I represent one client in a civil matter and previously represented another person in an unrelated criminal matter. The former client might testify against my current client. Is that a conflict?

Plain-English summary

The inquiring attorney represented client A in a pending civil matter and had previously represented client B in an unrelated criminal matter. The attorney believed there was a possibility that client B might be called upon to testify against client A in a future criminal proceeding, and asked whether that circumstance gives rise to a conflict of interest.

The panel took the position that Rhode Island Rule of Professional Conduct 1.9 (Conflict of Interest: Former Client) controls. Rule 1.9 bars a lawyer who formerly represented a client from representing another person in the same or a substantially related matter materially adverse to the former client without consent, and from using information relating to the former representation to the former client's disadvantage except as Rule 1.6 or Rule 3.3 would permit or when the information has become generally known.

The panel concluded that these circumstances do not give rise to a conflict of interest, because the reasons for which the attorney was engaged by client A and client B are so unconnected that they do not amount to the same or a related matter.

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 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, 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 Treat this page as historical context, not current guidance.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: Is it a conflict when a former client may testify against my current client?

A: Under this opinion, not on these facts. The panel found no conflict because the civil matter for the current client and the earlier criminal matter for the former client were so unconnected that they were not the same or a related matter.

Q: What rule governs this situation?

A: The panel applied Rule 1.9 (Conflict of Interest: Former Client), which turns on whether the current matter is the same as or substantially related to the former representation.

Q: Would the answer change if the two matters were related?

A: The panel's conclusion rested on the matters being unconnected. It did not opine on a scenario where the matters were the same or substantially related, so this opinion does not resolve that situation.

Background and rules framework

The opinion applies Rule 1.9 (Conflict of Interest: Former Client), corresponding to Model Rule 1.9. The rule bars adverse representation in a matter that is the same as or substantially related to a former representation without the former client's consent, and bars misuse of a former client's information. The panel resolved the inquiry on the "same or substantially related" threshold, finding the two representations unconnected.

Citations and references

Rules of Professional Conduct:

• MR 1.9 (duties to former clients)
• RI RPC 1.9

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 91-30: When a Current Client Implicates a Former Client
• RI EAP Op. 91-31: Lawyer as Witness in a Real Estate 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%2091-33.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 #91-33, Request #154
Issued May 23, 1991

An attorney seeks Panel advice as to whether a conflict of interest arises under circumstances in which a former client may be called upon to testify in a criminal proceeding against a present client. The attorney advises the Panel that he/she represents client A in a pending civil matter. The attorney indicates that he/she represented client B in an unrelated criminal matter. The attorney believes there is a possibility that client B may be called upon to testify against client A in a future criminal proceeding.

The Panel takes the position that this inquiry is governed by Rhode Island Rule of Professional Conduct 1.9, entitled "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 3.3 would permit or require with respect to a client or when the information has become generally known.

The Panel is of the opinion that these circumstances do not give rise to a conflict of interest because the reasons for which the attorney was engaged by client A and client B are so unconnected that they do not amount to the same or a related matter.

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.