I represent a therapist and several of the therapist's patients suing a doctor who secretly taped the sessions. If the therapist is compelled to reveal the patients' privileged information, must I withdraw from the patients?

Plain-English summary

The inquiring attorney represented a therapist and several of the therapist's patients. The therapist rented office space from a doctor, who placed an electronic listening device in the therapist's office and tape recorded patient sessions. The doctor's wife, herself a patient, discovered the tapes and gave them to the therapist, who notified the patients. The therapist and five patients then sued the doctor. The attorney had explained a potential conflict in representing both the therapist and the patients, but the five patients did not seek individual counsel. Because the therapist could be ordered by the court to reveal privileged information about the patients, and the patients were upset at that prospect, the attorney asked whether he should withdraw from the patients and help them obtain new counsel if the therapist is compelled to testify.

The Panel agreed the attorney should withdraw from representing the patients, citing the Comments to Rule 1.7 that a lawyer should not represent a client unless it can be done competently, promptly, without improper conflict, and to completion. At the point of withdrawal, the patients become former clients and Rule 1.9 governs.

Applying Rule 1.9, the Panel concluded that the attorney may continue to represent the therapist only if the patients consent after consultation to that representation. The attorney must also comply with the confidentiality principles of Rule 1.6 and may not use information obtained in the former representation of the patients to their disadvantage.

Currency note

This opinion was issued in 1994 (Opinion 94-22, issued March 23, 1994), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.7, 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 the conflict and confidentiality rules. 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 Treat this page as historical context, not current guidance.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: When co-clients' interests diverge, which one can the lawyer keep?

A: Here, the Panel had the attorney withdraw from the patients and allowed continued representation of the therapist only with the patients' consent after consultation.

Q: Once the lawyer withdraws from the patients, what rule governs?

A: Rule 1.9. The Panel stated that at withdrawal the patients become former clients, so the former-client rule controls the continued representation of the therapist.

Q: What continuing duty is owed to the former patient clients?

A: Under Rule 1.6 and Rule 1.9(b), the attorney may not use information obtained in the former representation to the patients' disadvantage.

Background and rules framework

The opinion interprets Rhode Island Rules of Professional Conduct 1.7 (conflict of interest: general rule), 1.9 (duties to former clients), and 1.6 (confidentiality of information), the state analogs of the corresponding Model Rules. The Rule 1.7 Comments framed the decision to withdraw; once the patients became former clients, Rule 1.9(a) required their consent for the attorney to continue against or in a matter substantially related to their interests, and Rule 1.9(b) and Rule 1.6 preserved confidentiality.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / RI RPC 1.7 (conflict of interest: general rule; Comments on declining representation with an improper conflict)
• MR 1.9 / RI RPC 1.9(a), (b) (duties to former clients; consent and confidentiality)
• MR 1.6 (confidentiality of information)

See also

• RI EAP Opinion 91-23: cannot represent co-defendants once evidence exculpates one under Rule 1.7
• RI EAP Opinion 94-16: when informal contacts make the adverse party 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%2094-22.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 #94-22 REQUEST #477
Issued March 23, 1994

The inquiring attorney represents a therapist and several of his/her patients. The therapist rented office space from a doctor, who placed an electronic listening device in the therapist's office and tape recorded patient sessions. The doctor's wife, a patient, discovered the tapes and provided them to the therapist, who then notified the patients. The therapist and five patients brought suit against the doctor.

The inquiring attorney explained to the patients that there may be a potential conflict with regard to the representation of both therapist and patient. The five patients did not seek individual counsel. The attorney explains that the therapist may be ordered by the court to reveal privileged information regarding the patients. The patients are upset that this may occur. The attorney asks if the therapist is compelled to testify, should he/she withdraw and help the patients obtain new counsel.

The Panel agrees that the inquiring attorney should withdraw from representing the patients in this matter. A lawyer should not represent a client "unless it can be performed competently, promptly, without improper conflict of interest and to completion." See, Comments to Rule 1.7. At the point of withdrawal, the patients become the former clients of the inquiring attorney and Rule 1.9 governs this inquiry.

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 upon the facts as presented, the Panel concludes that the inquiring attorney may continue to represent the therapist in conformity with Rule 1.9, but only if the patients consent after consultation to the attorney's representation of the therapist. In addition, the inquiring attorney must comply with the confidentiality principles of Rule 1.6 and may not use information that was obtained in the former representation of the patients to the disadvantage of the patients.