For years I represented a bank that is now in receivership. A board member wants me to represent him personally in a matter the receiver has brought against the bank. Can I take it?

Plain-English summary

For many years, the inquiring attorney had represented a lending institution on a variety of matters. The institution was now under receivership. One of the company's board members wanted to retain the attorney to represent him personally in a matter commenced by the receiver against the company. The attorney asked whether representing the director would violate the Rules of Professional Conduct.

The Panel applied Rule 1.9 (conflict of interest: former client), noting that the propriety of a subsequent representation depends on whether the former and present matters are substantially related, such that confidences from the first representation may not be used to the disadvantage of the former client in the second.

The Panel concluded that on these facts a substantial relationship exists between the past representation of the lending institution and the board member's matter. To represent the board member, the attorney would need to obtain the consent of the receiver for the lending institution under Rule 1.9(a). The Panel also noted that under Rule 1.9(b), confidential information may not be used to the former client's disadvantage.

Currency note

This opinion was issued in 1994 (Opinion 94-17, issued March 23, 1994), 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 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 Treat this page as historical context, not current guidance.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: Can a lawyer for a company now in receivership represent a director the receiver is suing?

A: Only with consent. The Panel found a substantial relationship between the prior representation of the institution and the director's matter, so under Rule 1.9(a) the attorney must obtain the receiver's consent.

Q: Who gives consent for the former client once the company is in receivership?

A: The receiver. The Panel stated the attorney would need to obtain consent from the receiver for the lending institution.

Q: What limit applies even if consent is obtained?

A: Under Rule 1.9(b), the attorney may not use the former client's confidential information to its disadvantage.

Background and rules framework

The opinion interprets Rhode Island Rule of Professional Conduct 1.9 (duties to former clients), the analog of Model Rule 1.9. Rule 1.9(a) barred a substantially related, materially adverse representation absent the former client's consent; Rule 1.9(b) barred using former-representation information to the former client's disadvantage. The Panel treated the receiver as the party who must consent on behalf of the institution.

Citations and references

Rules of Professional Conduct:

• MR 1.9 / RI RPC 1.9(a), (b) (duties to former clients; substantial-relationship test; use of former-client confidences)
• MR 1.6 (confidentiality of information)

See also

• RI EAP Opinion 94-16: when informal contacts make the adverse party a former client under Rule 1.9
• RI EAP Opinion 94-10: a former will client and a suit against the trust company 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%2094-17.pdf

Original opinion text

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

0646
FINAL

ETHICS ADVISORY PANEL
OPINION #94-17 REQUEST #471
Issued March 23, 1994

For many years, the inquiring attorney represented a lending institution regarding a variety of matters. This institution is currently under receivership. One of the company's board members would like to retain the inquiring attorney to represent him/her personally in a matter commenced by the receiver to this company. The inquiring attorney asks whether the representation of the director would violate 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.

Under the Rule the propriety of subsequent representation depends on whether the former and present matters are substantially related, whereby 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 opines that given these facts, a substantial relationship does exist between the past representation of the lending institution and the Board members. In order for the inquiring attorney to represent a Board member, it will be necessary for him/her to obtain the consent from the receiver for the lending institution pursuant to subsection (a). In addition, the Panel notes that under subsection (b), confidential information may not be used to a former client's disadvantage.