I'm representing a husband in his divorce, and his current wife says I represented her in a divorce years ago. She objects. Can I stay in the case?

Plain-English summary

The inquiring attorney, who had represented the Husband in a divorce action ten years earlier, was representing the Husband in another divorce. At a conference with the Husband, the Current Wife, and counsel, the Current Wife told the attorney that he or she had previously represented her in a divorce action. On reviewing the file, the attorney found that he or she had met with the Wife at the time, though an associate had attended the divorce hearing. The Wife objected to the attorney's representation of the Husband against her.

The panel applied Rule 1.9, which bars a lawyer who formerly represented a client in a matter from 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, and from using information relating to the prior representation to the former client's disadvantage except as Rule 1.6 or Rule 3.3 permits or when the information has become generally known.

The panel believed the former representation was the same as or substantially related to the current representation, and that the attorney was privy to personal, financial, and private information about both the Husband and the Wife from their prior separate divorces. Because the matters were substantially related and the Wife's interests were materially adverse to the Husband's, the panel concluded that, absent the Wife's consent, the attorney may not continue to represent the Husband in the divorce action against the Wife.

Currency note

This opinion was issued in 1995, 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. 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 Treat this page as historical context, not current guidance.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: Could the attorney keep representing the husband?

A: No, not without the wife's consent. The opinion concluded that under Rule 1.9 the attorney may not continue representing the husband against the wife absent her consent after consultation.

Q: Why were the two divorces "substantially related"?

A: The opinion reasoned that the attorney was privy to personal, financial, and private information about both spouses from their prior separate divorces, making the matters substantially related with the wife's interests materially adverse to the husband's.

Q: Did it matter that an associate had attended the wife's hearing?

A: The opinion noted that the attorney had met with the wife even though an associate attended the hearing, and still treated the wife as a former client for purposes of Rule 1.9.

Background and rules framework

The opinion applied Rhode Island Rule of Professional Conduct 1.9 (Model Rule 1.9), the former-client conflict rule. Rule 1.9(a) bars representing a new client in the same or a substantially related matter materially adverse to a former client without the former client's consent, and Rule 1.9(b) bars using information relating to the prior representation to the former client's disadvantage except as Rule 1.6 or Rule 3.3 allows or when the information is generally known. The panel found both the substantial-relationship and material-adversity elements present.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.9 / RI RPC 1.9(a), 1.9(b) (conflict of interest; former client; substantially related matters; use of prior-representation information)

See also

• RI EAP Op. 2016-09: No conflict in a divorce after drafting POAs for the wife's parents
• RI EAP Op. 2004-06: Nonwaivable Rule 1.9 conflict; immigration extreme cruelty

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%2095-20.pdf

Original opinion text

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

FINAL

ETHICS ADVISORY PANEL
OPINION # 95-20, REQUEST # 582
Issued March 23, 1995

The inquiring attorney having represented Husband in a divorce action ten (10) years ago, is representing Husband in another divorce. At a conference between Husband, Current Wife and Counsel, Current Wife advised the inquiring attorney that he/she had previously represented her in a divorce action. Upon review of her/his file, the inquiring attorney states that he/she did meet with Wife at the time but that an associate attended the divorce hearing. The Wife is currently objecting to the inquiring attorney's representation of Husband against her in this matter.

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

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 Panel believes that the former representation is the same or substantially related to the current representation. The inquiring attorney is privy to personal, financial and private information concerning both Husband and Wife in their prior separate divorces. Currently, the matters are substantially related whereby the Wife's interests are materially adverse to the Husband's interests. Rule 1.9 provides that absent the Wife's consent to the representation of Husband, the inquiring attorney may not continue to represent Husband in the divorce action against Wife.