Years ago my firm briefly represented a corporation trying to buy assets from an estate, while the estate's heirs were separately bidding on other assets with their own counsel. The deals never collided. Can I now represent those heirs against the estate's executor, even though a firm lawyer may be a witness?

Plain-English summary

An attorney's office had been engaged by the heirs of "A" to represent them as beneficiaries of A's estate, seeking an accounting (none had been filed in more than three years) and the removal of the executor for breach of fiduciary duty. About three years earlier, shortly after the estate opened, the attorney's firm had briefly represented a business, "the T Corp," that wanted to purchase certain assets of the "X Company," which was itself an asset of the estate. During that representation, firm members negotiated with the estate's executor. At roughly the same time, the heirs of A were preparing, with other counsel, an offer to purchase different assets of the X Company. The attorney's records showed the T Corp's and the heirs' offers were scheduled to be submitted at about the same time, but he had no direct knowledge of the nature and intent of the heirs' offer. The estate rejected the T Corp's proposal, and the firm's representation of the T Corp ended about six weeks after it began. The firm lawyer who had handled the T Corp negotiations would probably be called as a witness in the current matter.

The panel quoted Rule 1.9 (conflict of interest: former client), which bars 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, absent consent. The panel explained that for Rule 1.9 to bar a subsequent representation, the second client's interests must be presently adverse to the first client's interests. It reasoned that the mere fact that the T Corp and the heirs could have taken opposing positions over a single asset of the X Company, and thus become adverse, was not relevant if opposing postures were never actually taken. Because any potential adverseness between the heirs and the T Corp never developed, the panel took the position that Rule 1.9 did not apply. The panel also noted that its single-party proceeding is not designed to resolve factual disputes and that it accepts the inquiring attorney's representations as accurate.

Turning to the witness question, the panel quoted Rule 3.7(b), under which a lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded by Rule 1.7 or Rule 1.9. Rule 1.7 addresses representation directly adverse to another present client, which was not the situation, and Rule 1.9 did not apply for the reasons given. The panel therefore concluded that the fact that another member of the firm may be called as a witness did not affect the propriety of the attorney's representation of the heirs of A.

Currency note

This opinion was issued in August 1990, 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, which amended the conflict-of-interest rules addressed here. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Does a former representation create a Rule 1.9 conflict if the two clients could have become adverse but never did?

A: Under this opinion, no. The panel held that for Rule 1.9 to bar a later representation the interests must be presently adverse, and potential adverseness that never developed into opposing positions does not trigger the rule.

Q: Can a lawyer try a case when a partner in the same firm will testify?

A: Per the opinion, yes, so long as neither Rule 1.7 nor Rule 1.9 precludes it. The panel applied Rule 3.7(b), which allows a lawyer to act as advocate at a trial where another firm lawyer is likely to be a witness unless a conflict rule bars the representation.

Q: Does the panel resolve disputed facts about whether the two matters were really related?

A: No. The panel stated that its single-party proceeding is not designed to resolve factual disputes and that it accepts the inquiring attorney's representations as accurate in order to provide guidance.

Background and rules framework

The opinion applies Rules 1.7, 1.9, and 3.7 of the Rhode Island Rules of Professional Conduct, adopted effective November 15, 1988. Rule 1.9 governs duties to former clients and turns, in the panel's reading, on whether the current client's interests are presently and materially adverse to the former client's. Rule 1.7 governs conflicts with a current client whose interests are directly adverse. Rule 3.7(b) permits a lawyer to serve as advocate at a trial where another lawyer in the firm is likely to testify, unless Rule 1.7 or Rule 1.9 precludes it.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest: current clients)
• MR 1.9 (duties to former clients)
• MR 3.7 (lawyer as witness)
• RI RPC 1.7, 1.9, 3.7(b), as adopted November 15, 1988

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• RI EAP Digest of Opinion 87-3 (panel accepts the inquiring attorney's factual representations)

See also

• RI EAP Op. 2001-06: Former Clients Testifying Against a Current Client
• RI EAP Op. 2002-05: Firm Partner Testifying at Trial
• RI EAP Op. 2005-02: Prior Consultation and Later Adverse Representation

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%2090-32.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 90-32, Request #110
Issued August 2, 1990

An attorney seeks Panel advice as to whether he may properly represent a client under the circumstances he describes.

The attorney advises the Panel that his office has been engaged by the heirs of A to represent them with regard to their positions as beneficiaries of the estate of A. The attorney states that the heirs want an accounting of the estate of A and that no accounting has been filed in the three years or more that the estate has been open. The attorney indicates that the heirs also seek removal of the present executor for breach of fiduciary duty in handling the estate and other improprieties.

The attorney advises the Panel that approximately three years ago, shortly after the estate of A was opened he represented a business, "the T Corp," which expressed an interest in purchasing certain assets of the X Company. The attorney states that the X Company was one of the assets of the estate of A. In connection with the representation of the T Corp, members of the attorney's firm entered into negotiations with the executor of the estate of A. The attorney indicates that during the period in which his firm was representing the T Corp in its attempt to purchase certain assets of the X Company the heirs of A were preparing an offer to purchase other assets of the X Company with the assistance of other counsel. The attorney states that his records show that offers from the T Corp and from the heirs of A were scheduled to be submitted at approximately the same time, but that he had "no direct knowledge of the nature and intent" of the heirs' offer. The estate did not accept the T Corp's proposal and the attorney states that his representation of the T Corp ceased forever at that point, approximately six weeks after it began. The attorney indicates that the attorney from his firm who represented the T Corp in its negotiations with the estate of A will probably be called as a witness. The attorney asks whether a conflict of interest arises with regard to his present representation of the heirs of A under the circumstances he has described.

Rule 1.9, titled "Conflict of Interest: Former Client" provides:

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; or

(b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client or when the information has become generally known.

In order for Rule 1.9 to apply to bar an attorney accepting subsequent representation, the attorney's second client's interests must be presently adverse to the attorney's first client's interests.

The fact that the T Corp and the heirs of A could have taken opposing positions with regard to a single asset of the X Company and thus become adverse parties is not relevant if opposing postures are never taken. The Panel takes the position that Rule 1.9 does not apply to the situation described because any potential adverseness between the heirs and the T Corp did not develop.

It is important to note that the Panel's single party proceeding is not designed to resolve factual disputes. In order to provide useful guidance to the bar the Panel accepts an inquiring attorney's representations as accurate and bases its opinion solely thereon. The Panel assumes the factual accuracy of material an attorney submits for review. See, e.g. digest of Opinion 87-3.

Rule 3.7, titled "Lawyers as Witness" provides in pertinent part:

(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.

Rule 1.7 addresses the situation in which an attorney is asked to represent a client whose interests are directly adverse to another present client of the attorney's. That is not the situation before us. Rule 1.9, as noted earlier does not apply to the circumstances outlined. Thus, the fact that another member of the attorney's firm may be called as a witness does not affect the propriety of his representation of the heirs of A.

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.