Years ago I briefly advised a former client on a promissory note. Can I now represent a new client in an unrelated debt-collection matter against that former client?

Plain-English summary

The inquiring attorney was retained by Client B in a matter against Former Client A. While an associate at a former law office, the attorney had previously advised Client A regarding the provisions of a promissory note and performed no other work for Client A; the firm had incorporated Client A's business before the attorney's employment there. The new representation of Client B is a debt-collection matter against Client A that is not related to the promissory note or the incorporation. The attorney raised Rule 1.9, "Conflict of Interest: Former Client."

The opinion quotes Rule 1.9, under which a lawyer who formerly represented a client may not represent another person in the same or a substantially related matter with materially adverse interests absent the former client's consent, and may not use information from the prior representation to the former client's disadvantage. Applying that Rule, the opinion concludes that if the matters are not the same or substantially related and the attorney does not use information from the prior representation to Client A's disadvantage, representing Client B against Client A should not create a conflict of interest. If, however, the matters are substantially related, or the attorney would use information materially adverse to Client A, then the attorney may not represent Client B.

In practice

Under this opinion, the permissibility of the new representation turns on the two Rule 1.9 tests the Panel identifies: whether the debt-collection matter is substantially related to the earlier promissory-note advice, and whether the attorney would use information from the prior representation against the former client. If neither is present, the representation does not create a conflict; if either is, the attorney is disqualified.

Common questions

Q: Can a lawyer take a matter against a former client?

A: Yes, within limits. The opinion concludes that under Rule 1.9 the representation is permissible if the new matter is not substantially related to the prior work and the lawyer does not use information from it against the former client.

Q: What makes the representation impermissible?

A: The opinion says that if the matters are substantially related, or the lawyer would use information materially adverse to the former client, the lawyer may not undertake the representation.

Q: Does brief prior advice on an unrelated note create a conflict here?

A: On these facts the opinion indicates it should not, because the debt-collection matter is not related to the promissory note or the incorporation, subject to the substantial-relationship and information-use tests.

Background and rules framework

The opinion interprets Rhode Island Rule of Professional Conduct 1.9, "Conflict of Interest: Former Client," the analog of Model Rule 1.9. Rule 1.9(a) bars representation in the same or a substantially related matter adverse to a former client absent consent after consultation; Rule 1.9(b) bars adverse use of information relating to the prior representation except as Rules 1.6 or 3.3 permit or when the information is generally known.

Citations and references

Rules of Professional Conduct:

• MR 1.9 / RI RPC 1.9 (conflict of interest: former client)

See also

• RI EAP Opinion 93-23: representing a shareholder adverse to a current or former client-employee under 1.7/1.9
• RI EAP Opinion 2019-02: no conflict representing a buyer against a former corporate client where matters are not related

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%2093-36.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Final
ETHICS ADVISORY PANEL
Opinion #93-36, Request #370
Issued June 2, 1993

The attorney was retained by Client B in a legal matter against Former Client A. The attorney previously advised Client A regarding the provisions of a promissory note while an associate in a former law office. The attorney performed no other work for Client A. The law firm incorporated Client A's business previous to the inquiring attorney's employment with the law firm. The inquiring attorney's representation of Client B regards a debt collection matter against Client A, and is not related to the promissory note or incorporation of Client A. The attorney is concerned with Rule 1.9 "Conflict of Interest: Former Client".

Rule 1.9 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.

If the matters are not the same or "substantially related" and if the attorney does not use information relating to the representation to the disadvantage of the former client, the representation of Client B against Client A should not create a conflict of interest. If however, the matters are "substantially related" or will use information that is materially adverse to the former client, Client A, then in that case the attorney may not represent Client B.