A former client made statements to me that had nothing to do with my representation of them, and now they're in a dispute with my relative. Can I testify about what the former client said?

Plain-English summary

The inquiring attorney asked whether the attorney may properly testify concerning statements made to the attorney by a former client. The attorney explained that the statements related to a dispute between the former client and a relative of the attorney, that the conversation with the former client did not arise from the attorney-client relationship and did not relate in any way to any matter the attorney was handling at the time for the former client, and that the attorney was not acting as the relative's attorney in the proceeding.

The panel found the circumstances governed by Rhode Island Rule of Professional Conduct 1.9 ("Conflict of Interest: Former Client"), which bars a lawyer who formerly represented a client from representing another person in the same or a substantially related matter materially adverse to the former client absent consent, and from using information relating to the representation to the former client's disadvantage except as Rule 1.6 or Rule 3.3 would permit or when the information has become generally known.

The panel took the position that the attorney may properly testify concerning the statements made by the former client, so long as those statements did not arise from the attorney-client relationship.

Currency note

This opinion was issued in 1991, 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, which renumbered and amended several provisions. 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 Treat this page as historical context, not current guidance.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 a lawyer testify about what a former client told them?

A: Under this opinion, the lawyer may testify about the former client's statements as long as those statements did not arise from the attorney-client relationship.

Q: What is the dividing line the panel drew?

A: The panel keyed the answer to whether the statements arose from the attorney-client relationship; statements that did not arise from it may be the subject of the lawyer's testimony.

Q: Which rule governs testifying about a former client?

A: The panel found the circumstances governed by Rule 1.9 (Conflict of Interest: Former Client), including its bar on using information from the representation to the former client's disadvantage.

Background and rules framework

The opinion applies Rule 1.9 (Conflict of Interest: Former Client), corresponding to Model Rule 1.9. The panel quoted the rule's prohibition on adverse representation in a substantially related matter and on using information relating to the former representation to the former client's disadvantage, subject to the exceptions tied to Rule 1.6 and Rule 3.3. The analysis turned on the source of the statements: because they did not arise from the attorney-client relationship, the panel concluded testifying was permissible.

Citations and references

Rules of Professional Conduct:

• MR 1.9 (duties to former clients)
• RI RPC 1.9
• Rule 1.6 and Rule 3.3 are referenced within the quoted text of Rule 1.9.

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 95-34: Former Client as Opposing Witness
• RI EAP Op. 95-26: Confidentiality Despite Unpaid Fee
• RI EAP Op. 95-42: Adverse to a Former Will Client

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%2091-10.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 #91-10, Request #148
Issued May 23, 1991

An attorney seeks Panel advice as to whether the attorney may properly testify concerning statements made to the attorney by a former client. The attorney informs the Panel that these statements relate to a dispute between the former client and a relative of the attorney. The attorney states that the conversation with the former client did not arise from the attorney-client relationship and did not relate in any way whatsoever to any matter the attorney may have been handling at the time for the former client. The attorney indicates that he/she is not acting as the attorney for the relative in this proceeding.

The Panel is of the opinion that the circumstances described are governed by Rhode Island Rule of Professional Conduct 1.9, entitled "Conflict of Interest: Former Client," which 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.

The Panel takes the position that the attorney may properly testify concerning the statements made to the attorney by the former client as long as these statements do not arise from the attorney-client relationship.

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.