I once drafted powers of attorney for a woman's parents that named her as successor agent, but I never represented her. Can I now represent her husband in their divorce?

Plain-English summary

The inquiring attorney was asked to represent a husband in an imminent divorce. The attorney had previously drafted financial and health care powers of attorney for the wife's parents, documents that designated the wife as successor attorney-in-fact and alternate health care agent. The attorney had never performed legal work for the wife herself, though the attorney had used a pet-care facility the husband and wife own and operate. The attorney asked whether representing the husband in the divorce presents a conflict.

The panel concluded it does not. Because the attorney never performed legal work for the wife, she is not a former client to whom the attorney owes duties under the Rules. The attorney's former clients were the wife's parents. To the parents, the attorney continues to owe obligations under Rule 1.6 (confidentiality of information) and Rule 1.9 (duties to former clients), including, if the attorney happened to learn information about the wife during and relating to the parents' representation, the Rule 1.9(c)(2) duty not to reveal information relating to that representation except as the Rules would permit.

The panel added that the attorney's previous business relationship with the husband and wife's pet-care facility does not present a conflict. It therefore concluded that drafting the powers of attorney for the wife's parents, in which the wife was designated successor attorney-in-fact and alternate health care agent, does not create a conflict of interest in representing the husband in the divorce against the wife.

In practice

Under this opinion, and under the Rhode Island rules as they stood at the time, drafting estate-planning documents for a person's parents that merely name that person as a successor agent does not make that person a former client or bar the lawyer from later opposing her. The panel held the wife was never a client, so no former-client conflict arises, while the lawyer's duties of confidentiality and loyalty under Rules 1.6 and 1.9 continue to run to the parents, including a duty not to reveal information about the wife learned in that representation. The opinion holds the lawyer's prior patronage of the couple's business likewise creates no conflict.

Common questions

Q: Does drafting documents for someone's parents make that person my former client?

A: The panel said no. Because the attorney never performed legal work for the wife, she is not a former client; the former clients were her parents.

Q: Can I represent the husband in the divorce against the wife?

A: The panel said yes. Drafting powers of attorney for the wife's parents naming her as a successor agent does not create a conflict in representing the husband against the wife.

Q: What duties do I still owe from the earlier representation?

A: The panel said the attorney owes the parents continuing confidentiality and loyalty under Rules 1.6 and 1.9, including, under Rule 1.9(c)(2), not revealing any information about the wife learned during and relating to the parents' representation.

Q: Does having used the couple's business create a conflict?

A: The panel said no. It did not believe the attorney's previous business relationship with the couple's pet-care facility presents a conflict.

Background and rules framework

The opinion applies Rule 1.9 (Model Rule 1.9, duties to former clients), including paragraph (c)(2) barring revelation of information relating to a former client's representation, and Rule 1.6 (Model Rule 1.6, confidentiality of information). The analysis turns on identifying who the lawyer's client was: the wife's parents were the former clients, while the wife, having never received legal work from the attorney, is not a client and is owed no former-client duties.

Citations and references

Rules of Professional Conduct:

• MR 1.9 (duties to former clients; paragraph (c)(2))
• MR 1.6 (confidentiality of information)
• RI RPC 1.9, 1.6

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 2025-05: Opposing a Former Firm's Client Where the Lawyer Acquired No Material Information
• RI EAP Op. 2016-06: Confidences From a Prospective Client
• RI EAP Op. 2024-12: Testifying About a Former Client to Defend an Ineffective-Assistance Claim

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%2016-09.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Rhode Island Supreme Court
Ethics Advisory Panel Op. 2016-09
Issued November 3, 2016

FACTS

The inquiring attorney was asked by Husband to represent him in an imminent divorce action. The inquiring attorney states that he/she previously drafted financial and healthcare powers of attorney for Wife's parents in which Wife was designated as the successor attorney-in-fact and the alternate health care agent. The inquiring attorney states that he/she has never performed legal work for Wife. Husband and Wife also own and operate a pet care facility, which the inquiring attorney previously used to care for his/her dog.

ISSUE PRESENTED

The inquiring attorney seeks the Panel's opinion about whether representing Husband in a divorce action against Wife presents a conflict of interest.

OPINION

The inquiring attorney's drafting of financial and healthcare powers of attorney for Wife's parents in which Wife is designated the successor attorney-in-fact and alternate healthcare agent, does not present a conflict of interest in the inquiring attorney's representation of Husband in a divorce action against Wife.

REASONING

The inquiring attorney has never performed legal work for Wife, and therefore Wife is not a former client to whom the inquiring attorney owes obligations under the Rules of Professional Conduct. The inquiring attorney's former clients were Wife's parents. To them, the inquiring attorney owes obligations under the Rules, including obligations of confidentiality and loyalty under Rule 1.6 (Confidentiality of information) and Rule 1.9 (Duties to former client). In the event the inquiring attorney learned information about Wife during and relative to the representation of her parents, the inquiring attorney is prohibited from revealing it under paragraph (c)(2) of Rule 1.9 which states:

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: ***

(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

The Panel does not believe that the inquiring attorney's previous business relationship with Husband and Wife's pet care facility presents a conflict of interests.

The Panel concludes that the inquiring attorney's drafting of financial and healthcare powers of attorney for Wife's parents in which Wife is designated the successor attorney-in-fact and alternate healthcare agent, does not present a conflict of interest in the inquiring attorney's representation of Husband in a divorce action against Wife.