Four years ago my firm represented Able in a car-accident injury claim. Can we now represent Baker, a passenger injured in a different accident, in a claim adverse to Able?

Plain-English summary

The inquiring attorney's law firm had represented Able, a minor, in a claim for injuries sustained as a passenger in a motor vehicle accident; the matter settled about four years earlier, ending the firm's representation of Able. The firm was recently engaged by Baker to represent him in a claim for injuries sustained as a passenger in an automobile driven by Charlie and owned by Able. The attorney asked whether the firm had a conflict of interest in representing Baker.

The panel concluded it did not. Able was a former client, so Rule 1.9 applied. Although Baker's interests were materially adverse to Able's, the automobile accident in which the firm had represented Able and the accident in which it proposed to represent Baker were not the same or substantially related matters. Accordingly, the firm's representation of Baker was permissible without Able's consent, citing the panel's Opinion 93-95. Under Rule 1.9(b), the firm still had to comply with the confidentiality rules and could not use information obtained in the prior representation to Able's disadvantage in Baker's matter.

Currency note

This opinion was issued in February 1998, 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 Treat this page as historical context, not current guidance.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: Can a firm take a case adverse to a former client?

A: It depends on relatedness. The opinion concluded that under Rule 1.9 the firm could represent the new client against the former client without consent, because the two matters were not the same or substantially related, even though the interests were adverse.

Q: Why weren't the two car-accident claims "substantially related"?

A: The opinion treated them as separate accidents. The prior representation concerned Able's injuries in one accident; the new representation concerned Baker's injuries in a different accident, so the matters were not the same or substantially related.

Q: Does the firm owe the former client anything going forward?

A: Yes. Under Rule 1.9(b), the opinion required the firm to comply with the confidentiality rules and not use information obtained in the prior representation to the former client's disadvantage in the new matter.

Background and rules framework

The opinion applied Rhode Island Rule of Professional Conduct 1.9 (Model Rule 1.9) as originally adopted. Rule 1.9(a) bars representing a person in the same or a substantially related matter materially adverse to a former client absent the former client's consent after consultation. Rule 1.9(b) bars using information relating to the prior representation to the former client's disadvantage except as Rule 1.6 or 3.3 would permit, or when the information has become generally known. The panel found the "substantially related" element unmet, so consent was unnecessary, while the confidentiality duty remained.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.9 / RI RPC 1.9(a), 1.9(b) (conflict of interest: former client)

Other opinions cited:

• RI EAP Op. 93-95 (former-client representation where matters are not substantially related): cited as controlling

See also

• RI EAP Op. 98-11: Suing a former-client union on an unrelated matter
• RI EAP Op. 98-13: Representing the buyer against a former-client seller
• RI EAP Op. 99-12: Former-client conflict imputed to the new firm

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%2098-05.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 98-05 - Request 738
                             Issued February 19, 1998

Facts:

   The inquiring attorney's law firm represented Able, a minor, in a claim for injuries he/she

sustained as a passenger in a motor vehicle accident. The matter was settled about four years ago
at which time the law firm's representation of Able terminated. The law firm was recently engaged
by Baker to represent him/her in a claim for injuries he/she sustained as a passenger in an
automobile driven by Charlie and owned by Able.

Issue Presented:

    The inquiring attorney asks whether the law firm has a conflict of interest in the representation

of Baker under the Rules of Professional Conduct.
Opinion:

    Able is a former client. Accordingly Rule 1.9 applies. Because the firm's representation

of Able is not the same or substantially related to the firm's representation of Baker, under Rule
1.9, the inquiring attorney's law firm may represent Baker without Able's consent.

Reasoning:

     Rule 1.9 states:

           Rule 1.9. Conflict of Interest: Former Client. - 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.

Final 98-05
Page 2

     Although the interests of Baker are materially adverse to the interests of Able, the automobile

accident in which the law firm represented Able for personal injuries and the accident in
which the law firm proposes to represent Baker for his/her injuries are not the same or substantially
related matters. Accordingly, the firm's representation of Baker is permissible without the
consent of Able. See R.I. Sup. Ct. Ethics Advisory Panel Op. 93-95. Pursuant to Rule 1.9(b),
the law firm must comply with the confidentiality rules and may not use information obtained in
the prior representation to the disadvantage of Able in Baker's matter.