I had an initial consultation with someone who didn't hire me. Can I now represent an organization against that person in the same matter?

Plain-English summary

The inquiring attorney conducted an initial consultation with a party who did not retain the attorney in the matter. The attorney was later contacted by an organization seeking representation in the same matter against the party with whom the attorney had consulted and whose material relating to the matter the attorney had reviewed.

The panel took the position that a conflict of interest exists under Rule 1.9 of the Rules of Professional Conduct. It reasoned that an initial, substantive consultation is sufficient to constitute representation for this purpose, that the interests of the two parties are materially adverse, and that the first party had taken the position that the attorney's review of the material precludes the attorney from representing another interested party.

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 and added a separate rule (Rule 1.18) addressing duties to prospective clients. 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 Treat this page as historical context, not current guidance.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: Does a consultation count even though the person never hired me?

A: Per the opinion, yes. The panel treated a substantive initial consultation as sufficient to constitute representation for conflict purposes under Rule 1.9.

Q: Why did the conflict arise?

A: Per the opinion, the interests of the consulting party and the organization were materially adverse in the same matter, and the attorney had reviewed material relating to the matter.

Q: What was the consulting party's position?

A: Per the opinion, the first party took the position that the attorney's review of the material precludes the attorney from representing another interested party.

Background and rules framework

The opinion applies Rhode Island Rule 1.9, corresponding to Model Rule 1.9 (duties to former clients). Rule 1.9 bars a lawyer who has formerly represented a client from representing another person in the same or a substantially related matter in which that person's interests are materially adverse, absent informed consent. The panel treated the initial substantive consultation as the equivalent of a representation for this purpose. (In later versions of the rules, duties to a person who consults but does not retain the lawyer are addressed separately under Model Rule 1.18.)

Citations and references

Rules of Professional Conduct:

• MR 1.9 (duties to former clients)
• RI RPC 1.9

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 91-48: A Former-Firm Client Conflict Needs Consent
• RI EAP Op. 91-36: Attorney Deposition, Privilege, and Conflict Representing a Former Joint Client
• RI EAP Op. 91-33: No Conflict When a Former Client May Testify Against a Current 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%2091-72.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 #91-72
Issued November 5, 1991

An attorney seeks Panel advice concerning a potential conflict of interest. The attorney conducted an initial consultation with a party who did not retain the attorney in the matter. Subsequently the attorney was contacted by an organization seeking the attorney's representation in the same matter against the party with whom the attorney had consulted and reviewed material relating to the matter.

The Panel is of the opinion that a conflict of interest exists under Rule 1.9 of the Rules of Professional Conduct since an initial, substantive consultation is sufficient to constitute representation for this purpose, the interests of the two parties are materially adverse, and the first party has taken the position that the attorney's review of the material precludes the attorney from representing another interested party.