's application for an immigrant visa and adjustment of status for Wife. Husband withdrew that application after a disagreement; the couple reconciled and had the attorney file a second application, which Husband also withdrew after another disagreement. Wife later asked the attorney to represent her in a new application for permanent residence, this time asserting that Husband had subjected her to extreme cruelty. The attorney stated having no knowledge of the extreme-cruelty allegations during the prior joint representation.

The panel applied Rule 1.9, quoting its bar on representing another person in the same or a substantially related matter materially adverse to a former client absent consent after consultation. It found Wife's own application substantially related to the two prior joint applications, and found the cruelty allegations and supporting testimony materially adverse to Husband's interests.

The panel then addressed whether Husband could waive the conflict, and concluded he could not. It quoted Rule 1.7's commentary on consultation and consent, including the principle that a lawyer cannot properly seek a client's consent where a disinterested lawyer would conclude the client should not agree, and that consent is impossible to obtain properly where the disclosure needed for one client's informed decision cannot be made because another client will not consent to it. Here, the attorney would need to fully disclose Wife's allegations and their negative impact on Husband to get Husband's informed consent, but owed Wife duties of confidentiality and loyalty that might prevent that disclosure. The panel found these dual obligations irreconcilable and concluded a disinterested lawyer would conclude Husband should not consent, making the conflict nonwaivable.

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, a former joint representation can produce a nonwaivable Rule 1.9 conflict when a new matter for one former co-client is substantially related to the prior joint representation and materially adverse to the other former co-client, if the lawyer cannot make the disclosure necessary for informed consent without breaching confidentiality or loyalty duties to the client seeking the new representation.

Common questions

Q: I jointly represented a couple on an immigration matter that fell apart. Can I later represent one spouse against the other on a related claim?

A: Not if the new matter is substantially related to the joint representation and materially adverse to the other former client, per this opinion's application of Rule 1.9.

Q: Can the former client I'd be adverse to just consent to waive the conflict?

A: Not always. The panel held the conflict here was nonwaivable, because giving that client the disclosure needed for informed consent would require breaching confidentiality and loyalty duties to the new client.

Q: What made this conflict nonwaivable rather than just a conflict requiring consent?

A: The panel's finding that the lawyer could not reconcile the duty to fully disclose the allegations to Husband (for his informed consent) with duties of confidentiality and loyalty to Wife, combined with its conclusion that a disinterested lawyer would advise Husband against consenting.

Background and rules framework

The opinion applies Rule 1.9 (Conflict of Interest: Former Client), the Model Rule counterpart of the same number, quoted in full, covering both the substantially-related-matter bar in subsection (a) and the use-of-information bar in subsection (b). It also applies Rule 1.7's commentary on consultation and consent, quoted at length, for the standard governing when a conflict cannot properly be waived even with a client's purported consent.

Citations and references

Rules of Professional Conduct:

• MR 1.9(a), (b) (Conflict of Interest: Former Client) / RI Rule 1.9(a), (b)
• MR 1.7 commentary (consultation and consent) / RI Rule 1.7 commentary

See also

• RI EAP Op. 2001-05: Conflict Barring Representation Against a Former Client Over the Same Property
• Alabama State Bar Op. 1990-03: Lawyer Should Not Undertake Representation Adverse to Former Client in a Substantially Related Matter

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%202004-06.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. 2004-06 Request No. 884 Issued October 27, 2004

FACTS

Several years ago, the inquiring attorney represented Wife, who was an alien, and Husband, a United States citizen, in the application of Husband for an immigrant visa and an adjustment of status to that of permanent United States citizen for Wife. The Husband subsequently withdrew the application after he and Wife had a disagreement. The couple reconciled and engaged the inquiring attorney to file a second application. After another disagreement, Husband withdrew the second application.

The inquiring attorney states that Wife is presently in a position to obtain lawful permanent residence in the United States based on her bona fide relationship with Husband, a United States citizen, and based also on a claim that she had been subjected to extreme cruelty by Husband. Wife has asked the inquiring attorney to represent her in her application for permanent residence in which Wife will assert and offer evidence that Husband subjected her to extreme cruelty. The inquiring attorney states that he/she had no knowledge of Wife’s extreme cruelty claims during his/her prior representation of Husband and Wife.

ISSUE PRESENTED

May the inquiring attorney represent Wife in an application for permanent U.S. residence in which she claims extreme cruelty by Husband where the inquiring attorney formerly represented Husband in an application for immigrant visa and permanent residence for Wife?

OPTION

No. The inquiring attorney has a nonwaivable conflict of interest pursuant to Rule 1.9, and therefore is prohibited from representing Wife in her application for permanent residence.

REASONING

Husband is a former client of the inquiring attorney. Therefore Rule 1.9 applies.
The Rule states:
Final Op. 2004-06
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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 Panel concludes that the inquiring attorney has a conflict of interest pursuant to Rule 1.9. Wife’s own application for adjustment of status to that of permanent resident is substantially related to the two prior applications for immigrant visa and status adjustment filed by Husband for Wife. In the application which Wife now seeks to file, she will assert among other things that Husband subjected her to extreme cruelty. These assertions and testimony that will support them are materially adverse to the interests of Husband.

The Panel must next resolve whether the conflict of interest under these facts is waivable by Husband. The Panel believes it is not.

The Comment to Rule 1.7 regarding consultation and consent vis a vis conflicts of interest is instructive. It states:

A client may consent to representation notwithstanding a conflict. However, as indicated in paragraph (a)(1) with respect to representation directly adverse to a client, and paragraph (b)(1) with respect to material limitations on representation of a client, when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client’s consent.
When more than one client is involved, the question of conflict must be resolved as to each client. Moreover, there may be circumstances where it is impossible to make the disclosure necessary to obtain consent. For example, when the lawyer represents different clients in related maters and one of the clients refuses to consent to the disclosure necessary to permit the other client to make an informed decision, the lawyer cannot properly ask the latter to consent.
Final Op. 2004-06
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The inquiring attorney has an obligation to fully disclose and fully explain to Husband the nature of Wife’s allegations and their intrinsically negative impact on Husband’s interests. Consultation must be meaningful, and consent must be informed. At the same time, the inquiring attorney has duties of confidentiality and loyalty to Wife who may refuse to consent to all the disclosures necessary to permit Husband to make an informed decision. The Panel is of the opinion that the inquiring attorney cannot reconcile these dual obligations. Moreover, the Panel believes that a disinterested lawyer would conclude that Husband should not consent to the inquiring attorney’s representation of Wife under these facts.

The Panel concludes that the inquiring attorney has a conflict of interest which is not waivable. As such, the inquiring attorney cannot properly seek the Husband’s consent. The Panel advises the inquiring attorney to decline the representation of Wife in her application for adjustment of resident status.