I used to represent Mr. Y before the City Planning Board, where Mr. X (a Board member at the time) raised a boundary dispute between his property and Mr. Y's. I no longer represent Mr. Y, and Mr. X now wants me to represent him in that same boundary dispute against Y. Can I take the case?

Plain-English summary

An attorney asked the panel whether he could properly represent Mr. X, a former member of the City Planning Board, in a matter arising from a hearing where the attorney had previously represented Mr. Y before the Board while Mr. X was still a Board member. During one of those hearings, Mr. X raised a boundary line dispute between his property and Mr. Y's property. The attorney had not examined title to Mr. Y's property or given any opinion on the boundary during that representation. He no longer represented Mr. Y, having forwarded Mr. Y's file to new counsel, and Mr. X had now asked him to represent Mr. X in resolving the X-Y boundary dispute.

The panel quoted Rule 1.9, which bars a lawyer who has formerly represented a client in a matter from later representing another person in the same or a substantially related matter where that person's interests are materially adverse to the former client's, absent the former client's consent after consultation. It noted this prohibition traced to former Canon 4 of the Code of Professional Responsibility, and that the First Circuit's "substantial relation" test, recognizing a substantial relation where a lawyer could have obtained confidential information in the first representation relevant to the second, had recently been applied by a federal magistrate in Rhode Island in Putnam Resources, Limited Partnership v. Sammartino Inc., quoting the First Circuit's decision in Kevlik v. Goldstein, which cited Analytica, Inc. v. NPD Research, Inc. with approval. The panel also noted that in Pfarr v. Island Services Co., a federal magistrate applying Rule 1.9 to pre-adoption conduct observed that applying the new Rules would have produced the same result as the prior Canon 4 analysis.

On this basis, the panel held that unless Mr. Y expressly consented after consultation to the attorney's representation of Mr. X, it would violate Rule 1.9 for the attorney to represent Mr. X in the boundary dispute.

Currency note

This opinion was issued in May 1989, shortly after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.9 as originally adopted. 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: Can I represent a new client against a former client if the new matter came up during my prior representation of the former client?

A: Not without the former client's consent, according to this opinion. The panel held Rule 1.9 bars representing the new client in the same or a substantially related matter materially adverse to the former client's interests absent consent after consultation.

Q: What test did the panel use to decide whether the matters were "substantially related"?

A: The panel cited the First Circuit's test from Kevlik v. Goldstein: a substantial relation exists "where a lawyer could have obtained confidential information in the first representation that would have been relevant in the second," which the court will presume was disclosed once that showing is made.

Q: Does it matter that I never actually gave an opinion on the boundary dispute during the earlier representation?

A: The opinion does not treat that fact as dispositive; the panel's holding rests on Rule 1.9's substantial-relation and material-adversity analysis rather than on whether the attorney had already opined on the specific issue.

Background and rules framework

The opinion applies Rule 1.9(a) of the Rhode Island Rules of Professional Conduct, as adopted effective November 15, 1988 (the successor to former Canon 4 of the Code of Professional Responsibility), together with the First Circuit's "substantial relation" disqualification test, to an attorney's proposed representation of a new client in a matter connected to a former client's prior representation.

Citations and references

Rules of Professional Conduct:

• MR 1.9 (duties to former clients)
• RI RPC 1.9(a) (bar on representing a new client adverse to a former client in the same or a substantially related matter)

Statutes:

• None cited.

Cases:

• Kevlik v. Goldstein, 724 F.2d 844 (1st Cir. 1984), the "substantial relation" disqualification test
• Analytica, Inc. v. NPD Research, Inc., 708 F.2d 1263, 1266 (7th Cir. 1983), cited with approval in Kevlik
• Putnam Resources, Limited Partnership v. Sammartino Inc., C.A. No. 87-04148, Report and Recommendation (D.R.I. Jan. 13, 1988), applying the substantial relation test
• Pfarr v. Island Services Co., C.A. No. 88-0312L, Report and Recommendation (D.R.I. Jan. 12, 1989), applying Rule 1.9 and finding the new Rules would have produced the same result as prior law

Other opinions cited:

• None cited.

See also

• RI EAP Opinion 89-07: Representing a Wife After a Paid Consultation on Her Husband's Behalf With His Out-of-State Counsel: the panel's companion opinion from the same session, applying the same Rule 1.9 substantial-relation analysis.

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%2089-06.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 89-6, REQUEST #51
Issued May 4, 1989

An attorney seeks Panel advice as to whether he may properly undertake representation of an individual under the specific circumstances he describes. The attorney states that the individual, Mr. X, was previously a member of the City Planning Board. The attorney explains that he appeared before the Board representing Mr. Y while Mr. X was still a member of the Board. The attorney states that during one of the hearings in which he appeared before the Board representing Mr. Y, Mr. X raised a question concerning a boundary line dispute between his property and Mr. Y's property. The attorney indicates that he neither examined title to Mr. Y's property nor ever gave his opinion as to boundary locations. The attorney advises the Panel that he no longer represents Mr. Y and, in fact that he has forwarded Mr. Y's file to his new attorney. The inquiring attorney states that Mr. X has now asked him to represent him in resolving the X-Y boundary dispute.

Rule 1.9 provides, in pertinent part:

1.9 CONFLICT OF INTEREST: FORMER CLIENT
A lawyer who has 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.

This general prohibition was formerly embodied in Canon 4 of the Code of Professional Responsibility. The United States Court of Appeals for the First Circuit has adopted a "substantial relation" test to assess whether an attorney must be disqualified in view of Canon four. This test was recently applied by the federal magistrate in Putnam Resources, Limited Partnership v. Sammartino Inc., et al, C.A. No. 87-04148, Report and Recommendation, (D.R.I. January 13, 1988), page 3:

The First Circuit in Kevlik v. Goldstein, 724 F.2d 844 (1st Cir. 1984), citing with approval Analytica, Inc. v. NPD Research, Inc., 708 F.2d 1263, 1266 (7th Cir. 1983) has recognized that a substantial relation is found where ". . . a lawyer could have obtained confidential information in the first representation that would have been relevant in the second." Where this showing can be made, the court will assume that during the course of the former representation confidences were disclosed to the attorney bearing on the subject matter of the representation. (citations omitted) (Emphasis supplied).

The United States District Court for the District of Rhode Island again had occasion to apply the substantial relation test in Pfarr et al v. Island Services Co. Inc. et al, C.A. No. 88-0312L, Report and Recommendation, (D.R.I. January 12, 1989). The federal magistrate reviewed Rule 1.9 and observed that although the matter before it involved conduct occurring prior to the Rhode Island Supreme Court's adoption of the Rules of Professional Conduct, "[a]n application of the new Rules would have produced the same result..."

The Panel takes the position that unless Mr. Y expressly consents after consultation to the attorney's representation of Mr. X, it would be a violation of Rule 1.9 for the attorney to represent Mr. X.

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.