I represented an institution years ago. Can I now represent a client suing that institution on an unrelated matter?

Plain-English summary

The inquiring attorney represented an institution several years ago in various matters, and now seeks to represent a client in an action against the institution. The subject of the proposed representation is unrelated to the matters in which the attorney previously represented the institution. The attorney asked whether representing the client presents a conflict of interest.

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, 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 notes that under Rule 1.9 the propriety of subsequent adverse representation depends on whether the former and present matters are substantially related.

The opinion concludes that no substantial relationship exists between the past representation of the institution and the proposed representation of the client, so the attorney may undertake the representation. It notes, however, that under subsection (b) information obtained during the former representation may not be used to the disadvantage of the former client.

In practice

Under this opinion, a former client that is an institution does not permanently disqualify the lawyer from adverse work against it; the test is substantial relationship. Because the opinion finds the prior matters and the proposed new matter are not substantially related, it permits the new representation, subject to the continuing Rule 1.9(b) limit on using the former client's information to that client's disadvantage.

Common questions

Q: Can I sue an institution I used to represent?

A: On an unrelated matter, yes. The opinion concludes the attorney may undertake the representation because no substantial relationship exists between the past and present matters.

Q: What determines whether the new matter is barred?

A: Whether the former and present matters are substantially related. The opinion finds they are not here.

Q: What limit still applies?

A: Under Rule 1.9(b), the attorney may not use information obtained during the former representation to the disadvantage of the former client.

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 former-representation information to the former client's disadvantage except as Rule 1.6 or Rule 3.3 permits or when generally known.

Citations and references

Rules of Professional Conduct:

• MR 1.9 / RI RPC 1.9(a), (b) (conflict of interest: former client; substantial relationship)

See also

• RI EAP Opinion 93-77: opposing a party whose witness is the lawyer's former client under 1.9
• RI EAP Opinion 93-72: former DUI defendant and representing the tavern in the civil suit 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%2093-87.pdf

Original opinion text

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

(FINAL)
ETHICS ADVISORY PANEL
OPINION #93-87, REQUEST #430
Issued October 19, 1993

The inquiring attorney represented an institution several years ago in various matters. The inquiring attorney now seeks to represent a client in an action against the institution. The subject of the proposed representation is unrelated to the matters in which he/she represented the institution previously. The inquiring attorney asks whether representation of the client presents a conflict of interest.

Rule 1.9 entitled "Conflict of Interest: Former Client" provides as follows: 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 the Rule 1.9, the propriety of subsequent adverse representation depends upon whether the former and the present matters are substantially related.

The Panel believes that under these facts, a substantial relationship does not exist between the past representation of the institution and the proposed representation of the client. Thus, the Panel concludes that the inquiring attorney may undertake the representation. However, the Panel notes that under subsection (b) of the Rule, information obtained during the former representation may not be used to the disadvantage of the former client.