I once represented a mother in a domestic case (now closed) and she still owes me fees. I now represent a criminal defendant charged with assaulting her daughter. Is that a conflict under Rule 1.9?

Plain-English summary

The inquiring attorney had represented a mother in a domestic matter that had concluded, and the mother still owed the attorney money for legal services. The attorney now represented a criminal defendant charged with assault upon the mother's daughter. The attorney stated that the substance of the criminal representation in no way related to the substance of the prior matters handled for the mother, and asked whether continuing to represent the defendant presented a conflict of interest based on the prior representation of the mother, who had an outstanding bill.

At the outset, the Panel noted that the mother's outstanding bill was irrelevant to its conflict-of-interest analysis under the Rules of Professional Conduct. It then applied Rule 1.9 (conflict of interest: former client), which barred representing a new client in the same or a substantially related matter materially adverse to a former client absent consent, and barred using information from the prior representation to the former client's disadvantage.

The Panel concluded that the attorney could represent the criminal defendant in conformity with Rule 1.9, because the matters were not the same or substantially related and the defendant's interests were not materially adverse to the mother. It added that the attorney remained obligated to comply with the confidentiality principles of Rule 1.6 and could not use information obtained in the former representation to the former client's disadvantage.

Currency note

This opinion was issued in 1993 (Opinion 93-97, issued December 8, 1993), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 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 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Does a former client's unpaid bill create a conflict of interest?

A: No. The Panel stated at the outset that the outstanding bill was irrelevant to the conflict-of-interest analysis under the Rules of Professional Conduct.

Q: Can a lawyer take a matter adverse to a former client's family member?

A: On these facts, yes. The Panel found no Rule 1.9 conflict because the criminal matter was not the same or substantially related to the prior domestic matter and the defendant's interests were not materially adverse to the mother.

Q: What continuing duty did the attorney still owe the former client?

A: Confidentiality. The Panel said the attorney had to comply with Rule 1.6 and could not use information from the former representation to the former client's disadvantage.

Background and rules framework

The opinion interprets Rhode Island Rules of Professional Conduct 1.9 (duties to former clients) and 1.6 (confidentiality of information), the state analogs of the corresponding Model Rules. Rule 1.9(a) turned on whether the new matter was the same as or substantially related to the former matter and whether interests were materially adverse; Rule 1.9(b) and Rule 1.6 preserved the duty not to use former-client information to that client's disadvantage. The Panel treated the fee dispute as outside the conflict analysis.

Citations and references

Rules of Professional Conduct:

• MR 1.9 / RI RPC 1.9(a), (b) (duties to former clients; substantial-relationship and material-adversity tests)
• MR 1.6 (confidentiality of information; continuing duty to a former client)

See also

• RI EAP Opinion 93-95: a former real estate co-client and an unrelated matter under Rule 1.9
• RI EAP Opinion 93-77: may oppose a party whose witness is a former client under Rule 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%2093-97.pdf

Original opinion text

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

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FINAL

ETHICS ADVISORY PANEL
OPINION #93-97 REQUEST #442
Issued December 8, 1993

The inquiring attorney represented a mother in a domestic matter that has concluded. The mother presently owes the inquiring attorney money for legal services rendered. The inquiring attorney represents a criminal defendant charged with assault upon the daughter of the mother. The inquiring attorney asserts that "the substance of the present matter and [the] representation of the criminal defendant in no way relates to the substance of the matters handled for the mother... in the prior matter." The inquiring attorney asks whether his/her continued representation of the criminal defendant presents a conflict of interest based on his/her prior representation of the mother who has an outstanding bill with the inquiring attorney's office.

At the outset, the Panel notes that the fact that the mother has an outstanding bill with the inquiring attorney's office is irrelevant to the Panel's conflict of interest analysis pursuant to the Rules of Professional Conduct.

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 interest 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.

Based on the facts as presented, the Panel concludes that the inquiring attorney may represent the criminal defendant in conformity with Rule 1.9. The matters of representation are not the same or substantially related and the interests of the defendant are not materially adverse to the mother. The inquiring attorney is, however, obligated to comply with the confidentiality principles of Rule 1.6 and may not use information that was obtained in the former representation to the disadvantage of the former client.