I represented both spouses in an adoption years ago, and now I represent the husband alone in their marital dispute. The wife says I have a conflict from the adoption representation. Will the ethics panel rule on whether I can continue?

Plain-English summary

An attorney asked the panel whether he could continue representing his client, Mr. X, in a marital dispute. Mrs. X alleged that the attorney could not properly represent Mr. X because the attorney had represented both Mr. and Mrs. X roughly four years earlier when they adopted a child together. The attorney stated he had not spoken with Mrs. X since the adoption and had represented Mr. X since 1972.

The panel stated that if Mrs. X was correct that the attorney had access to information from her that could influence the outcome of the marital dispute, continued representation of Mr. X would not be proper. But based on the information in the attorney's letter, the panel found itself unable to reach any conclusion about whether such pertinent, privileged information had actually been conveyed. The panel explained that its "single party" procedure was not equipped to resolve a request of this nature, and that this type of contested fact situation had to be resolved in an adversarial proceeding, such as the one the attorney stated was already pending in Family Court.

The panel quoted its own Rule 2 ("Jurisdiction"), noting that two of its seven grounds for declining an opinion were pertinent: that the request contains insufficient information for the panel to make a judgment, and that the request does not meet Rule 3's form requirements, including a representation that the opinion will not affect the interests of parties to a pending action. On this basis, the panel declined to exercise jurisdiction over the inquiry.

Currency note

This opinion was issued in February 1989, shortly after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: I jointly represented a couple in an adoption years ago, and now one spouse's ex objects to me representing the other spouse in their divorce. Will the ethics panel decide if I have a conflict?

A: Not once the matter is in litigation and the facts are disputed, according to this opinion. The panel held that Panel Rules 2(e), 2(f), and 3 bar it from resolving contested factual questions like whether privileged information was actually conveyed; that must be decided in the pending proceeding.

Q: What would have made the conflict real, in the panel's view?

A: The panel stated that if Mrs. X was correct that the attorney "had access to information from her which could influence the outcome of the marital dispute," continued representation of Mr. X would not be proper, but it could not determine on the record whether that had actually happened.

Background and rules framework

The opinion applies the Ethics Advisory Panel's own procedural jurisdiction rules, Rule 2 (permitting declination on several grounds, including insufficient information and noncompliance with Rule 3) and Rule 3 (requiring a representation that the opinion will not affect the interests of parties to a pending action), to a contested-fact conflict-of-interest question already before the Family Court.

Citations and references

Rules of Professional Conduct:

• RI EAP Rule 2(e) (declining an opinion where the request lacks sufficient information)
• RI EAP Rule 2(f) (declining an opinion where the request does not meet Rule 3's form)
• RI EAP Rule 3 (requiring a representation that the opinion will not affect parties to a pending action)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Opinion 88-19: Panel Declines to Rule on Continued Representation of One Current Client Against Another in a Pending Contract Dispute
• RI EAP Opinion 88-24: Panel Declines to Opine on Recommending an Expert Witness Association, Request Made on the Association's Behalf

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%2089-03.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

DIGEST OF ETHICS ADVISORY PANEL
OPINION #89-3, REQUEST #45
Issued February 21, 1989

An attorney seeks Panel advice as to whether he may continue to represent his client, Mr. X, in a marital dispute under the circumstances he outlines. The attorney advises the Panel that Mrs. X alleges that he may not properly represent Mr. X because he represented both Mr. and Mrs. X when they adopted a child approximately four years ago. The attorney states that he has not conversed with Mrs. X since the adoption. He states that he has represented Mr. X since 1972.

The Panel believes that if Mrs. X is correct in her belief that the attorney had access to information from her which could influence the outcome of the marital dispute, then it would not be proper for the attorney to continue to represent Mr. X. Based on the information contained in the inquiring attorney's letter, however, the Panel finds that it is in not position to come to any conclusions as to whether such pertinent, privileged information has been conveyed.

The Panel finds that its "single party" procedure is not equipped to respond to a request for an opinion of this nature. The Panel believes that this type of contested fact situation must be resolved in an adversarial proceeding such as the one which the attorney states is presently pending in the Family Court.

Ethics Advisory Panel Rule 2, entitled "Jurisdiction," provides, that the Panel may decline to render an advisory opinion if any of seven specific circumstances exist.

Two of these circumstances are pertinent in the instant case.

(e) The request contains insufficient information on which the Panel can made a judgment.

and

(f) The request is not in the form required by Rule 3 hereof.

Rule 3 sets forth the required form for all advisory opinion requests. It provides, in pertinent part:

3. FORM OF REQUEST. A request shall be in writing, shall set out the factual situation in detail and, if possible, the applicable sections of the Code of professional responsibility. It shall also contain a representation by the inquirer that the factual situation described directly affects the inquirer's professional conduct and that the Opinion of the panel will not affect interests of parties to any pending action. (Emphasis supplied)

The Panel declines to exercise jurisdiction to respond to your inquiry in view of the requirements of Panel Rules 2 and 3.

Ethics Advisory Panel advice is protective in nature. There is no requirement that an attorney abide by a Panel opinion, but if he or she does, he or she is fully protected from any charge of impropriety.