My subcontractor client dealt directly with the homeowner, who twice met with me about the construction problems, once alone. Now I'm collecting for my client against the homeowner. Do those contacts create a conflict?

Plain-English summary

The inquiring attorney represented Client A, a subcontractor who, at the request of a general contractor B, built two chimneys for C's home. As problems arose, Client A dealt directly with C because B was unavailable. On one occasion, Client A brought C to the attorney's law office to discuss the construction problems, and on another occasion C met with the attorney without Client A. After C moved into the home, the attorney pursued a collection matter for Client A against C for an outstanding bill, and Client A was cross-claimed into a Superior Court action C had brought against B. The attorney asked whether a conflict existed in his representation of Client A given the previous interactions with C.

The Panel opined that Rule 1.9(a) (conflict of interest: former client) governed. It concluded that the attorney may represent Client A if Rule 1.9(a) is followed. Because the matters of representation are the same or substantially related, and Client A's interests are or may be materially adverse to C, the attorney must obtain consent from C.

The Panel added that the attorney is also obligated to comply with the confidentiality principles of Rule 1.6 and may not use information obtained in the former representation to the disadvantage of the former client C, citing Rule 1.9(b).

Currency note

This opinion was issued in 1994 (Opinion 94-16, issued March 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 Treat this page as historical context, not current guidance.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 direct dealings with an adverse party make that party a former client?

A: The Panel treated C as a former client here, applying Rule 1.9(a) to the attorney's private meetings with C, so the attorney needed C's consent to continue against C.

Q: What did Rule 1.9(a) require the attorney to do?

A: Because the matters were the same or substantially related and Client A's interests were or might be materially adverse to C, the attorney had to obtain C's consent after consultation to represent Client A.

Q: What confidentiality duty did the attorney owe C?

A: Under Rule 1.9(b), the attorney could not use information obtained in the former dealings to C's disadvantage, and had to comply with Rule 1.6.

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 representing a client in the same or a substantially related matter materially adverse to a former client absent the former client's consent; Rule 1.9(b) barred using former-representation information to the former client's disadvantage. The Panel treated C's private meetings with the attorney as creating a former-client relationship, so the consent and confidentiality duties of Rule 1.9 attached.

Citations and references

Rules of Professional Conduct:

• MR 1.9 / RI RPC 1.9(a), (b) (duties to former clients; consent for substantially related adverse matters; no use of information to the client's disadvantage)
• MR 1.6 (confidentiality of information)

See also

• RI EAP Opinion 93-53: collecting on leases drafted for a former client is a Rule 1.9 conflict
• RI EAP Opinion 94-10: a former will client and a suit against the trust company 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%2094-16.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 #94-16 REQUEST #470
Issued March 23, 1994

The inquiring attorney represents Client A, a subcontractor, who at the request of a general contractor, B, built two chimneys for C's home. As problems arose, Client A spoke directly with C because B was not available. On one occasion, Client A brought C to the inquiring attorney's law office to discuss construction problems. On another occasion, C met with the inquiring attorney without Client A. After C moved into the home, the inquiring attorney pursued a collection matter for Client A against C for an outstanding bill. Client A was cross claimed into a Superior Court action with B brought by C against B. The inquiring attorney asks whether a conflict exists in his/her representation of Client A due to the previous interactions with C.

The Panel opines that Rule 1.9(a) governs this inquiry. The Rule states that:

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;

Based on the facts as presented, the Panel concludes that the inquiring attorney may represent Client A if Rule 1.9(a) is followed. Since the matters of representation are the same or substantially related and the interests of Client A are or maybe materially adverse to C, the inquiring attorney must obtain consent from C. The inquiring attorney is also obligated to comply with the confidentiality principles of Rule 1.6 and may not use information that was obtained in the former representation to the disadvantage of the former client, C. See, Rule 1.9(b).