Opposing counsel says I can't represent the wife in this divorce because I once gave her a refrigerator and drafted a family partnership that included both spouses. Do either of those create a conflict?

Plain-English summary

The inquiring attorney had represented the wife in a contested divorce for almost a year. At a deposition of the husband, opposing counsel objected that the attorney had formerly represented the husband and therefore had a conflict. The asserted bases were that the attorney had given the wife, who was also the attorney's employee and relative, a refrigerator as a Christmas bonus during the marriage, and that the attorney had drafted a partnership agreement for real estate purchased by several members of the attorney's family, mostly husbands and wives, including the attorney and spouse and the divorcing husband and wife. After the divorce began, the husband and wife had sold their partnership interests for equal sums, the partnership real estate was later sold, and neither the real estate, the sale proceeds, nor the refrigerator was in dispute in the division of marital assets.

The panel concluded there was no conflict. In drafting the partnership agreement, the attorney had served as an intermediary under Rule 2.2, establishing the family partnership on a mutually advantageous basis for common clients. Under Rule 1.9(a), the husband's and wife's partnership interests were not marital assets in the divorce and the two matters were not substantially related, so the attorney could continue to represent the wife. Giving a refrigerator to an employee-relative did not constitute legal representation of the employee or the spouse and gave rise to no conflict. The panel cautioned that the Rules warn against opposing counsel misusing a conflict-of-interest charge as a technique of harassment or a procedural weapon.

Currency note

This opinion was issued in April 1997, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.9, 2.2, and 1.7 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 abrogated the intermediary rule (Rule 2.2). 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 Treat this page as historical context, not current guidance.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: Does drafting a partnership for both spouses bar later representing one in a divorce?

A: Not here. The opinion treated the partnership drafting as intermediary work for common clients under Rule 2.2, and found the partnership interests were not marital assets and not substantially related to the divorce under Rule 1.9(a).

Q: Can giving a client a gift create a conflict of interest?

A: The opinion concluded that giving the wife a refrigerator as an employee-relative was not legal representation of her or the husband and did not give rise to any conflict under the Rules.

Q: What did the panel say about raising conflicts at a deposition?

A: The opinion cautioned that the Rules warn against opposing counsel misusing a conflict-of-interest charge as a technique of harassment or as a procedural weapon, citing the Scope and comment to Rule 1.7.

Background and rules framework

The opinion applied Rhode Island Rules of Professional Conduct 1.9(a), 2.2, and 1.7. Rule 1.9(a) bars representing a person in a matter substantially related to a former client's matter where interests are materially adverse absent consent. Rule 2.2 (since abrogated) addressed a lawyer acting as intermediary among common clients. The panel invoked the Scope and comment to Rule 1.7 for its caution about conflict claims used as harassment. It resolved the inquiry by finding the prior dealings neither created a former-client relationship adverse to the divorce nor were substantially related to it.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.9 / RI RPC 1.9(a) (conflict of interest: former client)
• Model Rule 2.2 / RI RPC 2.2 (lawyer as intermediary; since abrogated)
• Model Rule 1.7 / RI RPC 1.7 (Scope and comment; caution against conflict claims as harassment)

See also

• RI EAP Op. 97-13: When a spouse works at the opposing firm
• RI EAP Op. 97-18: Representing the husband in a divorce against a former joint client

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%2097-07.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Final

RHODE ISLAND SUPREME COURT
ETHICS ADVISORY PANEL
Opinion No. 97-07, Request No. 707
Issued April 10, 1997

Facts:

The inquiring attorney has represented the wife in a contested divorce for almost a year. At a recent deposition of the husband, opposing counsel objected to the inquiring attorney's represen- tation of the wife, alleging that the inquiring attorney had formerly represented the husband and therefore has a conflict of interest. Specifically, the inquiring attorney had given the wife, who is also his/her employee and relative, a refrigerator as a Christmas bonus during the marriage. Ad- ditionally, the inquiring attorney had drafted a partnership agreement relating to real estate pur- chased by several members of the inquiring attorney's family (mostly husbands and wives), in- cluding the inquiring attorney and his/her spouse, and the husband and wife in the instant divorce action.

The inquiring attorney states that after the divorce action was commenced, the husband and wife sold their interests in the partnership, each netting an equal sum of money. The partnership real estate was later sold. The real estate, the proceeds of its sale, and the refrigerator are not in dispute relative to the distribution of marital assets.

Issue Presented:

Does the inquiring attorney have a conflict of interest which precludes him/her from repre- senting the wife, either by virtue of having given the wife the refrigerator or by drafting the part- nership agreement?

Opinion

There is no conflict of interest and the inquiring attorney may continue to represent the wife in the divorce action.

Reasoning

In drafting the partnership agreement, the inquiring attorney served as an intermediary, estab- lishing a relationship, i.e. the family partnership, on an amicable and mutually advantageous ba- sis for common clients. See Rule 2.2 and Comment to Rule 2.2. Rule 1.9(a) of the Rules of Pro- fessional Conduct states that an attorney shall not represent a person in the same or substantially related matter in which that person's interests are materially adverse to the interests of a former client, unless the former client consents. The husband and wife's interests in the partnership are not marital assets in the divorce action, and the two matters are not substantially Final Op. 97-07 Page 2

related. The Panel concludes that there is no conflict of interest precluding the inquiring attorney from continuing to represent the wife.

Bestowing a refrigerator to one's employee-relative does not constitute legal representa- tion of either the employee or his/her spouse and does not otherwise give rise to any conflict of interest under the Rules of Professional Conduct. The Rules caution, however, against the mis- use by opposing counsel of raising a conflict of interest as a technique of harassment or as a pro- cedural weapon. See Scope and Comment to Rule 1.7.