Months ago, an out-of-state lawyer paid me for a consultation on Rhode Island domestic relations law and procedure for his client, Mr. Doe, though we never discussed the case's specifics. Now Mr. Doe's wife wants me to represent her in their divorce. Can I take her case?

Plain-English summary

An attorney asked the panel whether he could properly represent an individual under the following circumstances. Several months earlier, an out-of-state attorney had met with him to discuss Rhode Island law and procedure in domestic relations matters. The out-of-state attorney told him he represented an individual, Mr. Doe, but there was no discussion of the particulars of Mr. Doe's case. The inquiring attorney billed the out-of-state attorney directly for the consultation. About a month later, Mr. Doe's wife, Mrs. Doe, asked the attorney to represent her in a domestic relations case.

The panel found that the consultation resulted in an employment relationship between the inquiring attorney and the out-of-state attorney, and so the inquiring attorney had an attorney-client relationship with Mr. Doe, albeit a temporary one, centered on an individual whose interests were now specifically and diametrically opposed to Mrs. Doe's. The panel had no information as to whether the attorney actually learned anything relevant to Mrs. Doe's case, but noted that the attorney could have been privy to extremely pertinent data.

The panel quoted Rule 1.8(b), which bars a lawyer from using information relating to representation of a client to the client's disadvantage absent consent after consultation, and Rule 1.9(a), which bars representing another person in the same or a substantially related matter materially adverse to a former client absent consent after consultation. It traced these prohibitions to former Canon 4 of the Code of Professional Responsibility and again cited the First Circuit's "substantial relation" test as applied in Putnam Resources, Limited Partnership v. Sammartino Inc. (citing Kevlik v. Goldstein and Analytica, Inc. v. NPD Research, Inc.), noting that it is irrelevant whether the lawyer practices with a firm where different people scrupulously avoided discussing client confidences. It also noted Pfarr v. Island Services Co., where a federal magistrate found the new Rules would have produced the same result as prior law, and quoted the Comment to Rule 1.10 that "preserving confidentiality is a question of access to information."

On this basis, the panel held that unless Mr. Doe expressly consented after consultation to the inquiring attorney's representation of Mrs. Doe, it would violate Rules 1.8(b) and 1.9 for the attorney to represent her.

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 1.8(b) and 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: I had a brief, paid consultation with another lawyer's client, without discussing case specifics. Does that create a conflict if the other spouse later wants to hire me?

A: Yes, according to this opinion. The panel held the paid consultation created a temporary attorney-client relationship sufficient to trigger Rule 1.8(b) and Rule 1.9, even though the attorney had no information about whether anything relevant to the new matter was actually discussed.

Q: Does it matter that I don't actually remember learning anything useful during the consultation?

A: Not under this opinion's reasoning. The panel noted it had "no information as to whether or not the inquiring attorney learned anything relevant," but held that "the fact remains ... that the attorney could have been privy to extremely pertinent data."

Background and rules framework

The opinion applies Rule 1.8(b) (barring use of client-related information to the client's disadvantage without consent) and Rule 1.9(a) (barring representation adverse to a former client in a substantially related matter without consent) of the Rhode Island Rules of Professional Conduct, as adopted effective November 15, 1988, together with the First Circuit's "substantial relation" disqualification test, to a temporary attorney-client relationship formed through a paid interjurisdictional consultation.

Citations and references

Rules of Professional Conduct:

• MR 1.8 (conflict of interest: current clients, specific rules)
• MR 1.9 (duties to former clients)
• RI RPC 1.8(b) (bar on using client-related information to the client's disadvantage without consent)
• RI RPC 1.9(a) (bar on representing a new client adverse to a former client in 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 89-06: Representing a Planning Board Member in a Boundary Dispute Against a Former Client Adversary: 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%2089-07.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 89-7, REQUEST #53
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 several months ago an out-of-state attorney met with him to discuss Rhode Island's law and procedure in domestic relations matters. The attorney advises the Panel that the out-of-state attorney told him that he represented an individual by the name of Mr. Doe, but that there was no discussion of the particulars of Mr. Doe's case. The attorney states that he billed the out-of-state attorney directly for the services he rendered in this consultation. The attorney states that approximately one month later Mr. Doe's wife, Mrs. Doe asked him to represent her in a domestic relations case.

The consultation with the out-of-state attorney resulted in an employment relationship between the inquiring attorney and the out-of-state attorney. Thus, the inquiring attorney had an attorney client relationship with Mr. Doe, albeit a temporary one. This attorney client relationship, moreover, centered on an individual whose interests are specifically and diametrically opposed to Mrs. Doe's present interests.

The Panel has no information as to whether or not the inquiring attorney learned anything relevant to Mrs. Doe's case. The fact remains, however, that the attorney could have been privy to extremely pertinent data.

Rule 1.8(b) provides in pertinent part:

A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client consents after consultation.

Rule 1.9 provides, in pertinent part:
1.9 CONFLICT OF INTEREST: FORMER CLIENT

(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.

These general prohibitions were 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 4. 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). Moreover, "it is irrelevant whether . . . the lawyer is a firm rather than an individual practitioner (even where) . . . different people in the firm . . . scrupulously avoided discussing [client confidences]." (citations omitted)

The United States District Court for the District of Rhode Island again had occasion to approve 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 . . ."

"Preserving confidentiality is a question of access to information," Comment, Rule 1.10. The Panel takes the position that unless Mr. Doe expressly consents after consultation to the inquiring attorney's representation of Mrs. Doe it would be a violation of Rules 1.8(b) and 1.9 for the inquiring attorney to represent Mrs. Doe.

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.