I drafted a joint estate plan for a husband and wife. Years later the wife, now divorcing, wants me to redesign her estate to exclude the husband. Does Rule 1.9 let me do that without the husband's consent?

Plain-English summary

The inquiring attorney had prepared an estate plan for both a husband and wife, including trusts and wills. Years later, the wife asked the attorney to redesign her estate plan because she was divorcing her husband. Both spouses had separate counsel for the divorce. The attorney asked whether he or she could redesign the wife's estate if her intention was to exclude the husband.

The Panel answered no in the qualified sense that, if the wife's modification became materially adverse to the husband's interests, the husband would have to consent under Rule 1.9 ("Conflict of Interest: Former Client"). The Panel set out Rule 1.9 and explained that the issue was whether the matters were "the same or a substantially related matter." Quoting Ogden Energy Resource Corp. v. State of R.I. and Kevlik v. Goldstein, the Panel described the substantially-related test as prohibiting any situation in which a lawyer could have obtained confidential information in the first representation that would be relevant in the second, and noted that once a substantial relationship is found, a presumption arises that confidential information was disclosed.

Applying that analysis, the Panel concluded that if the husband's and wife's interests were materially adverse, and if the attorney obtained confidential information in the first representation relevant to the second, then the husband must consent after consultation to the attorney's representation of the wife.

Currency note

This opinion was issued in 1996 (Opinion 96-07, issued April 10, 1996), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.9 as it stood at the time. 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 Treat this page as historical context, not current guidance.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 or case cited here.

Common questions

Q: I did a couple's joint estate plan; can I now revise one spouse's estate against the other?

A: Not automatically. The Panel held that if the revision is materially adverse to the former joint client and the matters are substantially related, the excluded spouse must consent under Rule 1.9.

Q: What makes the new estate work "substantially related" to the joint plan?

A: The Panel applied the Ogden/Kevlik test: whether the lawyer could have obtained confidential information in the first representation that would be relevant in the second. If so, a presumption of shared confidences arises.

Q: Does it matter that both spouses have divorce lawyers?

A: The Panel noted the separate divorce counsel but grounded the conflict analysis in the prior estate representation, not the divorce, so the husband's status as a former estate client drove the consent requirement.

Background and rules framework

The opinion interprets Rhode Island Rule of Professional Conduct 1.9 (conflict of interest: former client), with reference to Rule 1.6 (confidentiality), the analogs of Model Rules 1.9 and 1.6. The Panel relied on federal decisions applying the substantial-relationship test and its presumption of disclosed confidences to determine when a former joint client's consent is required.

Citations and references

Rules of Professional Conduct:

• MR 1.9 / RI RPC 1.9 (conflict of interest: former client; substantial-relationship test)
• MR 1.6 / RI RPC 1.6 (confidentiality of information)

Cases:

• Ogden Energy Resource Corp. v. State of R.I., 1993 WL 406375 (D.R.I.), substantial-relationship test
• Kevlik v. Goldstein, 724 F.2d 844, 851 (1st Cir. 1984), substantial-relationship test
• Putnam Resources, Ltd. Partnership v. Sammartino, Inc., 124 F.R.D. 530, 531-32 (D.R.I. 1988), presumption of disclosure
• Pfarr v. Island Services Co., 124 F.R.D. 24 (D.R.I. 1989), discussion of the substantially-related test

See also

• RI EAP Opinion 96-04: a lawyer may oppose a former divorce client in an unrelated injury case under Rule 1.9
• RI EAP Opinion 2016-09: no conflict in a divorce after drafting powers of attorney for the wife's parents

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%2096-07.pdf

Original opinion text

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

ETHICS ADVISORY PANEL
OPINION 96-07, - REQUEST # 650
ISSUED - April 10, 1996

FACTS:

The inquiring attorney prepared an estate plan for both husband and wife which included trusts and wills. Years later, wife asked the inquiring attorney to redesign her estate plan because she is divorcing her husband. Both husband and wife have other counsel for the divorce.

ISSUES PRESENTED:

May the inquiring attorney redesign wife's estate if her intention is to exclude her husband.

OPINION:

No. If the wife's modification of her estate becomes materially adverse to her husband's interests, then the husband must consent to the representation pursuant to Rule 1.9.

REASONING:

This inquiry involves a discussion of Rule 1.9 entitled "Conflict of Interest: Former Client." Rule 1.9 provides:

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 issue faced by the inquiring attorney is whether the interests are "the same or a substantially related matter." Rule 1.9's "substantially related" language prohibits any situation in which a "lawyer could have obtained confidential information in the first representation that would have been relevant in the second." Ogden Energy Resource Corp. v. The State of R.I., 1993 WL 406375, 4 (D.R.I.), citing Kevlik v. Goldstein, 724 F.2d 844, 851 (1st Cir. 1984). Once a substantial relationship is found, there arises a presumption of the disclosure of confidential information. Ogden, 4 citing Putnam Resources, Limited Partnership v. Sammartino, Inc., 124 F.R.D. 530, 531-32 (D.R.I. 1988).

In accordance with the above-described analysis, if the husband's and wife's interests are materially adverse, and if the inquiring attorney obtained confidential information in the first representation that is relevant in the second representation, then the husband must consent after consultation to the inquiring attorney's representation of the wife. See also, Pfarr v. Island Services Co., Inc., 124 F.R.D. 24 (D.R.I. 1989) for a discussion of Kevlik and the "substantially related" test.