The victim in my client's criminal case was once represented by another lawyer in my firm. Can I impeach the victim using public-record information without violating former-client duties?

Plain-English summary

The attorney represents Client A in a criminal matter. The victim in that matter had been previously represented by another attorney in the same firm in an unrelated criminal matter. In Client A's defense, it will be necessary to impeach the victim using his or her past criminal record and other public records. The attorney states that any information in the law office's file that is not a matter of public record will not be used.

The opinion applies Rule 1.9, "Conflict of Interest: Former Client," which bars a lawyer who formerly represented a client from using information relating to the representation to the disadvantage of the former client except as Rules 1.6 or 3.3 permit or require, or when the information has become generally known. By reason of imputation under Rule 1.10, "Imputed Disqualification: General Rule," the victim is a former client of the inquiring attorney.

The opinion concludes that the attorney may use information that has become generally known or is a matter of public record to impeach the victim. Quoting the comment, it notes that although information acquired during a representation may not be used, "the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client."

In practice

Under this opinion, the imputed former-client relationship does not bar the impeachment, because the line Rule 1.9(b) draws is between protected representation information and generally known or public-record information. The attorney's stated limitation -- using only public-record information and not non-public file material -- keeps the impeachment on the permitted side of that line.

Common questions

Q: Can a lawyer impeach a witness who is a former client of the firm?

A: Yes, within limits. The opinion concludes the attorney may impeach the victim using information that is generally known or a matter of public record.

Q: Is the victim treated as the inquiring attorney's former client?

A: Yes, by imputation. The opinion states that under Rule 1.10 the victim is a former client by reason of imputation.

Q: What information is off-limits?

A: The opinion indicates that information acquired during the representation and not generally known may not be used; the attorney stated non-public file information would not be used.

Background and rules framework

The opinion interprets Rhode Island Rules of Professional Conduct 1.9 (conflict of interest: former client) and 1.10 (imputed disqualification), analogs of the corresponding Model Rules, with Rules 1.6 and 3.3 referenced through Rule 1.9(b). Rule 1.9(b) bars adverse use of information relating to the representation except as Rules 1.6 or 3.3 permit or when it has become generally known; Rule 1.10 imputes the former-client relationship across the firm.

Citations and references

Rules of Professional Conduct:

• MR 1.9 / RI RPC 1.9(b) (former client; use of representation information)
• MR 1.10 / RI RPC 1.10 (imputed disqualification: general rule)
• MR 1.6 / RI RPC 1.6 (confidentiality; referenced via Rule 1.9(b))
• MR 3.3 / RI RPC 3.3 (candor toward the tribunal; referenced via Rule 1.9(b))

See also

• RI EAP Opinion 93-36: suing a former client on an unrelated debt matter is permitted under 1.9
• RI EAP Opinion 93-47: after firm dissolution a lawyer may take an adverse lease matter under 1.10(c)

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%2093-49.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

(FINAL)
ETHICS ADVISORY PANEL
OPINION #93-49, REQUEST #384
Issued July 28, 1993

An attorney represents Client A in a criminal matter. The victim in this matter had been previously represented by another attorney in the same firm in an unrelated criminal matter. In Client A's defense, it will be necessary to impeach the victim using his/her past criminal record and other public records. The attorney states that any information contained in the law office's file that is not a matter of public record will not be used.

Rule 1.9 entitled "Conflict of Interest: Former Client" states that: "A lawyer who has formerly represented a client in a matter shall not thereafter. . . (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." Pursuant to Rule 1.10 entitled "Imputed Disqualification: General Rule," Client A is a former client by reason of imputation.

The Panel believes the attorney may use information that has become generally known or is a matter of public record to impeach the victim. The Comment to the Rule states that although information acquired by the lawyer during representation may not be used, "the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client."