Years ago I drafted a will for Y and a trust for Y's spouse. Now the trust company (my client) is being sued by Y and a remainderman over the trust's investments. Can I defend the trust company against Y?

Plain-English summary

Several years earlier, the inquiring attorney had prepared a will for Y and, at the same time, a trust for X, Y's spouse, in which Y was the life tenant. Upon X's death, the trust company administering the trust retained the attorney to represent it in the probate of X's estate. Y was represented by another attorney, not the inquiring attorney. Y and Z, a remainderperson under the trust, then brought an action against the trust company alleging it had failed to properly invest the trust funds, causing lost appreciation and potentially lower present income for Y. The attorney asked whether he could represent the trust company in that action, stating that he had never discussed trust investment matters with X, Y, or Z.

The Panel applied Rule 1.9 (conflict of interest: former client). It concluded that the former matter of preparing Y's will was not the same or substantially related to the suit Y and Z brought against the trust company, so the attorney may represent the trust company in the action.

The Panel added the Rule 1.9(b) limit: the attorney may not use information relating to the former representation to Y's disadvantage, except as Rules 1.6 or 3.3 would allow or require, or when the information has become generally known.

Currency note

This opinion was issued in 1994 (Opinion 94-10, 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 Treat this page as historical context, not current guidance.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: Can a lawyer who drafted a client's will later oppose that client for a different client?

A: On these facts, yes. The Panel concluded the will drafting was not the same or substantially related to the trust-investment suit, so the attorney may represent the trust company against Y.

Q: What is the key test under Rule 1.9?

A: Whether the new matter is the same as or substantially related to the former matter; the Panel found the will and the investment suit were not.

Q: What limit still applies to the former will client's information?

A: Under Rule 1.9(b), the attorney may not use information from the former representation to Y's disadvantage unless it has become generally known.

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. Rule 1.9(a) barred a substantially related, materially adverse representation absent consent; Rule 1.9(b) barred using former-representation information to the former client's disadvantage except as Rules 1.6 or 3.3 allow or when generally known. The analysis turned on the absence of a substantial relationship between drafting the will and the trust-investment claim.

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 former-representation information)
• MR 1.6 (confidentiality of information)

See also

• RI EAP Opinion 93-95: a former real estate co-client and an unrelated matter under Rule 1.9
• RI EAP Opinion 94-07: confidentiality when a former client sues the lawyer 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%2094-10.pdf

Original opinion text

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

0646
FINAL

ETHICS ADVISORY PANEL
OPINION #94-10 REQUEST #463
Issued February 23, 1994

Several years ago the inquiring attorney prepared a will for Y. Contemporaneously, the inquiring attorney prepared a trust for X, Y's spouse, in which Y is the life tenant. Upon X's death, the trust company administering the trust retained the inquiring attorney to represent it in connection with the probate of X's estate. After X's death Y was represented by another attorney and was not represented by the inquiring attorney. Y and Z, a remainderperson under the trust, have brought an action against the trust company alleging that it failed to properly invest the trust funds resulting in lost appreciation in market value and also potentially lower present income for Y. The inquiring attorney seeks Panel advice as to whether he/she may represent the trust company in the action brought by Y and Z. The inquiring attorney contends he/she at no time discussed with X, Y or Z investment matters relating to the trust.

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

The former matter of preparing Y's will that the inquiring attorney handled for Y is not the same or substantially related to the matter brought by Y and Z against the trust company. The inquiring attorney may therefore represent the trust company in the action. However, pursuant to Rule 1.9(b), the inquiring attorney may not use information relating to the representation to the disadvantage of Y, except as Rule 1.6 or Rule 3.3 would allow or require, or when the information has become generally known.