Years ago I represented a union on contract and labor matters. Can I now represent a former union officer suing that union for defamation over statements it made recently?

Plain-English summary

The inquiring attorney had represented a local union chapter on contract and labor-relations matters from 1988 to 1991 while an associate at a law firm; when he left the firm in 1991, the union remained a client of the firm. In 1995, two union officers consulted him about a pension claim, but he was not retained by the union or anyone else in that matter. He had recently appeared as co-counsel for a former union officer who filed a defamation suit against the union and its current officers, arising out of alleged statements by union officials in 1997. The union asked him to withdraw for a conflict of interest, and he asked whether the Rules prohibited the representation.

The panel concluded they did not. Because the union was a former client, Rule 1.9 applied. Although the interests of the union's former officer were materially adverse to the union, the panel concluded that the earlier contract and labor-relations matters and the pending defamation suit over alleged 1997 statements were not the same or substantially related matters. Accordingly, the representation was permissible without the union's consent, citing the panel's Opinion 98-05. Under Rule 1.9(b), however, the attorney had to comply with the confidentiality rules and could not use confidential information obtained in the prior representation to the union's disadvantage in the pending litigation.

Currency note

This opinion was issued in June 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 Treat this page as historical context, not current guidance.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 lawyer sue a former client for a new client if the former client objects?

A: It depends on relatedness. The opinion concluded that Rule 1.9 permitted the representation without the former client's consent because the prior labor work and the new defamation suit were not the same or substantially related matters, even though the union objected.

Q: What made the two matters not "substantially related"?

A: The opinion contrasted the 1988-1991 contract and labor-relations representation with a defamation suit over alleged statements made in 1997, concluding they were not the same or substantially related matters.

Q: Does the lawyer have any continuing duty to the former-client union?

A: Yes. Under Rule 1.9(b), the opinion required the attorney to comply with the confidentiality rules and not use confidential information obtained in the prior representation to the union's disadvantage in the pending litigation.

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. 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 concluded the "substantially related" element was not met, so consent was unnecessary, while the Rule 1.9(b) 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. 98-05 (1998) (former-client conflict where matters are not substantially related): cited as controlling

See also

• RI EAP Op. 98-13: Representing the buyer against a former-client seller
• RI EAP Op. 99-11: Contributing to a fund for a court clerk
• RI EAP Op. 99-14: Former-client conflict in a right-of-way dispute

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%2098-11.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. 98-11, Request No. 748
                                      Issued June 11, 1998

Facts:

     The inquiring attorney represented a local chapter of a union (union) with respect to contract and

labor relations matters from 1988 to 1991 while an associate in a law firm. When he/she left the law firm
in 1991, the union remained a client of the law firm. In 1995, two officers of the union consulted with the
inquiring attorney about a pension claim, but the inquiring attorney was not retained by the union or any
other party in that matter.

     The inquiring attorney has recently entered his/her appearance as co-counsel on behalf of

a former officer of the union who has filed a defamation suit against the union and its current officers.
The pending action arises out of alleged statements made by union officials in 1997. The union, through
its current president, has asked the inquiring attorney to withdraw from the representation by reason of a
conflict of interest.

Issue Presented:

    The inquiring attorney asks whether the Rules of Professional Conduct prohibit his/her

representation of the union's former officer in the pending litigation.

Opinion:

   The union is a former client of the inquiring attorney. Therefore, Rule 1.9 (Conflict of Interest:

Former Client) applies. The representation of the union's former officer in the defamation suit is permitted
because the matters are not the same or substantially related.

Reasoning:

     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;

Final Op. 98-11
Page 2

    (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 interests of the union's former officer are materially adverse to the interests of the inquiring

attorney's former client, the union. However, the contract and labor relations matters in which the
inquiring attorney represented the union and the pending defamation suit relating to alleged statements
made in 1997 are not the same or substantially related matters. Accordingly, the inquiring attorney's
representation of the union's former officer is permissible without the union's consent. See R.I. Sup. Ct.
Ethics Advisory Panel Op. 98-05 (1998). In accordance with Rule 1.9(b), the inquiring attorney must
comply with the confidentiality rules and may not use confidential information obtained in the prior
representation to the disadvantage of the union in the pending litigation.