I unknowingly represented my client's litigation opponent in an unrelated workers' comp claim. May I keep representing my original client against him?

Plain-English summary

The inquiring attorney described this sequence: in 1987 the attorney was retained by A to sue B over an automobile accident; in 1990, while that case was pending, B retained the same attorney to represent him in a workers' compensation claim, which the attorney accepted and settled. The attorney was unaware throughout that B was the defendant in the earlier action. The attorney asked whether he may continue to represent A against his now-former client B.

The panel advised that if the automobile accident litigation and the workers' compensation claim are not the same or substantially related, the attorney is not precluded by Rule 1.9(a) from continuing to represent A.

The panel added that, given the likelihood that the attorney may possess information about B that could be used against B in the automobile litigation, the attorney should not continue to represent A without the fully informed consent of both A and B, referring to Rule 1.9 and the comments thereto.

Currency note

This opinion was issued in 1992, 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 amended Rule 1.9. 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 Treat this page as historical context, not current guidance.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: If the two matters are unrelated, does Rule 1.9(a) bar me from continuing against a former client?

A: Per the opinion, no; if the matters are not the same or substantially related, Rule 1.9(a) does not preclude continuing the original representation.

Q: Can I just proceed once I decide the matters are unrelated?

A: Per the opinion, the attorney should not continue without the fully informed consent of both clients, because the attorney may possess information about the former client usable against him.

Q: Does it matter that I did not realize the second client was my opponent?

A: Per the opinion, the analysis turns on whether the matters are substantially related and on the information the attorney may hold, not on the attorney's earlier unawareness.

Background and rules framework

The opinion applies Rhode Island Rule 1.9 (duties to former clients), corresponding to Model Rule 1.9. Rule 1.9(a) bars representation adverse to a former client only where the new matter is the same as or substantially related to the prior representation. The panel applied that threshold and, invoking Rule 1.9 and its comments, identified the attorney's possible possession of information usable against the former client as the reason to obtain both clients' fully informed consent before continuing.

Citations and references

Rules of Professional Conduct:

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

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 92-15: Former-Client Conflict in a Substantially Related Real Estate Matter
• RI EAP Op. 2019-02: No Conflict Representing Buyer Against a Former Corporate Client Not Related
• RI EAP Op. 2023-13: Lawyer Joining a Firm Adverse to a Former 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%2092-19.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Ethics Advisory Panel Digest
Opinion #92-19, Request #232
Issued May 20, 1992

An attorney seeks Panel advice regarding the following scenario: In 1987, the attorney was retained by A to sue B in connection with an automobile accident. In 1990, while the initial case was pending, B retained the attorney to represent him in a Workers' Compensation Claim. The attorney accepted this representation and settled the Workers' Compensation Claim. The attorney at all times was unaware that client B was the defendant in the previously instituted action. The attorney asks whether he may continue to represent client A in the action against former client B.

The Panel advises that if the automobile accident litigation and Workers' Compensation Claim are not the same or substantially related, the attorney is not precluded by Rule 1.9(a) from continuing to represent A.

In view of the likelihood that the attorney may possess information with respect to B that may be utilized against B in the automobile litigation, the Panel advises that the attorney should not continue to represent A without the fully informed consent of A and B. See Rule 1.9 and comments thereto.