RIEAP June 10, 1999

Two of the parties fighting over a right-of-way are both former clients of my firm, on opposite sides. Can my firm represent either one?

Short answer: The panel concluded that under Rule 1.9 and Rule 1.10, and absent consent, the firm may represent neither the buyers of the dominant parcel nor the servient-parcel owners, because both are former clients whose interests are now materially adverse in a substantially related matter.

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This page answers the general question as of 1999. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.

View original ethics opinion (PDF)

Plain-English summary

The inquiring attorney's firm had represented the buyers in the purchase of Parcel A, whose description included a right-of-way across Parcel B. About ten years earlier, the inquiring attorney had drafted a deed conveying Parcel B from the grantors to their child. One of those grantors, and the grantee's spouse who now held an interest in Parcel B, asked the firm to represent them in a dispute about whether the right-of-way applied against the buyers of Parcel A. The attorney asked whether the firm could represent any of the interested parties.

The panel concluded that Rule 1.9 applied because the buyers of Parcel A were former clients of the firm and one of the individuals seeking representation was a former client of the inquiring attorney. The panel concluded the firm could not represent the servient-parcel individuals against the buyers of Parcel A absent the buyers' consent, because those individuals' interests were materially adverse to the firm's former clients and the matters were substantially related, the right-of-way relating to both parcels.

The panel further concluded that under both Rule 1.9 and Rule 1.10, the firm could not represent the buyers of Parcel A in the dispute absent the consent of the grantor of Parcel B, because the disputed right-of-way was substantially related to the earlier conveyance of Parcel B that the inquiring attorney had handled.

Currency note

This opinion was issued in June 1999, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.9 and 1.10 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: Could the firm represent the servient-parcel owners against the Parcel A buyers?

A: Not without consent. The opinion concluded that under Rule 1.9 the firm could not represent them against the buyers of Parcel A, its former clients, absent those buyers' consent, because the interests were materially adverse and the matters substantially related.

Q: Could the firm instead represent the buyers of Parcel A?

A: Not without consent either. The opinion concluded that under Rules 1.9 and 1.10 the firm could not represent the buyers absent the consent of the grantor of Parcel B, a former client, because the right-of-way dispute was substantially related to the earlier Parcel B conveyance.

Q: Why did Rule 1.10 come into play?

A: The opinion noted that the earlier deed work was done by the inquiring attorney, and Rule 1.10 imputes to the whole firm a disqualification that would apply to a lawyer in it under Rule 1.9, so the conflict reached the firm as a whole absent consent.

Background and rules framework

The opinion applied Rhode Island Rules of Professional Conduct 1.9 (Model Rule 1.9), barring 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, and 1.10 (Model Rule 1.10) on imputed disqualification, under which lawyers associated in a firm may not knowingly represent a client when any one of them practicing alone would be barred by Rule 1.9, subject to waiver under Rule 1.7. Both rules were applied as originally adopted in Rhode Island.

Citations and references

Rules of Professional Conduct:

Model Rule 1.9 / RI RPC 1.9 (conflict of interest: former client)
Model Rule 1.10 / RI RPC 1.10 (imputed disqualification: general rule)

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%2099-14.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. 99-14, Request No. 779
Issued June 10, 1999

Facts:

       The inquiring attorney's law firm represented the buyers in the purchase of a parcel of real

estate, Parcel A. The description of Parcel A contains a right-of-way across another parcel of real
estate, Parcel B. About ten years ago, the inquiring attorney drafted a deed on behalf of the previous
owners (grantors) of Parcel B in which the grantors conveyed Parcel B to their child (grantee). One of
these grantors, and the grantee's spouse who now has an interest in Parcel B, have requested that the
law firm represent them in a dispute regarding the applicability of the right-of -way to the buyers of
Parcel A.

Issue Presented:

       The inquiring attorney asks whether his/her law firm may represent any of the interested

parties in this dispute.

Opinion:

      Pursuant to Rule 1.9 and Rule 1.10, absent consent the law firm may represent neither the

buyers of Parcel A nor the individuals who have requested representation in the dispute of the
right-of-way.

Reasoning:

       The buyers of Parcel A are former clients of the law firm, and one of the individuals who has

requested representation is a former client of the inquiring attorney. Therefore Rule 1.9 applies. The
rule 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

Final 99-14
Page 2

                    3.3 would permit or require with respect to a client or when the
                    information has become generally known.

      Also applicable to this inquiry is Rule 1.10 which states in pertinent part:

                    Rule 1.10. Imputed Disqualification: General Rule. - (a)
                    While lawyers are associated in a firm, none of them shall
                    knowingly represent a client when any one of them practicing
                    alone would be prohibited from doing so by Rules 1.7, 1.8(c),
                    1.9 or 2.2.

                                                   ***
                    (d) A disqualification prescribed by this rule may be waived by
                    the affected client under the conditions stated in Rule 1.7.

      The individuals who have requested representation have interests in Parcel B which are

materially adverse to the interests of the law firm's former clients, the buyers of Parcel A. In addition,
the matters are substantially related. The right-of-way relates to Parcel B as well as to Parcel A which
was the subject of the law firm's prior representation of the buyers of Parcel A. The Panel concludes
that pursuant to Rule 1.9, the law firm may not represent the individuals who are requesting
representation in a dispute against the buyers of Parcel A absent the consent of the buyers of Parcel A.
The panel further concludes that pursuant to both Rule 1.9 and Rule 1.10, the law firm may not
represent the buyers of Parcel A in this dispute absent the consent of the grantor of Parcel B, because
the disputed right-of-way is substantially related to Parcel B, the conveyance of which was the subject
of the inquiring attorney's prior representation of the grantor of Parcel B.

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