A former personal-injury client is now suing me over a car accident we were both in, claiming injuries like the ones from the old case. What can I do with the confidential information from my earlier representation?

Plain-English summary

The inquiring attorney had represented a client several years earlier in a personal-injury matter. Later, the attorney and the client were involved in an automobile collision, and the client filed a lawsuit against the attorney alleging injuries. The injuries claimed in the new lawsuit were similar to the client's injuries in the former lawsuit. The attorney asked what confidentiality restraints applied to information obtained during the former representation.

The Panel applied Rule 1.9 (conflict of interest: former client). It noted that while the rule addresses restrictions on a lawyer's representation of another person adverse to a former client, it also prohibits a lawyer's use of information relating to the former representation to the former client's disadvantage.

The Panel concluded that the attorney may not reveal information obtained in the former representation to the client's disadvantage unless that information has become generally known or is a matter of public record.

Currency note

This opinion was issued in 1994 (Opinion 94-7, issued February 23, 1994), 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 Rules 1.9 and 1.6. 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 Treat this page as historical context, not current guidance.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: When a former client sues the lawyer, can the lawyer use confidential information from the old case?

A: The Panel concluded no, under Rule 1.9(b) the attorney may not use information from the former representation to the former client's disadvantage, unless it has become generally known or is a matter of public record.

Q: Does Rule 1.9 only restrict taking on adverse representations?

A: No. The Panel noted that Rule 1.9 also prohibits a lawyer's use of former-representation information to the disadvantage of the former client.

Q: Is there any exception?

A: Yes. The restriction does not apply where the information has become generally known or is a matter of public record.

Background and rules framework

The opinion interprets Rhode Island Rule of Professional Conduct 1.9 (duties to former clients), the analog of Model Rule 1.9, together with the confidentiality principles of Rule 1.6. Rule 1.9(b) barred using information relating to a former representation to the former client's disadvantage, except as Rules 1.6 or 3.3 permit or when the information has become generally known. The Panel read the exception to cover information that is generally known or a matter of public record.

Citations and references

Rules of Professional Conduct:

• MR 1.9 / RI RPC 1.9(b) (duties to former clients; no use of former-representation information to the client's disadvantage)
• MR 1.6 (confidentiality of information)

See also

• RI EAP Opinion 93-97: no Rule 1.9 conflict representing a defendant against a former client's daughter
• RI EAP Opinion 89-12: no duty to disclose a former client's inconsistent court testimony

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%2094-07.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 #94-7 REQUEST #459
Issued February 23, 1994

The inquiring attorney represented a client several years ago in a personal injury matter. Subsequently, the client and the inquiring attorney were involved in an automobile collision. The client has filed a lawsuit against the inquiring attorney alleging that he/she sustained injuries. The client's injuries in the present lawsuit are similar to the client's injuries in the former lawsuit. The inquiring attorney asks what confidentiality restraints exist with respect to information obtained by the inquiring attorney in the former representation of the client.

The issue raised by this inquiry is addressed by Rule 1.9 entitled "Conflict of Interest: Former Client." That Rule provides as follows:

Rule 1.9. Conflict of Interest: Former Client. -- 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.

While the Rule addresses restrictions upon a lawyer's representation of another person whose interests are adverse to a former client, it also prohibits a lawyer's use of information relating to the representation to the disadvantage of the former client.

The Panel concludes that the inquiring attorney may not reveal information that was obtained in the former representation to the disadvantage of the client unless such information has become generally known and/or is a matter of public record.