A former joint client is suing my long-time client and wants to depose me. Can I be deposed, does privilege block it, and may I keep representing my client against the former joint client?

Plain-English summary

The attorney had represented client A for some 14 years in all matters, corporate and personal. Client A provided a service to several municipalities under written contracts, and for one municipality performed the services in association with B company as joint venturers, though A and B were unrelated entities and had not formed a partnership. Several years earlier, the attorney had billed both A and B company for legal services in defending a lawsuit, and each paid its share. When the municipal contract ended in 1990, the municipality wanted to contract with A only, leaving A to form its own arrangement with B company; A and B could not agree, and B company sued A and the municipality for breach of contract. B company now wished to depose the attorney and proceed to trial.

On the deposition questions, the panel took the position that the attorney-client privilege, in and of itself, does not prevent an attorney from being deposed. The privilege, contained in Rhode Island Rule of Professional Conduct 1.6, governs the type of information the attorney may disclose at a deposition, and the attorney's testimony must be consistent with the obligations imposed by Rule 1.6, which bars revealing information relating to the representation absent the client's consent after consultation or an implied authorization.

On continued representation, the panel took the position that the propriety of the attorney's continued representation of client A is controlled by Rule 1.9. Because the attorney had previously represented B company jointly with A in the earlier lawsuit, the panel concluded that the attorney cannot continue to represent client A unless the informed consent of B company 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 1.6 and 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 Treat this page as historical context, not current guidance.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: Can I be deposed about my representation of a client?

A: Per the opinion, the attorney-client privilege does not by itself prevent an attorney from being deposed. Rule 1.6 governs the type of information the attorney may disclose, and the testimony must be consistent with Rule 1.6.

Q: Does the attorney-client privilege let me refuse to be deposed at all?

A: No. The panel stated the privilege does not, in and of itself, prevent the deposition; it limits what the attorney may reveal, not whether the attorney can be deposed.

Q: Can I keep representing my long-time client against a company I once jointly represented?

A: Under this opinion, only with consent. The panel found that Rule 1.9 controls and that the attorney cannot continue to represent client A unless B company's informed consent is obtained.

Background and rules framework

The opinion applies Rule 1.6 (Confidentiality of Information) and Rule 1.9 (Conflict of Interest: Former Client), corresponding to Model Rules 1.6 and 1.9. Rule 1.6 bars revealing information relating to the representation absent the client's consent after consultation or an implied authorization, and the panel treated it as governing the scope of the attorney's deposition testimony. Rule 1.9 bars adverse representation in a matter that is the same as or substantially related to a former representation without the former client's consent; because B company had been a former joint client, the panel required B company's informed consent for continued representation of A.

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information)
• MR 1.9 (duties to former clients)
• RI RPC 1.6, RI RPC 1.9

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 91-33: No Conflict When a Former Client May Testify Against a Current 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%2091-36.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 #91-36, Request #12
Issued June 25, 1991

An attorney seeks Panel advice concerning the following three ethical questions:

1) Whether an attorney may be required to submit to a deposition;

2) Whether the attorney-client privilege prevents an attorney from being deposed; and

3) Whether the attorney may properly continue to represent a particular client under the instant circumstances.

The facts are as follows:

The attorney represented client A for some 14 years in all matters, including corporate and personal. Client A provides a service to several municipalities pursuant to written contracts. For one of the municipalities, client A performed the contractual services in association with B company. Client A and B company are unrelated entities who have not formed a partnership. Client A and B company performed these contractual services as joint venturers.

Several years ago, the attorney billed both client A and B company for legal services rendered to them in defending a lawsuit. Client A and B company paid their respective shares of the legal fees.

The contract pursuant to which client A and B company performed municipal services ended in 1990. The municipality declared a desire to contract with client A only, leaving client A to form a separate agreement with B company for the rendering of services to the municipality. Thus, client A was in a position to enter into an agreement with B company, or anyone else, to render the municipal services.

Client A and B company were unable to reach an agreement. B company filed suit against client A and the municipality alleging breach of contract. B company now wishes to depose the attorney and proceed to trial.

The Panel takes the position that the attorney-client privilege, in and of itself, does not prevent an attorney from being deposed. The attorney-client privilege, which is contained in Rhode Island Rule of Professional Conduct 1.6, governs the type of information the attorney may disclose at a deposition. The Panel takes the position that the attorney's testimony at the deposition must be consistent with the obligations imposed by Rule 1.6. Rule 1.6 provides in pertinent part:

(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized to carry out the representation.

Page Two
91-36

The propriety of the attorney's continued representation of client A under the present circumstances is controlled by Rhode Island Rule of Professional Conduct 1.9, which 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;

(b) use information relating to the representation to the disadvantage of the former client...

The Panel is of the opinion that the attorney cannot continue to represent client A unless the informed consent of B company is obtained.