I represented three clients together in a real estate matter that closed in 1992. Can I now represent one of them in an unrelated matter that involves another one of them?

Plain-English summary

The inquiring attorney had represented three clients in a real estate matter that concluded in June 1992. The attorney now sought to represent one of those clients in an unrelated matter that involved another one of the three former clients, and asked whether the proposed representation was permissible.

The Panel applied Rule 1.9 (conflict of interest: former client), which barred a lawyer who formerly represented a client from representing another person in the same or a substantially related matter in which that person's interests are materially adverse to the former client, absent the former client's consent, and from using information relating to the prior representation to the former client's disadvantage.

On the facts described, the Panel found that the earlier real estate matter and the proposed matter were not the same or substantially related. It therefore concluded that the attorney could undertake the proposed representation.

Currency note

This opinion was issued in 1993 (Opinion 93-95, issued December 8, 1993), 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 (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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Can a lawyer represent one former co-client against another after the joint matter ends?

A: On these facts, yes. The Panel concluded that because the prior real estate matter and the new matter were not the same or substantially related, Rule 1.9 did not bar the proposed representation.

Q: What is the key test under Rule 1.9?

A: Whether the new matter is the same as or substantially related to the matter in which the lawyer formerly represented the client; the Panel found it was not.

Q: Did the former clients need to consent?

A: The Panel did not require consent here because the substantial-relationship threshold was not met; Rule 1.9(a)'s consent requirement applies when the matters are the same or substantially related and interests are materially adverse.

Background and rules framework

The opinion interprets Rhode Island Rule of Professional Conduct 1.9 (conflict of interest: former client), the analog of Model Rule 1.9. Rule 1.9(a) barred representing a new client in the same or a substantially related matter materially adverse to a former client absent consent after consultation; Rule 1.9(b) barred using information relating to the former representation to the former client's disadvantage except as Rules 1.6 or 3.3 allow or when the information has become generally known. The Panel's analysis turned on the absence of a substantial relationship between the two matters.

Citations and references

Rules of Professional Conduct:

• MR 1.9 / RI RPC 1.9(a), (b) (duties to former clients; substantial-relationship test; use of prior-representation information)

See also

• RI EAP Opinion 93-87: may sue a former institutional client on an unrelated matter under Rule 1.9
• RI EAP Opinion 93-77: may oppose a party whose witness is a former client under Rule 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%2093-95.pdf

Original opinion text

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

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FINAL

ETHICS ADVISORY PANEL
OPINION #93-95 REQUEST #439
Issued December 8, 1993

The inquiring attorney represented three (3) clients in a real estate matter that concluded in June of 1992. The inquiring attorney now seeks to represent one of the clients in an unrelated matter that involves another one of the clients. The inquiring attorney asks whether the proposed representation is permissible.

Rule 1.9 entitled "Conflict of Interest: Former Client" provides 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 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 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.

Under the facts as described by the inquiring attorney, the matters are not the same or substantially related. The Panel therefore concludes that the inquiring attorney may undertake the proposed representation.