May I represent a new client filing an amicus brief that supports my former client's appeal, where the two are on the same side of the issue?

Plain-English summary

The inquiring attorney had represented an individual taxpayer in a superior court declaratory-relief action challenging a municipality's tax assessment; the individual did not prevail and, now acting pro se, has appealed. The lawyer's representation was limited to the superior court action and ended after the decision. A member of a citizen organization of municipal taxpayers now wants the lawyer to represent him in filing an amicus brief supporting the individual's appeal. The former client is himself a member of the organization and would withdraw from membership if that would create a conflict. The lawyer asked whether representing the organization's member is a conflict.

Because the individual is a former client, the panel analyzed the question under Rule 1.9, which governs duties to former clients. Rule 1.9(a) bars a lawyer, absent informed written consent, from representing another person in the same or a substantially related matter in which that person's interests are materially adverse to the former client's interests.

The panel found the proposed amicus representation and the prior superior court representation are substantially related, if not the same matter. But the organization member's interests are not adverse to the former client's; the amicus brief would support the former client's appeal. Because the material-adversity element is not met, the panel concluded the proposed representation is permissible under Rule 1.9. It added that the lawyer must remain mindful of the requirements of Rule 1.9(c) concerning the use and revelation of information relating to the former representation.

In practice

Under this opinion, a former-client conflict under Rule 1.9(a) requires both a substantial relationship between the matters and material adversity between the new client and the former client. The panel held that where the new representation supports the former client's position rather than opposing it, the material-adversity element is absent, so there is no conflict even though the matters are substantially related or the same. The panel identified adversity as the missing element and cautioned that Rule 1.9(c)'s limits on using or revealing former-client information continue to apply.

Common questions

Q: Does a substantial relationship between two matters, by itself, create a former-client conflict?

A: No. The panel applied Rule 1.9(a), which also requires that the new client's interests be materially adverse to the former client's. Here the matter was substantially related, but adversity was missing.

Q: Why was there no conflict when the lawyer would be litigating the same tax issue again?

A: Because the amicus brief supports the former client's appeal rather than opposing it. The panel found the organization member's interests are not adverse to the former client's, so the representation is permissible.

Q: Does the lawyer have any continuing duty to the former client?

A: Yes. The panel advised that the lawyer must be mindful of Rule 1.9(c), which restricts using information relating to the former representation to the former client's disadvantage and restricts revealing that information.

Background and rules framework

The opinion applies Rule 1.9 (Model Rule 1.9, duties to former clients). Rule 1.9(a) prohibits a lawyer who formerly represented a client from representing another person in the same or a substantially related matter in which that person's interests are materially adverse to the former client, unless the former client gives informed consent confirmed in writing. Rule 1.9(c) separately restricts using information relating to the prior representation to the former client's disadvantage and revealing such information. The panel treated the substantial-relationship and material-adversity requirements of 1.9(a) as conjunctive, so the absence of adversity defeats the conflict.

Citations and references

Rules of Professional Conduct:

• MR 1.9 (duties to former clients; paragraphs (a) and (c))
• RI RPC 1.9

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 2017-05: No Conflict Adverse to an Affiliate of a Former Firm's Client
• RI EAP Op. 2025-05: May Oppose Former Firm's Client Absent Material Information

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%202018-03.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. 2018-03
Issued October 11, 2018

FACTS

The inquiring attorney represented an individual taxpayer in a superior court action in which the individual sought declaratory relief related to a municipality's application of tax assessments in favor of a certain project. The individual claimed that the favorable assessment resulted in higher taxes levied on real estate owned by the individual. The individual did not prevail in the lawsuit. The inquiring attorney's representation of the individual was limited to the superior court action, and ended after the superior court's decision. The individual, acting pro se, has filed an appeal from the superior court's decision.

A member of a citizen organization that is made up of taxpayers in the municipality and which has an interest in the underlying tax issues in the individual's appeal, wants to file an amicus brief in the appeal. The member of the citizen organization has asked the inquiring attorney to represent him for this purpose. The individual whom the inquiring attorney represented in the superior court case is a member of the citizen organization, and would withdraw from membership if it would create a conflict of interest for the inquiring attorney.

ISSUE PRESENTED

Is it a conflict of interest for the inquiring attorney to represent the member of the citizen organization?

OPINION

It is not a conflict of interest under Rule 1.9 for the inquiring attorney to represent a member of a citizen organization in the submission of an amicus brief in support of the pro se appeal of a former client.

REASONING

The individual is a former client of the inquiring attorney. Therefore Rule 1.9 of the Rules of Professional Conduct, which is entitled "Duties to former client," applies to this inquiry. The Rule states in pertinent part as follows:

(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 former client gives informed consent, confirmed in writing.

(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:
(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.

Rule 1.9 prohibits a lawyer from representing a person in the same or substantially related matter in which that person's interests are materially adverse to the interests of a former client, unless the former client consents. In the instant inquiry, the inquiring attorney proposes to represent a member of a citizen organization in the submission of an amicus brief in support of his/her former client's pro se appeal. The matter in the inquiring attorney's proposed representation and the matter in his/her prior representation of the former client in the superior court action are substantially related, if not the same. The interests of the organization's member, however, are not adverse to those of the inquiring attorney's former client. Therefore, the inquiring attorney's proposed representation of the prospective client is permissible under the Rules. The Panel further advises that the inquiring attorney must be mindful of the requirements of paragraph (c) of Rule 1.9.

The Panel concludes that it is not a conflict of interest under Rule 1.9 for the inquiring attorney to represent the member of a citizen organization in the submission of an amicus brief in support of his/her former client's pro se appeal.