My firm once handled a defendant's misdemeanor and domestic cases. Can I now represent plaintiffs suing him for property damage, an unrelated matter, if everyone consents?

Plain-English summary

The inquiring attorney sought to represent plaintiffs against a defendant who allegedly caused extensive property damage to the plaintiffs' home while they were out of state. The attorney's law firm had formerly represented the defendant in misdemeanor and domestic cases, and another attorney in the firm had formerly represented the defendant's father in business matters. The inquiring attorney had informed both the plaintiffs and the defendant about the prior representation, and both consented; the attorney contended that the matters were not substantially related.

The panel analyzed the question under Rule 1.9 (Conflict of Interest: Former Client), which bars representation in the same or a substantially related matter adverse to a former client without consent, and bars using information from the former representation to the former client's disadvantage. The defendant was the former client, having been represented by the firm in the misdemeanor and domestic matters.

The panel concluded that if the inquiring attorney reasonably believes the matters are not the same as or substantially related to either former client's matter, the attorney may represent the plaintiffs against the defendant. The panel cautioned that the attorney must remain mindful that he cannot use information relating to the former representation to the disadvantage of the former client.

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, which renumbered and amended several provisions. 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 Treat this page as historical context, not current guidance.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 firm sue its own former client?

A: Under this opinion, yes, if the current matter is not the same as or substantially related to the former representation; the panel let the attorney proceed on his reasonable belief that the matters were unrelated.

Q: Did client consent resolve the question?

A: The parties had consented, but the panel framed the analysis around whether the matters were substantially related; consent is required by Rule 1.9 only when they are.

Q: What limit applies even if the matters are unrelated?

A: The panel emphasized that the attorney may not use information from the former representation to the disadvantage of the former client.

Background and rules framework

The opinion applies Rule 1.9 (Conflict of Interest: Former Client), corresponding to Model Rule 1.9. As the panel quoted it, the rule bars representation in the same or a substantially related matter adverse to a former client absent consent, and bars using the former client's information to that client's disadvantage. The panel resolved the inquiry on the "substantially related" threshold, deferring to the attorney's reasonable belief that the matters were unrelated.

Citations and references

Rules of Professional Conduct:

• MR 1.9 (duties to former clients)
• RI RPC 1.9

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 95-48: A Former Client's Spouse Is Not a Client
• RI EAP Op. 95-49: Divorce Representation Against a Former Joint Real Estate Client
• RI EAP Op. 95-42: Adverse to a Former Will Client in an Unrelated Matter

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%2095-50.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 #95-50, REQUEST #621
ISSUED - OCTOBER 12, 1995

The inquiring attorney represents the plaintiffs against the defendant who allegedly caused extensive property damage to the plaintiffs' home while the plaintiffs were out of state. The inquiring attorney's law firm formerly represented defendant in misdemeanor and domestic cases. Another attorney in the same firm formerly represented defendant's father in business matters. The inquiring attorney informed both plaintiffs and defendant regarding the representation and both parties have consented to the representation. The inquiring attorney alleges that the matters are not substantially related therefore, he/she seeks to represent the plaintiffs.

The Rule pertinent to this inquiry is Rule 1.9 entitled "Conflict of Interest: Former Client" which 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 interest 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.

In the situation described above, the defendant is the former client who was represented in both misdemeanor and domestic matters by the inquiring attorney's law firm. If the inquiring attorney reasonably believes that the matters are not the same or substantially related to either client, then the attorney may represent the plaintiffs against the defendant. The inquiring attorney must be mindful that he/she cannot use information relating to the representation of the former client to the disadvantage of the former client.