In an earlier case, C paid part of my other clients' fees but I never represented C. Can I now represent A, who is C's co-defendant?

Plain-English summary

The inquiring attorney represents Client A in a matter where B and C are co-defendants. In a previous case, the attorney represented C's co-defendants, D and E, and states that the attorney did not represent C on any occasion. However, in the previous matter, C contributed to D and E's attorney's fees. The attorney asked whether accepting a fee paid by C results in a conflict of interest as to the attorney's representation of A, who is now C's co-defendant.

The panel directed the attorney to Rule 1.8(f) ("Conflict of Interest: Prohibited Transactions") and its comments. Rule 1.8(f) provides that a lawyer shall not accept compensation for representing a client from one other than the client unless (1) the client consents after consultation; (2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and (3) information relating to the representation is protected as required by Rule 1.6. The panel noted that paragraph (f) requires disclosure that the lawyer's services are being paid for by a third party and that such an arrangement must also conform to Rule 1.6.

The panel concluded that the attorney may represent Client A in the present matter. The fact that C may have contributed to an earlier client's fee does not render C a former client. The representation would be governed by Rule 1.9 ("Conflict of Interest: Former Client") only if the inquiring attorney had represented C in the past.

In practice

Under this opinion, a third party's payment of another client's fee in an earlier matter does not, by itself, make that third party a former client for conflict purposes. The opinion places the earlier arrangement under Rule 1.8(f) (third-party compensation with client consent, protected independence, and confidentiality) and reserves Rule 1.9's former-client analysis for situations where the lawyer actually represented the payer.

Common questions

Q: Does someone become my former client just because they helped pay another client's fee?

A: Per the opinion, no; the fact that C contributed to an earlier client's fee does not render C a former client.

Q: What rule governs a third party paying my client's fee?

A: Per the opinion, Rule 1.8(f), which requires the client's consent after consultation, no interference with the lawyer's independent judgment, and protection of information under Rule 1.6.

Q: When would Rule 1.9 apply instead?

A: Per the opinion, the representation would be governed by Rule 1.9 only if the inquiring attorney had represented C in the past.

Background and rules framework

The opinion applies Rhode Island Rule 1.8(f) (third-party compensation), corresponding to Model Rule 1.8(f), with reference to Rule 1.6 (confidentiality) and Rule 1.9 (former clients). The panel read Rule 1.8(f) as the rule for a non-client's payment of fees and read Rule 1.9 as inapplicable because the payer was never the attorney's client.

Citations and references

Rules of Professional Conduct:

• MR 1.8 (conflict of interest: current clients: specific rules), MR 1.9 (duties to former clients), MR 1.6 (confidentiality)
• RI RPC 1.8(f); RI RPC 1.9; RI RPC 1.6; comment to Rule 1.8(f)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 92-59: Representing the Wife After Handling the Husband's Corporations
• RI EAP Op. 92-48: Suing a Former Client on an Unrelated Matter

Currency note

This opinion was issued in 1992 (Opinion 92-65), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.8, 1.9, and 1.6 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 and relettered Rule 1.8 and amended Rules 1.9 and 1.6. 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.

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%2092-65.pdf

Original opinion text

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

ETHICS ADVISORY PANEL
OPINION #92-65, REQUEST #284
Issued September 16, 1992

An attorney seeks Panel advice with regard to the following facts. The attorney represents Client A in a matter where B and C are co-defendants. In a previous case, the attorney represented C's co-defendants, D and E. The attorney states that the attorney did not represent C on any occasion. However, in the previous matter C contributed to C's co-defendants, D and E, for their attorney's fees. The attorney asks whether his accepting a fee paid by C results in a conflict of interest as to his representation of A, who is now C's co-defendant.

The Panel directs the inquiring attorney's attention to Rule 1.8(f) "Conflict of Interest: Prohibited Transactions" and the Comments thereto. The Rule states that:

(f) A lawyer shall not accept compensation for representing a client from one other than the client unless:

(1) the client consents after consultation,

(2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and

(3) information relating to representation of a client is protected as required by Rule 1.6.

Paragraph (f) requires disclosure that the lawyer's services are being paid for by a third party. Such an arrangement must also conform to the requirements of Rule 1.6 concerning conflict of interest. See, Comment to Rule 1.8(f).

The Panel believes that the attorney may represent Client A in the present matter. The fact that C may have contributed to an earlier client's fee does not render C to be a former client. The representation would be governed by Rule 1.9 "Conflict of Interest: Former Client" if the inquiring attorney represented C in the past.