Years ago I did some work for the seller in a real estate closing while representing the buyer. Now the buyer faces an adverse-possession claim. Can I represent the buyer in a third-party warranty claim against that seller?

Plain-English summary

About ten years earlier, the inquiring attorney had represented the buyer of a parcel of real estate. Before the closing, the seller called the attorney about discharging a private mortgage; the attorney prepared that discharge and forwarded it to the mortgagee on the seller's behalf, prepared the warranty deed for the seller, and, after closing, prepared a new water-easement release for the seller when the title company was not satisfied. The seller paid the attorney for those services. Later, the buyer's neighbors filed an adverse-possession claim against the buyer over the property. The attorney notified the seller and called on the seller to pay the defense costs based on the warranty deed, and advised the buyer to add the seller as a third-party defendant under the deed's warranties. The seller objected in writing, arguing the attorney had represented the seller in the original transaction. The attorney asked whether he could represent the buyer in a third-party action against the seller.

The panel concluded he could not. Rule 1.9(a) provides that a lawyer who has formerly represented a client may not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the former client, unless the former client consents after consultation. Here the former client (the seller) had not consented and had objected in writing. The panel added that in all likelihood the attorney would be a witness in the third-party action, so Rule 3.7 would also prohibit him from continuing to represent the buyer.

Currency note

This opinion was issued in October 1998, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.9 and 3.7 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. 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 Treat this page as historical context, not current guidance.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, on a client's behalf, someone the lawyer previously did work for?

A: Not on these facts. The opinion concluded Rule 1.9(a) barred the lawyer from representing the buyer against the seller, because the seller was a former client whose interests were materially adverse in a substantially related matter and who had not consented.

Q: The seller only made a phone call and paid for a few documents. Was the seller really a former client?

A: The panel treated the seller as a former client. It recounted that the attorney had prepared the mortgage discharge, the warranty deed, and a water-easement release for the seller, who paid for those services, and applied Rule 1.9 on that basis.

Q: Was there any other bar to the representation?

A: Yes. The opinion noted that the attorney would in all likelihood be a witness in the third-party action, so Rule 3.7 would also prohibit him from continuing to represent the buyer.

Background and rules framework

The opinion applied Rhode Island Rules of Professional Conduct 1.9 (Model Rule 1.9) and 3.7 (Model Rule 3.7) as originally adopted. Rule 1.9(a) bars a lawyer from 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 3.7 bars a lawyer from acting as advocate at a trial in which the lawyer is likely to be a necessary witness, subject to exceptions. The panel found both applicable: the former client had objected rather than consented, and the attorney was likely to be a witness.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.9 / RI RPC 1.9(a) (conflict of interest: former client)
• Model Rule 3.7 / RI RPC 3.7 (lawyer as witness)

See also

• RI EAP Op. 98-11: Suing a former-client union on an unrelated matter
• RI EAP Op. 99-12: Former-client conflict imputed to the new firm
• 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%2098-13.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. 98-13 Request No. 747
                                  :   Issued October 15, 1998

Facts:
The inquiring attorney states that approximately 10 years ago, he/she represented the
Buyer of a parcel of real estate. Prior to the closing, the inquiring attorney received a call from
the Seller regarding the need to obtain a discharge of a private mortgage on the subject real
estate. The inquiring attorney then prepared the discharge of the private mortgage and forwarded
it to the mortgagee on behalf of Seller. The inquiring attorney also prepared the warranty deed on
behalf of Seller. After the closing, the title company indicated that it was not satisfied with the
release of a particular water easement, and so the inquiring attorney prepared a new release on
Seller's behalf and had it executed. Seller paid the inquiring attorney for his services.

    An adverse possession claim was recently filed against Buyer by Buyer's neighbors with

respect to the subject real estate. The inquiring attorney has notified Seller of the problem and
called upon Seller to pay the cost of defense because of the language in the warranty deed. The
inquiring attorney has advised Buyer to add Seller as a third-party defendant under the warranties
contained in the deed. Seller has recently written to the inquiring attorney claiming that the
inquiring attorney should not be making any claim against him/her because the inquiring
attorney represented Seller in the original transaction.

Issue:

     May the inquiring attorney represent Buyer in a third-party action against Seller?

Opinion:

    No. Rule 1.9(a) prohibits the inquiring attorney from representing Buyer in the claim

against Seller.

Reasoning:

    Rule 1.9 addresses conflicts of interest involving former clients. Rule 1.9(a) provides that

a lawyer who has formerly represented a client in a matter shall not thereafter 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.
In this case, it is clear that the former client has not consented. Indeed, the former client has
issued a written objection to the inquiring attorney's continued representation of Buyer if the
third-party action is to be brought against him/her.
Final Op. 98-13
Page 2

   The Panel would also remind the inquiring attorney that, in all likelihood, he/she will be a

witness in the third-party action against Seller. Rule 3.7 would also prohibit the inquiring
attorney from continuing to represent Buyer.