My law partner drafted the deed and closing documents for a property Owner in a sale, and I represent the other side in a breach-of-contract suit against that Owner. Do Rules 1.9 and 1.10 require me to withdraw?

Plain-English summary

The inquiring attorney represented A in a breach-of-contract action concerning a Lease and Option to Purchase property, with A as Lessee and the Owners as Lessor. After negotiations, the property was listed and a purchaser, B, was found. The real estate broker retained the inquiring attorney's law partner on behalf of B to conduct a title examination and to draft the warranty deed, power of attorney, and other legal documents for the Owner's signature in connection with the sale. In correspondence, the law partner counseled B on the closing documents, and B's return correspondence indicated that B regarded the law partner as his or her lawyer. The Owner's legal counsel alleged that the inquiring attorney had a conflict of interest and had to withdraw from representing A, and the inquiring attorney asked whether he or she could continue.

The Panel set out Rule 1.9 ("Conflict of Interest: Former Client"), which bars representing another person in the same or a substantially related matter materially adverse to a former client absent consent after consultation, and Rule 1.10 ("Imputed Disqualification"), applicable because the two attorneys practiced in the same firm. Under Rule 1.10(a), while lawyers are associated in a firm, none may knowingly represent a client when any one of them practicing alone would be prohibited by Rules 1.7, 1.8(c), 1.9, or 2.2.

The Panel found that the inquiring attorney's law partner had undertaken to represent the Owner in preparing the deed, power of attorney, and other closing documents for the Owner's signature. As a result, the inquiring attorney could not continue to represent A in the substantially related breach-of-contract matter against the Owner without the Owner's consent.

Currency note

This opinion was issued in 1995 (Opinion 94-80, issued March 23, 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 drafting closing documents for a party's signature make that party your client?

A: The Panel treated it that way here. It found the law partner had "undertaken to represent the Owner" by preparing the warranty deed, power of attorney, and other documents for the Owner's signature, reinforced by B's belief that the partner was B's lawyer.

Q: Why was the inquiring attorney affected by the partner's work?

A: Because they practiced in the same firm. Rule 1.10 imputed the partner's representation of the Owner to the inquiring attorney, so the firm as a whole faced the conflict.

Q: Could the inquiring attorney keep representing A?

A: Not without the Owner's consent. The Panel concluded the breach-of-contract matter was substantially related, so the attorney could not continue against the Owner absent that consent.

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 Panel treated the partner's document preparation for the Owner as an attorney-client representation, which under Rule 1.10 disqualified the whole firm from continuing adverse to the Owner in a substantially related matter unless the Owner consented.

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%2094-80.pdf

Original opinion text

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

ETHICS ADVISORY PANEL
OPINION # 94-80, REQUEST # 554
Issued March 23, 1995

The inquiring attorney represents A in connection with a breach of contract action concerning a Lease and Option to Purchase certain property between A as Lessee and Owners as Lessor. After negotiations, the property was listed for sale and a purchaser, B, was obtained. The real estate broker retained the inquiring attorney's law partner on behalf of B to conduct a title examination and was asked by the real estate broker to draft the warranty deed, power of attorney, and various other legal documents for the Owner's signature in connection with the sale.

The inquiring attorney's law partner in correspondence counseled B on the closing documents pertaining to the sale of Owner's property. Return correspondence from B indicated that B regarded the law partner as his/her lawyer.

The Owner's legal counsel alleges that the inquiring attorney has a conflict of interest and believes that the inquiring attorney must withdraw from representing A. The inquiring attorney seeks advice regarding whether he/she may continue to represent A in the breach of contract action.

With respect to whether the inquiring attorney has a conflict of interest, Rule 1.9 entitled "Conflict of Interest: Former Client" applies. That Rule provides 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.

As part of this discussion, Rule 1.10 entitled "Imputed Disqualification" is applicable due to the attorneys practicing in the same law firm. Rule 1.10 states:

(a) While lawyers are associated in a firm, no one of them shall knowingly represent a client when anyone of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9 or 2.2.

It appears from the inquiry that the inquiring attorney's law partner undertook to represent the Owner. As a result the inquiring attorney may not continue to represent A in this substantially related matter without the Owner's consent.