I defended a client in a DUI case that ended in a plea. Can I now represent the tavern in the related civil suit arising from the same facts?

Plain-English summary

The inquiring attorney represented a criminal defendant in a matter involving allegations of driving under the influence of alcohol and reckless driving resulting in death; the defendant accepted a plea bargain prior to trial. A civil complaint was then filed against the criminal defendant and Tavern A, based on the same facts as the criminal matter. The defendant has not retained the attorney to represent him or her in the civil matter. The attorney asked whether he or she may represent Tavern A in the civil action.

The opinion applies Rule 1.9, which bars a lawyer who formerly represented a client from (a) representing another person in the same or a substantially related matter in which that person's interests are materially adverse to the former client's absent consent after consultation, and (b) using information relating to the representation to the former client's disadvantage except as Rule 1.6 or Rule 3.3 permits or when the information has become generally known. The opinion explains that the propriety of subsequent representation depends on whether the former and present matters are substantially related, so that confidences obtained in the first representation may not be used to the former client's disadvantage in the second.

The opinion finds a substantial relationship exists between the past representation of the defendant and the representation of Tavern A. It concludes that to undertake representation of Tavern A the attorney must obtain the consent of the criminal defendant under subsection (a), and notes that under subsection (b) confidential information may not be used to a former client's disadvantage even after the client-lawyer relationship ends.

In practice

Under this opinion, the DUI defense and the tavern's civil defense are treated as substantially related because they arise from the same facts. That triggers Rule 1.9(a), which the opinion resolves by requiring the former client's (the criminal defendant's) consent before the attorney may represent Tavern A. The opinion separately applies Rule 1.9(b) to bar use of the former client's confidential information to that client's disadvantage, a duty it notes survives termination of the relationship.

Common questions

Q: Can the DUI defense lawyer represent the tavern in the related civil suit?

A: Only with consent. The opinion concludes that because the matters are substantially related, the attorney must obtain the criminal defendant's consent under Rule 1.9(a) to represent Tavern A.

Q: Are the criminal case and the civil suit "substantially related"?

A: Yes. The opinion finds a substantial relationship exists between the past representation of the defendant and the representation of Tavern A, as the civil suit is based on the same facts.

Q: Does the duty to protect the former client's confidences end when the case ends?

A: No. The opinion notes that under Rule 1.9(b) confidential information may not be used to a former client's disadvantage even after termination of the client-lawyer relationship.

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 adverse representation in the same or a substantially related matter absent consent; Rule 1.9(b) bars using information relating to the former representation to the former client's disadvantage except as Rule 1.6 or Rule 3.3 permits or when the information is generally known.

Citations and references

Rules of Professional Conduct:

• MR 1.9 / RI RPC 1.9(a) (conflict of interest: former client; substantially related matter and consent)
• MR 1.9 / RI RPC 1.9(b) (no use of former-client information to that client's disadvantage)

See also

• RI EAP Opinion 93-68: representing a spouse against a former divorce client under 1.9
• RI EAP Opinion 93-49: impeaching a former-client victim with public-record information under 1.9

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%2093-72.pdf

Original opinion text

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

(FINAL)
ETHICS ADVISORY PANEL
OPINION #93-72, REQUEST #411
Issued September 14, 1993

The inquiring attorney represented a criminal defendant in a criminal matter involving allegations of driving under the influence of alcohol and reckless driving resulting in death. The criminal defendant accepted a plea bargain prior to trial. Subsequently, a civil complaint was filed against the criminal defendant and Tavern A. The civil suit is based on the same facts as the criminal matter and the criminal defendant has not retained the inquiring attorney to represent him/her on the civil matter. The inquiring attorney asks whether he/she may represent Tavern A in the civil action.

Rule 1.9 entitled "Conflict of Interest: Former Client" 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.

Under this Rule, the propriety of subsequent representation depends on whether the former and present matters are substantially related, so that confidences obtained in the first representation may not be used to the disadvantage of the former client during the representation of the present one.

The Panel believes that under these facts, a substantial relationship does exist between the past representation of the defendant and Tavern A. In order for the inquiring attorney to undertake representation of Tavern A, it will therefore be necessary for him/her to obtain the consent of the criminal defendant pursuant to subsection (a). The Panel further notes that under subsection (b), confidential information may not be used to a former client's disadvantage even after termination of the client-lawyer relationship.