My partner handled the real estate closing for a couple who are now divorcing, and another partner once hired the husband's plumbing company. Can our firm represent the wife in the divorce?

Plain-English summary

The inquiring attorney posed three questions arising from a domestic-relations action in which the firm sought to represent the wife. First, whether it would be a conflict for a partner to continue representing the wife where one asset to be distributed is real estate purchased in joint name, the closing for which the partner handled. Second, whether it is a conflict for one partner to represent the wife where another partner, in 1985 before the first divorce action, had hired the husband's corporation to do plumbing work on the partner's house (performed by the husband and paid personally by that partner). Third, whether a partner in the firm may represent the wife in the divorce proceeding.

On the first question, the panel concluded that a conflict of interest would arise unless the partner obtained the husband's informed consent to continue representing the wife, because Rule 1.9 precludes representing another person in the same or a substantially related matter in which that person's interests are materially adverse to a former client's interests without the former client's freely given informed consent.

On the second question, the panel concluded that no conflict arises from the rendition of plumbing services to a partner unless the value of those services becomes relevant in the divorce proceeding.

On the third question, the panel concluded the matter is controlled by Rule 1.10(a), which prevents a partner from representing a client when another firm member's representation is precluded by Rule 1.9. The partner is therefore precluded from representing the wife unless the husband's informed consent is obtained.

Currency note

This opinion was issued in 1991, 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 then in force. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which renumbered and amended several provisions. 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 Treat this page as historical context, not current guidance.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: Does closing a couple's joint real estate conflict a partner out of the divorce?

A: Under this opinion, a conflict arises under Rule 1.9 as to the jointly purchased property unless the husband gives informed consent to the partner representing the wife.

Q: Does a partner's prior personal use of the husband's business create a conflict?

A: The panel concluded no conflict arises from the plumbing services unless the value of those services becomes relevant in the divorce proceeding.

Q: If one partner is conflicted, can another partner take the case?

A: No, not without consent. Under Rule 1.10(a), a partner is precluded where another firm member is precluded by Rule 1.9, so the firm needs the husband's informed consent.

Background and rules framework

The opinion applies Rule 1.9 (Conflict of Interest: Former Client) and Rule 1.10 (Imputed Disqualification), corresponding to Model Rules 1.9 and 1.10. The panel treated the partner who closed the joint real estate as bearing a Rule 1.9 duty to the husband as a former client on that matter, and used Rule 1.10(a) to impute the resulting preclusion to every partner absent the husband's informed consent.

Citations and references

Rules of Professional Conduct:

• MR 1.9 (duties to former clients)
• MR 1.10 (imputation of conflicts of interest)
• RI RPC 1.9
• RI RPC 1.10(a)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 91-19: Related Lawyers on Opposing Sides
• RI EAP Op. 95-49: Divorce Against a Former Joint Client
• RI EAP Op. 95-33: Screening a Former Government Lawyer

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%2091-28.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 #91-28, Request #159
Issued May 23, 1991

An attorney seeks Panel advice concerning three specific questions.

Question One: Would it be a conflict of interest for a partner to continue to represent the wife in a domestic relations action where one of the assets to be distributed is a piece of real estate purchased in joint name for which the partner handled the closing?

Question Two: Is it a conflict of interest for one partner to represent the wife where the other partner, in 1985, prior to the first divorce action, had hired the husband's corporation to do plumbing work on the partner's house which plumbing work was performed by the husband and for which work the plumbing corporation was paid personally by the partner who received the services?

Question Three: May a partner in the law firm represent the wife in the divorce proceeding?

In response to the first question, the Panel takes the position that a conflict of interest would arise unless the partner obtained the informed consent of the husband to continue in the representation of the wife. Rhode Island Rule of Professional Conduct 1.9 precludes an attorney from representing 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 freely gives his/her informed consent.

In response to the second question, the Panel takes the position that no conflict of interest arises from the rendition of plumbing services to a partner in the law firm unless the value of these services becomes relevant in the divorce proceeding.

The final question is controlled by Rule 1.10(a) of the Rhode Island Rules of Professional Conduct. Rule 1.10(a) prevents a partner in a law firm from representing a client when representation by another member of the law firm is precluded by Rule 1.9. The partner, in these circumstances, is precluded from representing the wife in this divorce action unless the husband's informed consent is obtained.

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.