A former client, now an adverse witness, objects to my representing a new client at an administrative hearing, claiming the matters are related. What controls?

Plain-English summary

The inquiring attorney was retained by Client A, a public employee, to represent A at an administrative hearing involving complaints by A's subordinates. The attorney was then contacted by a former client, a subordinate of A expected to be a potential adverse witness at the hearing. The former client contends that the attorney's representation of A is substantially related to the attorney's prior representation of the former client and objects to the continued representation; the attorney believes the two representations are not substantially related.

The panel stated that it has before it conflicting representations of fact that it is not in a position to resolve, and directed the attorney to Rule 1.9, which governs conflicts of interest with former clients. If the matters are not substantially related, Rule 1.9(b) controls: a lawyer who formerly represented a client shall not use information relating to the representation to the former client's disadvantage except as Rule 1.6 or 3.3 would permit or require or when the information has become generally known. If the matters are substantially related, Rule 1.9(a) provides that the lawyer shall not represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the former client unless the former client consents after consultation.

Currency note

This opinion was issued in 1992, 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 amended Rule 1.9. 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 Treat this page as historical context, not current guidance.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: Did the panel decide whether the matters were substantially related?

A: Per the opinion, no; the panel had conflicting representations of fact before it and was not in a position to resolve them.

Q: What rule applies if the matters are not substantially related?

A: Per the opinion, Rule 1.9(b), which bars using information relating to the former representation to the former client's disadvantage except as Rule 1.6 or 3.3 permits or when the information is generally known.

Q: What rule applies if the matters are substantially related?

A: Per the opinion, Rule 1.9(a), which bars the adverse representation unless the former client consents after consultation.

Background and rules framework

The opinion applies Rhode Island Rule 1.9 (conflict of interest; former client), corresponding to Model Rule 1.9. The panel framed the outcome as turning on the unresolved factual question whether the current and former representations are substantially related, mapping that question onto Rule 1.9(a) (adverse representation) and Rule 1.9(b) (use of the former client's information).

Citations and references

Rules of Professional Conduct:

• MR 1.9 (duties to former clients)
• RI RPC 1.9(a)-(b)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 92-15: Former-Client Conflict in a Substantially Related Real Estate Matter
• RI EAP Op. 92-19: No 1.9 Conflict If the Matters Are Unrelated, but Get Consent
• RI EAP Op. 92-27: Collecting a Loan Against a Former Client

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%2092-31.pdf

Original opinion text

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

ETHICS ADVISORY PANEL
Opinion #92-31, Request #245
Issued July 23, 1992

An attorney seeks Panel advice as to whether the attorney may represent a client in the following circumstances. The attorney was retained by Client A, a public employee, to represent Client A in connection with an administrative hearing involving complaints by Client A's subordinates. Soon thereafter, the attorney was contacted by a former client, a subordinate of Client A who expected to be a potential adverse witness in the administrative hearing. The former client contends that the attorney's representation of Client A is substantially related to the attorney's representation of the former client. The former client objects to the attorney's continued representation of Client A. The attorney believes that the two representations are not substantially related.

The Panel has before it conflicting representations of fact which it is not in a position to resolve. The Panel directs the attorney's attention to Rule 1.9 of the Rhode Island Rules of Professional Conduct which governs Conflicts of Interest with Former Clients. If the matters are not substantially related then Rule 1.9(b) controls this inquiry. That rule states that "a lawyer who has formerly represented a client in a matter shall not thereafter: 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."

If the matters are substantially related then Rule 1.9(a) states that a lawyer ". . . shall not thereafter 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."