I concluded my client needed a guardian and nursing-home placement, and the client then fired me. May I be appointed guardian of the person of that former client, with an associate drafting the paperwork?

Plain-English summary

A client engaged the inquiring attorney to secure the client's release from a hospital. The attorney learned from hospital staff that the client suffered from a mental disorder and other serious medical problems and, after investigation, concluded that a guardian of the person and of the estate should be appointed and that the client should be placed in a nursing home. When the attorney reported this conclusion to the client, the client dismissed the attorney. In earlier conversations the client had asked that a trust officer from the local bank serve as guardian, but bank policy barred the trust officer from serving as guardian of the person. The attorney asked whether he or she could be appointed guardian of the person of the now-former client, with an associate in the office drafting the necessary paperwork.

The Panel held that Rules 1.9 and 1.10 governed. Rule 1.9 ("Conflict of Interest: Former Client") barred 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 after consultation. The Panel found that the matter of the client's release from the hospital was substantially related to the appointment of a guardian of the person of the client. Because the client refused to consent, Rule 1.9 prohibited the inquiring attorney from so serving, and the attorney could not purport to act for the former client or for a third party, such as the hospital or the bank, in a matter in which the former client's interests were adverse.

The Panel added that under Rule 1.10 ("Imputed Disqualification"), if the inquiring attorney could not serve, an associate in the firm was likewise disqualified from drafting the paperwork, because while lawyers are associated in a firm none of them may knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9, or 2.2.

Currency note

This opinion was issued in 1995 (Opinion 94-79, issued January 11, 1995), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.9 and 1.10 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 these rules. 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 become guardian of a former client after being fired?

A: Not on these facts. The Panel found the guardianship substantially related to the representation, and because the former client refused consent, Rule 1.9 barred the inquiring attorney from serving as guardian.

Q: Does it matter that the lawyer would be acting for the hospital or bank rather than "against" the client?

A: No. The Panel said the attorney could not purport to act for the former client or for a third party, such as the hospital or the bank, in a matter in which the former client's interests were adverse.

Q: Could an associate in the firm handle the guardianship instead?

A: No. The Panel held that if the inquiring attorney could not serve, Rule 1.10 disqualified an associate in the firm from drafting the paperwork.

Background and rules framework

The opinion interprets Rhode Island Rules of Professional Conduct 1.9 (conflict of interest: former client) and 1.10 (imputed disqualification), the analogs of Model Rules 1.9 and 1.10. The analysis turned on the substantial-relationship test: the guardianship petition arose directly from the same medical and capacity facts the attorney developed while representing the client, so absent consent the former-client conflict applied, and Rule 1.10 imputed that disqualification to the rest of the firm.

Citations and references

Rules of Professional Conduct:

• MR 1.9 / RI RPC 1.9 (conflict of interest: former client; substantial-relationship test)
• MR 1.10 / RI RPC 1.10 (imputed disqualification)

See also

• RI EAP Opinion 94-77: conflicts arising from a legal services agency merger under Rules 1.9 and 1.10
• RI EAP Opinion 94-74: a new firm may oppose its lawyers' old firm's former client under Rule 1.10

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%2094-79.pdf

Original opinion text

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

ETHICS ADVISORY PANEL
OPINION #94-79, REQUEST #553
Issued January 11, 1995

A client engaged the inquiring attorney to secure his/her release from a hospital. The inquiring attorney learned from the hospital staff that the client suffers from a mental disorder and other serious medical problems. After investigation, the inquiring attorney concluded that a guardian of the person and of the estate should be appointed for the client and that the client should be placed in a nursing home. The inquiring attorney reported this conclusion to the client. The client then dismissed the inquiring attorney.

In prior conversations with the inquiring attorney, the client had requested that his/her trust officer from the local bank be appointed as guardian. Bank policy, however, prohibited the trust officer from serving as guardian of the person. The inquiring attorney asks whether he/she may be appointed as guardian of the person of the former client and states that an associate in the office would draft the necessary paperwork.

Rules 1.9 and 1.10 apply to the circumstances presented by the inquiring attorney. Rule 1.9 entitled "Conflict of Interest: Former Client" states the following:

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.

Rule 1.10 entitled "Imputed Disqualification" states in pertinent part:

(a) while lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9 or 2.2

The matter of the client's release from the hospital is substantially related to the appointment of a guardian of the person of the client. Accordingly, because the client refused to consent, the inquiring attorney is prohibited by Rule 1.9 from so serving. The inquiring attorney cannot purport to act for the former client or for a third party, such as the hospital or the bank, in a matter in which the former client's interest are adverse. If the inquiring attorney cannot so serve, an associate in the firm is disqualified from "drafting the paperwork" by Rule 1.10(a).