Years ago, before I became town solicitor, two residents consulted me about the town's plan to close a landfill and monitor groundwater there. I never took on their representation. Now, as solicitor, I'm handling a dispute over siting a new municipal facility on an adjacent lot, and those same two residents are opposing it as part of a citizens group. Do I have a conflict?
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This page answers the general question as of 2005. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The inquiring attorney served as solicitor for a municipality considering alternative sites, including Lot X (adjacent to the municipality's closed landfill), for a municipal facility. A citizens group, including two owners of lots across from the landfill, organized to resist using Lot X and hired its own counsel. Five years earlier, before the attorney became solicitor, those same two individuals had consulted the attorney about the municipality's plan to permanently close the landfill and monitor groundwater in the area; the attorney did not recall discussing Lot X and never took on the representation beyond that consultation. One of the individuals suggested the prior consultation disqualified the attorney from serving as solicitor on the Lot X matter.
The panel quoted Rule 1.9 in full and found that, even though the consultation never became a full representation, the confidentiality and conflicts rules still attached. It compared the subject matter of the prior consultation (landfill closure and groundwater monitoring) to the subject matter of the current controversy (siting a facility on Lot X, adjacent to the closed landfill) and found them not the same or substantially related, even though the two individuals, as area property owners, had an interest in both. The panel therefore concluded the attorney had no Rule 1.9 conflict in representing the municipality on the site search.
The panel separately confirmed the attorney's ongoing Rule 1.6 confidentiality obligation to the two individuals from the consultation, citing its own prior Opinion 95-26 for the principle that a client's failure to pay a fee and a lawyer's failure to commence work after an initial consultation do not negate the attorney-client relationship. Under Rule 1.9(b), the attorney may not use any confidential information learned during the consultation to the two individuals' disadvantage.
In practice
The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, a Rule 1.9 conflict turns on whether the current and prior matters are the same or substantially related, not merely on whether the same individuals have an interest in both. The opinion also holds that a brief initial consultation that never becomes a full representation still triggers Rule 1.6 confidentiality and the Rule 1.9(b) bar on using information learned in that consultation to the individual's disadvantage, even where Rule 1.9(a)'s substantial-relationship bar does not apply.
Common questions
Q: Someone I briefly consulted with years ago, but never formally represented, is now opposing a matter I'm handling for a different client on a related property or issue. Is that automatically a conflict?
A: Not automatically. The panel held the test is whether the current and prior matters are the same or substantially related, not whether the same individuals have an interest in both.
Q: I never took on the representation after the initial consultation. Do I still owe that person any duties?
A: Yes. The panel held the confidentiality obligation under Rule 1.6 attaches even to an initial consultation that never became a full representation, citing its own prior Opinion 95-26.
Q: What's the difference between the Rule 1.9(a) analysis and the Rule 1.9(b) analysis here?
A: The panel treated them separately: Rule 1.9(a)'s substantial-relationship test determined whether the attorney had a disqualifying conflict at all (it did not, here), while Rule 1.9(b) independently bars using confidential information from the consultation to the individuals' disadvantage, regardless of that outcome.
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, and Rule 1.6 (Confidentiality of Information), relied on for the ongoing duty owed from an initial consultation. It relies on the panel's own Opinion 95-26 for the proposition that an unpaid, uncommenced consultation still forms an attorney-client relationship for confidentiality purposes.
Citations and references
Rules of Professional Conduct:
- MR 1.9(a), (b) (Conflict of Interest: Former Client) / RI Rule 1.9(a), (b)
- MR 1.6 (Confidentiality of Information) / RI Rule 1.6
Other opinions cited:
- Rhode Island Ethics Advisory Panel Op. 95-26: a client's nonpayment of a fee and a lawyer's not commencing work after an initial consultation do not negate the attorney-client relationship
See also
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%202005-02.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. 2005-02 Request No. 893
Issued February 24, 2005
FACTS
The inquiring attorney is a solicitor for a municipality. The municipality is in the
process of considering alternative sites for a municipal facility. One of the sites, Lot X, is a
lot that is adjacent to the municipality’s closed landfill. Several residents in the area of Lot
X have organized a citizens group to resist the use of Lot X for the facility. To that end the
group has hired attorneys to represent it.
Two members of the citizens group are owners of lots across from the closed
landfill. Some five years ago, and before the inquiring attorney became the solicitor, they
consulted with the inquiring attorney to discuss their concerns about the municipality’s
plan to permanently close the landfill, and about monitoring of groundwater in the area of
the landfill thereafter. The inquiring attorney states that he/she does not recall discussing
Lot X with the two individuals. He/she also states that although there was a consultation
with the individuals, he/she did not thereafter take on the representation. One of the
individuals recently suggested to the inquiring attorney that he/she could not serve as
solicitor on matters relating to the placement of the facility on Lot X because of the prior
consultation.
ISSUE PRESENTED
The inquiring attorney asks whether he/she has a conflict of interest in representing
the municipality as solicitor in this matter.
OPINION
The matters are not “the same or substantially related” and the inquiring attorney
does not have a conflict of interest in representing the municipality in the current
controversy.
REASONING
Even though the inquiring attorney did not represent the individuals beyond the
initial consultation, the Rules of Professional Conduct pertaining to confidentiality and
2005-02
Page 2
conflicts of interest attach. Rule 1.9 relating to conflicts of interest with former clients
states:
Rule 1.9. Conflict of Interest: Former Client. - A lawyer
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.
According to the inquiring attorney, the subject matter of the consultation with the
two individuals was limited to discussions about the municipality’s plan to permanently
close the landfill, and groundwater problems in the area of the landfill. The subject of the
current controversy is the use of Lot X which is adjacent to the now closed landfill for a
municipal facility. As owners of real estate in the area the two individuals who consulted
with the inquiring attorney would have an interest in both controversies. Still in all, the
subject matter of the current controversy i.e. placing a facility on Lot X, is not the same or
substantially related to the subject matter of the previous controversy which was the
closing of the landfill and monitoring of groundwater in the area. Therefore, the inquiring
attorney does not have a conflict of interest in representing the municipality in the current
search for a site for the proposed facility and controversies surrounding it.
The inquiring attorney has an obligation of confidentiality to the two individuals
pursuant to Rule 1.6. See Rhode Island Ethics Advisory Panel Op. 95-26 (facts that
client did not pay fee and attorney did not commence work after initial consultation do
not negate attorney-client relationship.) Under Rule 1.9(b), the inquiring attorney may
not use confidential information he/she may have learned during the consultation with the
two individuals to their disadvantage.
The Panel’s guidance is restricted to interpretations of the Rules of Professional
Conduct and does not extend to issues under the State Ethics Code or any other rules,
regulations or laws that may have bearing on the issues raised by this inquiry.
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