A former client I met with once, years ago and don't recall, now objects to my representing his wife in their divorce, even though opposing counsel told me my former client didn't object and I relied on that for months. Can I keep representing the wife?

Plain-English summary

An attorney asked the panel whether he could continue representing Mrs. X in a divorce action. Attorney A had represented Mr. X, Mrs. X's husband, in the same divorce since January 1989; several months later Mrs. X retained the inquiring attorney. About five months into that representation, Attorney A told the inquiring attorney that Mr. X had met with him two or three years earlier about his domestic problems. When the inquiring attorney asked whether Mr. X objected to the representation of Mrs. X, Attorney A reported that Mr. X did not object, and the inquiring attorney relied on that and continued representing Mrs. X. About three weeks later, Mr. X apparently changed his mind and objected. The inquiring attorney, who meets hundreds of prospective clients a year and keeps no notes of preliminary meetings, had no recollection of the earlier conference with Mr. X, though office records showed Mr. X had paid $150 for it in 1986.

The panel held that Mr. X's consultation created an attorney-client relationship, activating Rule 1.9, which bars a lawyer who formerly represented a client from later representing another person in the same or a substantially related matter materially adverse to the former client's interests, absent the former client's consent after consultation. Citing its own Opinion 89-7 and the standard from Kevlik v. Goldstein, 724 F.2d 844 (1st Cir. 1984), quoted in Putnam Resources, Limited Partnership v. Sammartino Inc., the panel noted that even an attorney who believes he learned nothing pertinent from the former client cannot represent an adverse present client without express consent after consultation from both. Absent Mr. X's express consent, Rule 1.9(a) would clearly bar the representation, but the inquiring attorney stated Mr. X consented in August 1989 and that he relied on that consent.

The panel explained that Rule 1.9 protects client confidences and ensures loyalty, not to let a former client withdraw consent whenever convenient, so a former client who validly consents and is relied upon ordinarily could not withdraw that consent three weeks later to interrupt the relationship. But a former client's consent must be informed, requiring full disclosure, meaning a reasonable effort to expose present problems and anticipate future perils rather than conclusory statements, citing New Jersey Advisory Committee on Professional Ethics Opinion 373 and DeBott v. Parker, 560 A.2d 1323 (1988). The panel found it could not determine whether Mr. X received the full disclosure necessary to make his consent valid, characterized the adequacy of disclosure as a factual determination better handled in an adversarial proceeding, citing its own Opinion 89-4, and declined to take a position on whether Mr. X consented, whether that consent was valid, or whether he was bound by it. The panel therefore declined to offer the inquiring attorney any protection.

Currency note

This opinion was issued in January 1990, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.9(a) 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: If opposing counsel tells me his client doesn't object to my representation, is that enough consent under Rule 1.9?

A: The panel did not decide that question on these facts. It held it could not determine whether the former client had received the full disclosure necessary to make any reported consent valid, and declined to rule on the issue, leaving it to an adversarial proceeding.

Q: Can a former client withdraw consent to an adverse representation after I've relied on it for weeks?

A: The opinion suggests not ordinarily, explaining that Rule 1.9 is not meant to let a former client deprive a present client of counsel when convenient, so a former client who validly, informedly consents and is relied upon would not ordinarily be permitted to withdraw that consent later. But the panel still declined to resolve whether the consent here was validly given in the first place.

Q: What makes a former client's consent to an adverse representation "informed" under Rule 1.9?

A: The opinion states that informed consent requires full disclosure, meaning a reasonable effort to expose present problems and anticipate future perils, not a set of conclusory statements, citing DeBott v. Parker and New Jersey Advisory Committee on Professional Ethics Opinion 373.

Background and rules framework

The opinion applies Rule 1.9(a) of the Rhode Island Rules of Professional Conduct, as adopted effective November 15, 1988, barring a lawyer from representing a person materially adverse to a former client in the same or a substantially related matter absent the former client's informed consent after consultation, to a dispute over whether a former one-time consultation client's later-reported and then-withdrawn consent satisfied that standard.

Citations and references

Rules of Professional Conduct:

• MR 1.9 (conflict of interest, former client)
• RI RPC 1.9(a), as adopted November 15, 1988

Statutes:

• None cited.

Cases:

• Kevlik v. Goldstein, 724 F.2d 844 (1st Cir. 1984), cited for the substantial-relation standard for former-client conflicts, citing with approval Analytica, Inc. v. NPD Research, Inc., 708 F.2d 1263, 1266 (7th Cir. 1983).
• Putnam Resources, Limited Partnership v. Sammartino Inc., et al, C.A. No. 87-0414B, Report and Recommendation (D.R.I. January 13, 1989), quoted for the same standard.
• DeBott v. Parker, 560 A.2d 1323 (1988), cited for what full disclosure supporting informed consent requires.

Other opinions cited:

• RI EAP Opinion 89-7 (issued May 4, 1989): held an attorney could not represent a present client adverse to a former client absent express consent after consultation from both, even absent belief that pertinent confidences were learned.
• RI EAP Opinion 89-4 (issued February 21, 1989): cited for the position that contested fact situations are better handled in an adversarial proceeding than by panel review.
• New Jersey Advisory Committee on Professional Ethics Opinion 373: cited for the requirement that informed consent requires full disclosure.

See also

• RI EAP Opinion 89-04: Panel Declines to Rule on Continued Representation Where a Contested Fact Question Exists Whether an Attorney-Client Relationship Arose With the Opposing Driver
• RI EAP Opinion 89-03: Panel Declines to Rule on Continued Representation of a Husband in a Marital Dispute After a Prior Joint Adoption

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%2090-02.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

DIGEST OF ETHICS ADVISORY PANEL
OPINION #90-2, REQUEST #472
Issued January 18, 1990

An attorney seeks Panel advice as to whether he may continue to represent a certain client under the circumstances he describes.

The attorney advises the Panel that in January of 1989 an individual we shall refer to as Mr. X retained Attorney A to represent him in a divorce action. Several months later Mr. X's wife, Mrs. X, retained the inquiring attorney. Approximately five months after the inquiring attorney began representing Mrs. X, Attorney A advised him that his client, Mr. X, had met with the inquiring attorney two or three years earlier, apparently concerning his domestic problems. The inquiring attorney states that he asked Attorney A whether Mr. X objected to his representation of Mrs. X. The inquiring attorney indicates that Attorney A stated that Mr. X did not object. The inquiring attorney relied upon Attorney A's representations and continued to serve as attorney for Mrs. X. Approximately three weeks passed. The inquiring attorney states that Mr. X apparently changed his mind during this time and now objects to his representation of Mrs. X.

The inquiring attorney advises the Panel that he meets with hundreds of potential clients per year. He states that it is his practice not to take notes or keep any record of these preliminary meetings. He adds that he has absolutely no recollection of the conference with Mr. X, but that a review of his office records shows that in 1986 Mr. X sent his office a check for $150 to cover the cost of the conference with him. The inquiring attorney asks whether he may properly continue his representation of Mrs. X.

Mr. X's consultation with the inquiring attorney created an attorney-client relationship. The fact that he had an attorney-client relationship with Mr. X activates the pertinent provisions of Rule 1.9.

Rule 1.9, entitled "Conflict of Interest - Former Client" provides, in pertinent part:

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;

In advisory opinion 89-7, we took the position that even though the inquiring attorney did not believe that he had learned anything from a former client which was pertinent to his representation of a present client's adverse interests, the attorney could not represent the present client's position absent the express consent after consultation of both the former client and the present client. We cited Putnam Resources, Limited Partnership v. Sammartino Inc., et al, C.A. No. 87-0414B, Report and Recommendation, (D.R.I. January 13, 1989):

The First Circuit in Kevlik v. Goldstein, 724 F.2d 844 (1st Cir. 1984), citing with approval Analytica, Inc. v. NPD Research, Inc., 708 F.2d 1263, 1266 (7th Cir. 1983) has recognized that a substantial relation is found where ". . . a lawyer could have obtained confidential information in the first representation that would have been relevant in the second." Where this showing can be made, the court will assume that during the course of the former representation confidences were disclosed to the attorney bearing on the subject matter of the representation. (citations omitted) (Emphasis supplied). Digest of opinion 89-7, issued May 4, 1989.

In the absence of Mr. X's express consent after consultation, then, Rule 1.9(a) would clearly bar the inquiring attorney from representing Mrs. X. The inquiring attorney states, however, that in August of 1989 Mr. X consented to his continued representation of Mrs. X and that he relied on this consent.

The purpose of Rule 1.9 is to protect client confidences made within the scope of a past attorney-client relationship and to insure complete loyalty to the client. See I. G. Hazard the Law of Lawyering 174.1. The rule is not intended to enable a former client to deprive a present client of the services of counsel when it becomes convenient or advantageous. See I G. Hazard The Law of Lawyering 180. Thus, if Mr. X, as former client, consents after consultation to the inquiring attorney's representation of Mrs. X, and he continues to represent Mrs. X, relying on that consent, Mr. X would not ordinarily be permitted to withdraw his consent three weeks later and interrupt the inquiring attorney's relationship with his client.

A former client's consent must be informed consent, however, and informed consent requires full disclosure. See, e.g., New Jersey Advisory Committee on Professional Ethics Opinion 373. "Full disclosure" is not an illusory concept. It involves a reasonable effort to expose present problems and to anticipate future perils. Full disclosure is not a set of conclusory statements but a recitation of specific details and an explanation of foreseeable consequences. DeBott v. Parker, 560 A.2d 1323 at 1329 (1988).

The Panel cannot determine whether Mr. X had the benefit of the full disclosure necessary to make his consent valid under Rule 1.9. The extent or adequacy of disclosure is a factual determination; we believe contested fact situations are better handled in an adversarial proceeding. See, e.g. digest of advisory opinion 89-4, issued February 21, 1989. We must decline to take a position as to whether Mr. X consented, whether his consent was valid and whether he is bound by that consent. The Panel therefore declines to offer the inquiring attorney any protection.

Ethics Advisory Panel advice is protective in nature. There is no requirement that an attorney abide by a Panel opinion, but if he or she does, he or she is fully protected from any charge of impropriety.