I represented one spouse in a divorce five years ago. Can I now represent the other spouse in a child-support case against my former client?

Plain-English summary

The inquiring attorney represented X in a divorce proceeding five years ago but was discharged before a final decree was entered. Y, X's spouse, now seeks to have the attorney represent Y in a child support matter against X. The attorney asked whether he or she may represent Y.

The opinion applies Rule 1.9(a), which provides that a lawyer who formerly represented a client in a matter shall not thereafter 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 interests, unless the former client consents after consultation.

The opinion finds that the matters are the same or substantially related and that Y's interests are materially adverse to those of X. It concludes that under Rule 1.9 the representation of Y would present a conflict of interest absent X's consent after consultation, and that the attorney may not use derivative information under Rule 1.6.

In practice

Under this opinion, the prior divorce representation of X and the proposed child support representation of Y are treated as the same or substantially related, with materially adverse interests, so Rule 1.9(a) applies. The opinion frames the former client's consent after consultation as the condition for proceeding, and separately bars the attorney's use of derivative information under Rule 1.6.

Common questions

Q: Can the lawyer take the child-support case against a former divorce client?

A: Not without consent. The opinion concludes Rule 1.9 presents a conflict of interest absent the former client's consent after consultation, because the matters are the same or substantially related and the interests are materially adverse.

Q: Does it matter that the divorce ended five years ago?

A: The opinion still applies Rule 1.9, treating the prior divorce and the child-support matter as the same or substantially related despite the passage of time.

Q: Can the lawyer at least use what was learned in the divorce?

A: No. The opinion states the attorney may not use derivative information under Rule 1.6.

Background and rules framework

The opinion interprets Rhode Island Rules of Professional Conduct 1.9 (conflict of interest: former client) and 1.6 (confidentiality of information), analogs of the corresponding Model Rules. Rule 1.9(a) bars representation adverse to a former client in the same or a substantially related matter absent consent after consultation; the opinion also invokes Rule 1.6 to bar use of derivative information.

Citations and references

Rules of Professional Conduct:

• MR 1.9 / RI RPC 1.9(a) (conflict of interest: former client; same or substantially related matter)
• MR 1.6 / RI RPC 1.6 (confidentiality; no use of derivative information)

See also

• RI EAP Opinion 93-72: former DUI defendant and representing the tavern in the civil suit under 1.9
• RI EAP Opinion 93-49: impeaching a former-client victim with public-record information under 1.9

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%2093-68.pdf

Original opinion text

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

(FINAL)
ETHICS ADVISORY PANEL
OPINION #93-68, REQUEST #407
Issued September 14, 1993

The inquiring attorney represented X in a divorce proceeding five (5) years ago, but was discharged before a final decree was entered. Y, X's spouse, now seeks to have the inquiring attorney represent him/her in a child support matter against X. The inquiring attorney asks whether he/she may represent Y.

Rule 1.9 entitled "Conflict of Interest: Former Client" provides in part as follows:

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 the person's interests are materially adverse to the interests of the former client unless the former client consents after consultation; . . .

It appears from the facts presented that the matters are the same or substantially related, and that Y's interests are materially adverse to those of X. Pursuant to Rule 1.9, the representation of Y in this matter would present a conflict of interest absent consent by X after consultation. Further, the inquiring attorney may not use derivative information under Rule 1.6.