I handled a client's first divorce. Now that client's new spouse wants to hire me for a divorce against my former client. Can I take that case under Rule 1.9?

Plain-English summary

The inquiring attorney had represented Client A in a divorce proceeding against B. After that divorce became final, Client A married C. C later filed for divorce against Client A and wanted to retain the inquiring attorney for the divorce action against Client A. The attorney asked whether he or she could represent C against Client A.

The Panel set out Rule 1.9 ("Conflict of Interest: Former Client"), under which a lawyer who has formerly represented a client may not represent another person in the same or a substantially related matter with materially adverse interests unless the former client consents after consultation, and may not use 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.

Applying Rule 1.9, the Panel opined that the inquiring attorney may not represent C against former Client A unless A consents after consultation. It added that, regardless of A's consent, the attorney may not use information gained in the representation of Client A against B to the disadvantage of Client A.

Currency note

This opinion was issued in 1994 (Opinion 94-55, issued July 27, 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 Rule 1.9. 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 Treat this page as historical context, not current guidance.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 I represent someone in a divorce against a client I represented in an earlier divorce?

A: The Panel opined the attorney may not represent the new spouse against the former client unless the former client consents after consultation, under Rule 1.9(a).

Q: If the former client consents, can I use what I learned in the first divorce?

A: No. The Panel stated that regardless of consent, the attorney may not use information gained in the prior representation to the former client's disadvantage, per Rule 1.9(b).

Q: Why does the earlier divorce matter to the new one?

A: The Panel treated the new divorce as a same or substantially related matter in which the new client's interests are materially adverse to the former client's, triggering Rule 1.9.

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 a substantially related matter absent the former client's consent; Rule 1.9(b) bars using prior-representation information to the former client's disadvantage. The Panel applied both branches to successive divorce representations.

Citations and references

Rules of Professional Conduct:

• MR 1.9 / RI RPC 1.9(a), (b) (conflict of interest: former client; adverse representation and information-use limits)

See also

• RI EAP Opinion 94-53: no continuing duty to a former client's minor child under Rule 1.9
• RI EAP Opinion 94-47: adverse to a former client in a substantially related matter

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%2094-55.pdf

Original opinion text

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

ETHICS ADVISORY PANEL
OPINION #94-55 REQUEST #525
Issued July 27, 1994

The inquiring attorney represented Client A in a divorce proceeding against B. After the divorce was final, Client A married C. Subsequently, C filed for divorce against Client A. C would like to retain the inquiring attorney for a divorce action against Client A. The inquiring attorney asks whether or not he/she may represent C against Client A.

Rule 1.9 entitled "Conflict of Interest: Former Client" states the following: 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.

Pursuant to Rule 1.9, an attorney may not represent a client in a same or substantially related matter where the new client's interests are materially adverse to the interests of the former client unless the former client consents after consultation. Under these facts, the inquiring attorney may not represent C against the former Client, A, unless A consents after consultation. In addition, regardless of A's consent, the attorney may not use information gained in the representation of Client A against B to the disadvantage of Client A.