I drafted a mortgage assumption agreement for a bank at my old firm. Can I now handle the bankruptcy of the person who assumed that mortgage?

Plain-English summary

While employed in another law firm, the inquiring attorney drafted a mortgage assumption agreement for a client-bank. The attorney is now employed in a different firm. A potential client, the individual for whom the mortgage assumption agreement was drafted and who assumed the mortgage pursuant to that agreement, seeks to employ the attorney for a bankruptcy filing. The attorney asked whether a conflict of interest exists.

The panel said it appears from the facts that a conflict of interest exists under Rule 1.9 ("Conflict of Interest: Former Client") and its comments. Rule 1.9 provides that 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 former client's unless the former client consents after consultation, or (b) use information relating to the representation to the disadvantage of the former client. The comments state that after termination of a client-lawyer relationship a lawyer may not represent another client except in conformity with the rule, and that a lawyer could not properly seek to rescind, on behalf of a new client, a contract drafted on behalf of the former client.

The panel explained that the propriety of a subsequent adverse representation turns on whether the former and present representation are substantially related, and concluded that the matters are substantially related and therefore a conflict of interest does exist.

In practice

Under this opinion, a lawyer who drafted a contract for a former client faces a Rule 1.9 conflict when asked to take on a new matter concerning that same contract for a party whose interests are adverse to the former client. The opinion grounds the conflict in the substantial-relationship test and in the comment's example that a lawyer could not seek to rescind, for a new client, a contract drafted for the former client.

Common questions

Q: I drafted the contract at my old firm. Does moving firms remove the conflict?

A: Per the opinion, no; Rule 1.9 governs a lawyer's duties to a former client regardless of the firm move, and the panel found a conflict on these facts.

Q: What determines whether the later representation is a conflict?

A: Per the opinion, the propriety of a subsequent adverse representation turns on whether the former and present representations are substantially related; the panel found they were.

Q: Could the former client's consent change the result?

A: Per the opinion, Rule 1.9(a) allows the representation of an adverse party in a substantially related matter only if the former client consents after consultation.

Background and rules framework

The opinion applies Rhode Island Rule 1.9 (conflict of interest: former client), corresponding to Model Rule 1.9. The panel read Rule 1.9(a)-(b) as barring adverse representation in a substantially related matter absent the former client's consent and as barring use of the former representation's information to that client's disadvantage, and applied the substantial-relationship test to find a conflict.

Citations and references

Rules of Professional Conduct:

• MR 1.9 (duties to former clients)
• RI RPC 1.9(a), 1.9(b); comments to Rule 1.9

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 92-31: Former-Client Objection Turns on the Substantial-Relationship Test
• RI EAP Op. 92-48: Suing a Former Client on an Unrelated Matter

Currency note

This opinion was issued in 1992 (Opinion 92-51), 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 Rule 1.9 (duties to former 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.

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%2092-51.pdf

Original opinion text

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

ETHICS ADVISORY PANEL
Opinion 92-51, Request #274
Issued August 12, 1992

An attorney seeks Panel advice regarding whether a conflict of interest exists in the following situation. While the attorney was employed in another law firm, the attorney drafted a mortgage assumption agreement for a client-bank. The attorney is presently employed in another firm. The potential client seeks to employ the attorney for a bankruptcy filing who assumed the mortgage pursuant to the same mortgage assumption agreement that the attorney drafted. The client is the individual for whom the mortgage assumption agreement was drafted.

It appears from the facts provided that a conflict of interest exists pursuant to Rule 1.9 "Conflict of Interest: Former Client" and the comments thereto.

Rule 1.9 specifically mandates that:

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

The comments to Rule 1.9 state that "after termination of a client-lawyer relationship, a lawyer may not represent another client except in conformity with this Rule . . . . Thus, a lawyer could not properly seek to rescind on behalf of a new client a contract drafted on behalf of the former client." According to Rule 1.9, the propriety of subsequent adverse representation turns on whether the former and present representation are substantially related. The Panel believes that the matters are substantially related and therefore a conflict of interest does exist.