At my old firm I represented a client in salvage claims. My new firm wants me to defend insurance companies against that same client in unrelated matters. Does Rule 1.9 permit it, and can the client disqualify me?

Plain-English summary

While employed by Law Firm A, the inquiring attorney represented a client in salvage law suit claims. The attorney later moved to Law Firm B, which sought to represent various defense insurance companies against that same client. The client, through counsel, sought to disqualify the attorney from representing a defense insurance company against the client in a pending matter. The attorney asked whether he or she could represent the defendant insurance companies against a former client in matters unrelated to the former representation.

The Panel answered yes. It set out Rule 1.9 ("Conflict of Interest: Former Client") and identified the crucial issue as whether the matters were "the same or substantially related." Quoting the comments to Rule 1.9, the Panel explained that where a lawyer has been directly involved in a specific transaction, subsequent representation of others with materially adverse interests is clearly prohibited, but a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a wholly distinct problem of that type, even adverse to the prior client.

Applying that comment, the Panel concluded that the attorney would be representing clients against the former client but in matters not related to the former representation, which Rule 1.9 permits. It cautioned, however, that under Rule 1.9(b) a lawyer may not use information relating to the representation to the disadvantage of the former client, and that the attorney has a duty to preserve the former client's confidences under Rule 1.6.

Currency note

This opinion was issued in 1996 (Opinion 96-09, issued May 16, 1996), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.9 and 1.6 as they 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 Treat this page as historical context, not current guidance.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 mentioned here.

Common questions

Q: Can I take a case against a former client after changing firms?

A: On these facts the Panel said yes, so long as the new matter is not the same or substantially related to the former representation, subject to the confidentiality limits of Rules 1.9(b) and 1.6.

Q: Does having "recurrently handled" a type of problem for the former client bar me from adverse work?

A: No, per the comment the Panel quoted. Recurrently handling a type of problem does not preclude later representing another client in a wholly distinct problem of that type, even adverse to the former client.

Q: Could the former client disqualify the lawyer here?

A: The Panel's analysis pointed to no disqualifying conflict, because the matters were unrelated. It stressed that the lawyer still may not use or reveal the former client's confidences.

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 the Rule 1.9 comment distinguishing direct involvement in a specific transaction from recurrent handling of a type of problem, permitting adverse representation in wholly distinct later matters.

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)

See also

• RI EAP Opinion 94-74: a new firm may oppose its lawyers' old firm's former client under Rule 1.10
• RI EAP Opinion 96-04: a lawyer may oppose a former divorce client in an unrelated injury case under Rule 1.9

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%2096-09.pdf

Original opinion text

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

ETHICS ADVISORY PANEL
OPINION 96-09 - REQUEST 657
ISSUED - May 16, 1996

The inquiring attorney, while employed by Law Firm A, represented Client in salvage law suit claims. The inquiring attorney is now employed at Law Firm B which seeks to represent various defense insurance companies against Client. The Client, through counsel, seeks to disqualify the inquiring attorney from representing a defense insurance company against Client in a pending matter.

Issue Presented:

May the inquiring attorney represent defendant insurance companies against a former client in matters unrelated to the former representation?

Opinion:

Yes.

Reasoning:

The applicable Rule to this inquiry is Rule 1.9 entitled "Conflict of Interest: Former Client." Rule 1.9 entitled "Conflict of Interest: Former Client" addresses the situation when an attorney seeks to represent a client against a former client. Rule 1.9 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 crucial issue is whether or not the matters are the "same or substantially related." The comments to that rule propose that the matters addressed in subsection (a) depend upon the facts of a particular case.

When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests clearly is prohibited... a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a wholly distinct problem of that type even though the subsequent representation involves a position adverse to the prior client. (See, Comments to Rule 1.9.)

Under the current set of facts, the inquiring attorney would be representing clients against the former client but in matters not related to the former representation. Note however, Rule 1.9(b) states that a lawyer may not use information relating to the representation to the disadvantage of the former client. The inquiring attorney has a duty to preserve the former client's confidences under Rule 1.6.