I represented a corporate client on zoning approvals for a development in one town back in 2005, and the matter is long over. The company later interviewed me (but hired someone else) for a new development in a different town, and now neighbors opposing that new project want me to represent them against the company. Is that a conflict?

Plain-English summary

The inquiring attorney represented a corporate client in 2005 in petitions before a city zoning board; that matter concluded and the attorney had no further involvement with the client. The client later planned a development in a different town, and representatives who had worked with the attorney in 2005 recommended the attorney to corporate representatives handling the new project. In March 2007 the attorney had lunch with those representatives, discussing the attorney's general approach to zoning matters and past work, and the representatives asked about the attorney's contacts and prior work in the new town, disclosing they were considering several Rhode Island zoning lawyers; no plans, drawings, or substantive project information were discussed. The company ultimately hired a different firm. In April 2007, individuals who abutted the new development site and opposed it asked the inquiring attorney to represent them against the company.

The panel applied Rule 1.9, quoting subsections (a) and (c) in full. It found the corporate client a former client whose 2005 zoning matter concluded with no further involvement except the 2007 interview-style lunch, at which no substantive information about the new matter was shared. Because the new representation of the opposing individuals concerned a different town's development and was not the same or substantially related to the concluded 2005 zoning matter, the panel concluded there was no Rule 1.9 conflict and the representation is permissible. The panel added that the attorney remains bound by Rule 1.9(c) not to use information from the former representation to the former client's disadvantage or reveal it except as the Rules permit or require.

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, a lawyer's former representation of a corporate client in a concluded zoning matter for one development does not create a Rule 1.9 conflict against later representing opponents of that same client's unrelated development in a different town, where the two matters are not the same or substantially related and an intervening interview-style meeting did not involve substantive information about the new matter. The lawyer nonetheless remains bound by Rule 1.9(c)'s bar on using or revealing information from the former representation.

Common questions

Q: I represented a company on one project years ago. Can I now represent opponents of that same company's unrelated project in a different town?

A: Yes, according to this opinion, if the two matters are not the same or substantially related, as the panel found here between a concluded 2005 zoning matter and a new, unrelated development in a different town.

Q: Does it matter that the company interviewed me for the new project before hiring someone else?

A: Not on these facts. The panel found the interview lunch involved no substantive project information, so it did not change the substantial-relationship analysis or otherwise create a conflict.

Q: What obligations remain even where Rule 1.9(a) doesn't bar the new representation?

A: The panel held the attorney remains bound by Rule 1.9(c): the attorney must not use information from the former representation to the former client's disadvantage, and must not reveal that information except as the Rules permit or require.

Background and rules framework

The opinion applies Rule 1.9(a), (c) (Conflict of Interest: Former Client), the Model Rule counterpart of the same number, quoted in full. Subsection (a) bars representing another person in the same or substantially related matter materially adverse to a former client absent informed consent confirmed in writing; subsection (c) independently bars using or revealing information from the former representation.

Citations and references

Rules of Professional Conduct:

• MR 1.9(a), (c) (Conflict of Interest: Former Client) / RI Rule 1.9(a), (c)

See also

• RI EAP Op. 2001-08: Substantial Relationship Test for Adjacent-Parcel Representations
• RI EAP Op. 2005-10: Sale of Corporate Assets to a New Owner Creates No Rule 1.9 Conflict Absent Adverse Interests to the Former Client

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%202007-07.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. 2007-07 Request No. 936
                             Issued June 7, 2007

FACTS

    The inquiring attorney represented a corporate client in 2005 in petitions before a

city zoning board. The inquiring attorney states that the matter has been fully adjudicated,
and that he/she has had no further involvement with the client.

    The client now has plans to develop real estate in another town. Representatives of

the client who worked with the inquiring attorney in 2005 recommended the inquiring
attorney to corporate representatives who are assigned to the project in the other town. In
March 2007, the inquiring attorney had lunch with corporate representatives for the new
project, at which time there was discussion about the company's intention for the project in
the other town. The inquiring attorney states that at the lunch there was discussion about
the general philosophy of how he/she represents zoning clients, and of his past work. The
company representatives inquired about the inquiring attorney's contacts in the town and
about whether he/she had done other work in the town. They informed the inquiring
attorney that they were speaking with and considering several other Rhode Island zoning
lawyers about providing legal services related to the project. The inquiring attorney states
that no plans or drawings were presented, and no substantive information was discussed
relative to the project.

   The company hired another law firm for the development in the other town. In

April 2007 individuals who abut the site of the client's proposed development in the other
town and who oppose the development requested the inquiring attorney to represent them.

ISSUE

    The inquiring attorney asks whether it would be a conflict of interest to represent

the individuals against his/her former corporate client.

OPINION

   Pursuant to Rule 1.9 of the Rules of Professional Conduct, the inquiring attorney's

representation of individuals who oppose a former client's development of real estate in
one town after he/she represented the client in zoning matters for a development in another
town is permissible, as the matters are not the same or substantially related.
Final 2007-07
Page 2

REASONING

    The corporate client is a former client of the inquiring attorney, and therefore Rule

1.9 applies. After the conclusion of the matter in 2005, the inquiring attorney had no
further involvement with the client except a luncheon meeting two years later with
company representatives who were considering several other lawyers for the project in the
other town. That meeting was in the nature of an interview at which no substantive
information about the new matter was discussed. Rule 1.9 states in pertinent part:

            (a) A lawyer who has formerly represented a client in a matter
            shall not thereafter 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
            dormer client gives informed consent confirmed in writing.
                                          ***
            (c) A lawyer who formerly represented a client in a matter or whose
            present or former firm has formerly represented a client in a matter shall not
            thereafter;

                (1) use information relating to the representation to the disadvantage of
                the former client except as these Rules would permit or require with
                respect to a client or when the information has become generally
                known; or
               (2) reveal information relating to the representation except as these
               Rules would permit or require with respect to a client.

    The subject of the inquiring attorney's representation of the individuals who oppose

the former client's development of real estate in the other town is not the same or
substantially related to the zoning matters in which he/she represented the former client in
its development in another town. The Panel concludes that the inquiring attorney's
previous representation of the company does not represent a conflict of interest in the
proposed representation of the individuals, and that therefore, the representation of the
individuals is permissible.

     The Panel advises that in compliance with Rule 1.9(c) the inquiring attorney shall

not use information related to the former representation to the disadvantage of the former
client, and shall not reveal information relating to the former representation except as the
Rules permit or require.