My client sold the disputed house to a buyer with an addendum about the pending suit, then fired me. Do I have a client relationship with the buyer, and can I represent either of them under Rule 1.9?

Plain-English summary

The inquiring attorney represented A, the purchaser of a home, in a suit against B, the developer. During the litigation, A encountered financial problems and sold the home to D. The sales agreement contained an addendum drafted by the real estate broker providing that the house was sold by A to D "as is," that notice of the pending suit was given, and that a successful outcome of the litigation would require repair of the house with no settlement made without D's approval. After the sale, the relationship between A and D dissolved, and A terminated the attorney's services. The attorney asked whether he or she had an attorney-client relationship with D, whether representing either A or D would create a conflict, and whether the attorney must notify D of a motion to withdraw.

The Panel opined that the inquiring attorney has an attorney-client relationship with A only, not D, and therefore owes A all the duties under the Rules of Professional Conduct, including Rule 1.6 (confidentiality). It set out Rule 1.9 ("Conflict of Interest: Former Client"), under which a lawyer may not represent another person in a substantially related matter materially adverse to a former client absent the former client's consent, and Rule 1.16 ("Declining or Terminating Representation"), which requires steps on termination to protect the client's interest, including returning papers and refunding unearned fees.

Applying these rules, the Panel opined that because A is a former client, the attorney must acquire A's consent after consultation before representing D, since the matters are "substantially related." The attorney must also return A's file to A and refund any advance payment of an unearned fee under Rule 1.16(d). D is not entitled to receive notice of the attorney's motion to withdraw from representing A. The Panel additionally cautioned the attorney regarding Rule 4.3 ("Dealing With Unrepresented Person") when dealing with D.

Currency note

This opinion was issued in 1994 (Opinion 94-66, issued September 28, 1994), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.9, 1.6, 1.16, and 4.3 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 these 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: Does a buyer who takes over the disputed property become my client?

A: The Panel concluded no. It opined the attorney had an attorney-client relationship with the seller only, not the successor buyer.

Q: Can I represent the buyer now that the seller has fired me?

A: Only with the former client's consent. Because the seller is a former client and the matters are substantially related, Rule 1.9 requires the seller's consent after consultation before representing the buyer.

Q: Do I have to notify the buyer of my motion to withdraw?

A: The Panel opined that the buyer is not entitled to notice of the attorney's motion to withdraw from representing the seller, and cautioned the attorney about Rule 4.3 in dealing with the unrepresented buyer.

Background and rules framework

The opinion interprets Rhode Island Rules of Professional Conduct 1.9 (conflict of interest: former client), 1.6 (confidentiality), 1.16 (declining or terminating representation), and 4.3 (dealing with an unrepresented person), the analogs of Model Rules 1.9, 1.6, 1.16, and 4.3. The Panel first fixed the identity of the client, then applied the former-client conflict rule and the termination duties, and flagged the unrepresented-person rule for dealings with the non-client buyer.

Citations and references

Rules of Professional Conduct:

• MR 1.9 / RI RPC 1.9 (conflict of interest: former client)
• MR 1.6 / RI RPC 1.6 (confidentiality of information)
• MR 1.16 / RI RPC 1.16(d) (declining or terminating representation; return of file and unearned fee)
• MR 4.3 / RI RPC 4.3 (dealing with an unrepresented person)

See also

• RI EAP Opinion 94-55: no suing a former divorce client under Rule 1.9
• RI EAP Opinion 94-53: no continuing duty to a former client's minor child 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%2094-66.pdf

Original opinion text

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

ETHICS ADVISORY PANEL
OPINION #94-66 REQUEST #537
Issued September 28, 1994

The inquiring attorney seeks Panel advice regarding the following circumstances. The attorney represents A, a purchaser of a home in a suit against B, the developer. During the pendency of litigation, A encounters financial problems and sells the home to D. The sales agreement contains an addendum drafted by the real estate broker which detailed in summary "(1) the house is sold by 'A' to 'D' in an 'as is' condition, (2) notice of the pending suit is given and (3) the successful outcome of litigation would require the repair of the house and no settlement would be made without the approval of 'D.'" Subsequent to the sale of the house, the good relationship between A and D dissolved and A has terminated the attorney's services.

The attorney asks the following: whether he/she has an attorney-client relationship with D; whether or not there is a conflict of interest if the attorney represents either A or D and must the attorney notify D of his motion to withdraw.

The inquiring attorney first asks whether he/she has an attorney-client relationship with A or D. The Panel opines that the inquiring attorney has an attorney-client relationship with A only, and not D. This being the case, the attorney owes "A" all the duties pursuant to the Rules of Professional Conduct including Rule 1.6 entitled "Confidentiality of Information." The following rules also are applicable to this inquiry.

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

Rule 1.16 entitled "Declining or Terminating Representation" states in pertinent part:

(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned.

Rule 1.9 is relevant in this inquiry since A is a former client, the attorney must acquire A's consent after consultation if he/she represents D because the matters are "substantially related." The attorney must also return A's file to A and refund any advance payment of an unearned fee pursuant to Rule 1.16(d). D is not entitled to receive notice regarding the inquiring attorney's motion to withdraw from legally representing A. In addition, the Panel cautions the attorney regarding Rule 4.3 entitled "Dealing With Unrepresented Person" when dealing with D.