I represented a borrower buying property. Can I now represent the seller of that same property in a civil assault suit against the borrower?

Plain-English summary

The inquiring attorney represents a few lending institutions for real estate matters and served as lender's counsel for loan closings and title work; the attorney also served as counsel for a borrower who was purchasing property and obtaining a mortgage loan. The seller of that same property now wishes to engage the inquiring attorney's law firm for various legal matters, and, quite recently, the seller has been the subject of an assault and battery by the borrower. The attorney asked whether a conflict of interest may exist.

The panel said the inquiry is governed by Rule 1.9(a) and (b). It quoted Rule 1.9, under which 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 former client unless the former client consents after consultation, or (b) use information relating to the representation to the former client's disadvantage except as Rules 1.6 or 3.3 permit or require, or when the information has become generally known.

Applying that rule, the panel concluded that the attorney may represent the seller in a civil suit against the borrower because the matters are not substantially related. The panel added that the attorney may not use information relating to the representation of the borrower to the borrower's disadvantage.

In practice

Under this opinion, an attorney who represented a borrower in a real estate purchase is not barred by Rule 1.9 from later representing the property's seller in a civil suit against that borrower, because the real estate purchase and the assault-and-battery civil suit are not substantially related. The opinion holds that the one continuing constraint is Rule 1.9(b): the attorney may not use information relating to the former representation of the borrower to the borrower's disadvantage.

Common questions

Q: Can I sue a former client I represented in a real estate closing?

A: Per the opinion, yes, on these facts; the attorney may represent the seller in a civil suit against the borrower because the matters are not substantially related.

Q: Why weren't the matters substantially related?

A: Per the opinion, the prior representation concerned the borrower's property purchase and mortgage loan, while the new matter is a civil suit arising from an assault and battery; the panel found these not substantially related.

Q: Is there anything I still can't do?

A: Per the opinion, yes; the attorney may not use information relating to the representation of the borrower to the borrower's disadvantage.

Background and rules framework

The opinion applies Rhode Island Rule 1.9 (duties to former clients), corresponding to Model Rule 1.9, and refers to Rules 1.6 (confidentiality) and 3.3 (candor toward the tribunal) as the exceptions built into Rule 1.9(b). The panel applied the substantial-relationship test of Rule 1.9(a), found the prior and proposed matters unrelated, and preserved the Rule 1.9(b) bar on adverse use of the former client's information.

Citations and references

Rules of Professional Conduct:

• MR 1.9 (duties to former clients)
• MR 1.6 (confidentiality of information)
• MR 3.3 (candor toward the tribunal)
• RI RPC 1.9(a), 1.9(b)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 92-68: A Broker's Claim Against a Former-Client Seller
• RI EAP Op. 92-31: Former-Client Objection Turns on the Substantial-Relationship Test
• RI EAP Op. 92-51: A Conflict Arising From a Contract the Lawyer Drafted

Currency note

This opinion was issued in 1992 (Opinion 92-76, issued September 16, 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 renumbered and amended Rule 1.9 (duties to former clients). 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%2092-76.pdf

Original opinion text

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

ETHICS ADVISORY PANEL
Opinion 92-76, Request #304
Issued September 16, 1992

An attorney seeks Panel advice as to whether a conflict of interest may exist. The attorney represents a few lending institutions for real estate matters. The attorney serves as lender's counsel for loan closings and title work and counsel for a borrower who was purchasing property and obtaining a mortgage loan. The seller of the property, which is the same property that the borrower purchased, would like to engage the inquiring attorney's law firm for various legal matters. In addition, quite recently the seller has been the subject of an assault and battery by the borrower.

The Panel believes that this inquiry is governed by Rule 1.9(a) and (b). The Rule states that:

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 believes that the attorney may represent the seller in a civil suit against the borrower because the matters are not substantially related. Moreover, the attorney may not use information relating to the representation of the borrower to the disadvantage of the borrower.