I helped on a client's case while working for another lawyer; now that client wants me to sue that lawyer for malpractice. May I take it?

Plain-English summary

The inquiring attorney (Attorney A) previously worked for Attorney B and, while so employed, assisted B in some initial discovery in a case for Ms. X. After A left B's employ, B tried Ms. X's case unsuccessfully. Ms. X now wants A to represent her in a malpractice action against B, alleging that B failed to file a timely notice of appeal and that she would have succeeded at trial but for B's malpractice. A asks whether A may handle Ms. X's malpractice claim against B.

The panel concluded that A's representation of Ms. X against B is not per se prohibited by the rules. Because in both situations A would be representing the same client (Ms. X), there is no conflict or disqualification governed by Rules 1.9 or 1.10.

The panel cautioned, however, that before undertaking the representation A must seriously consider several potential ethical issues. Because A was involved in the early stages of the case and would be familiar with B's office, A may be called to testify at the malpractice trial (Rule 3.7, lawyer as witness). Moreover, Rule 1.7(b) generally prohibits representation that may be "materially limited . . . by the lawyer's own interests"; A must consider whether A can objectively evaluate B's office's handling of the matter, which may require A to evaluate the propriety of A's own conduct in the initial stages. Even if A concludes A's own interest will not affect the representation, Rule 1.7(b)(2) requires A to alert the client to potential conflicts and to obtain consent after consultation.

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 Rules 1.7, 1.9, 1.10, and 3.7 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 restructured the conflict rules (Rule 1.7 in particular). 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 Treat this page as historical context, not current guidance.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: Is it a former-client conflict for me to sue the lawyer I used to work for on my client's behalf?

A: Per the opinion, no; because the attorney would be representing the same client in both situations, there is no conflict or disqualification under Rules 1.9 or 1.10.

Q: Could I end up being a witness in the malpractice case?

A: Per the opinion, yes; because the attorney was involved in the early stages and familiar with the former employer's office, the attorney may be called to testify, implicating Rule 3.7.

Q: What must I do about my own interest in how the early work was handled?

A: Per the opinion, the attorney must consider whether Rule 1.7(b) is implicated by having to evaluate the attorney's own conduct, and even if the attorney concludes it will not affect the representation, Rule 1.7(b)(2) requires alerting the client and obtaining consent after consultation.

Background and rules framework

The opinion applies Rhode Island Rules 1.7 (conflict of interest: general rule), 1.9 (former clients), 1.10 (imputed disqualification), and 3.7 (lawyer as witness), corresponding to the same-numbered Model Rules. The panel found no 1.9/1.10 issue because the representation was of the same client, then flagged Rule 3.7's lawyer-as-witness concern and Rule 1.7(b)'s personal-interest limitation, with Rule 1.7(b)(2) requiring client disclosure and consent.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest: general rule)
• MR 1.9 (duties to former clients)
• MR 1.10 (imputation of conflicts)
• MR 3.7 (lawyer as witness)
• RI RPC 1.7(b) and 1.7(b)(2), 1.9, 1.10, 3.7

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 2002-05: Lawyer as Witness, Partner Testifying at Trial
• RI EAP Op. 2025-10: May Not Be Both Advocate and Expert Witness in the Same Matter
• RI EAP Op. 91-36: Attorney Deposition, Privilege, and Conflict Representing a Former Joint 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%2092-30.pdf

Original opinion text

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

ETHICS ADVISORY PANEL
Opinion #92-30, Request #244
Issued May 20, 1992

An attorney seeks Panel advice regarding a factual situation which the attorney describes.

Attorney A previously worked for Attorney B. While in Attorney B's employ, Attorney A assisted Attorney B in some initial discovery exercises in a case for Ms. X. After Attorney A left B's employ, the case for Ms. X was unsuccessfully tried by Attorney B. Ms. X now wants Attorney A to represent her in a malpractice action against Attorney B. Ms. X alleges that Attorney B failed to file a timely notice of appeal and that she would have succeeded at trial, but for B's malpractice. Attorney A inquires whether he/she may handle Ms. X's malpractice claim against Attorney B.

The Panel is of the opinion that Attorney A's representation of Ms. X against Attorney B is not per se prohibited by the Rules of Professional Conduct. Because in both situations Attorney A would be representing the same client, Ms. X, there is no conflict or disqualification governed by Rules 1.9 or 1.10.

The Panel notes, however, that before undertaking to represent Ms. X, Attorney A must give serious consideration to several potential ethical issues that may arise during the course of the representation. For example, because Attorney A was involved with the early stages of Ms. X's case and would have general familiarity with the operation of Attorney B's office, Attorney A may be called upon to testify in the trial of the malpractice claim. See Rule 3.7 ("Lawyer as Witness"). Moreover, Rule 1.7(b) generally prohibits an attorney from undertaking representation of a client when the representation may be "materially limited . . . by the lawyer's own interests . . ." In analyzing Ms. X's malpractice claim, Attorney A must consider whether he/she can objectively evaluate the handling of the matter by Attorney B's office. This analysis may well require Attorney A to evaluate the propriety of his/her own conduct during the initial stages of the original litigation. Even if Attorney A concludes that his/her own interest will not affect representation of Ms. X, Rule 1.7(b)(2) requires Attorney A to alert the client to potential conflicts and to obtain consent after consultation.