My partners and I left our old firm to start a new one. A new client wants us to sue a client our old firm handled, in an unrelated matter we had no confidential knowledge of. Can our new firm take it under Rules 1.9 and 1.10?

Plain-English summary

The inquiring attorney and his or her law partners recently formed "New Firm" after leaving "Old Firm." Old Firm represented Client Y, and while at Old Firm some of the attorneys now in New Firm had represented Client Y in collection cases and maintained Y's corporate records. Client X, a new client, sought to retain New Firm in a matter against Client Y. The new matter was unrelated to any matter previously handled by New Firm's attorneys for Client Y at Old Firm, Client Y was not represented in this matter by Old Firm, and New Firm's attorneys were not privy to any confidential attorney-client information relating to Client Y. The attorney asked whether New Firm may represent Client X in the new matter against Client Y.

The Panel set out Rule 1.9 ("Conflict of Interest: Former Client") and Rule 1.10(b) ("Imputed Disqualification: General Rule"). Rule 1.10(b) bars a firm from knowingly representing a person in the same or a substantially related matter in which a newly associated lawyer, or that lawyer's prior firm, had represented a materially adverse client about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(b) material to the matter. The Panel quoted the Comment that Rule 1.10(b) disqualifies the firm only when the lawyer involved has actual knowledge of protected information.

Applying these rules, the Panel opined that the matter involving Client X is not the same or substantially related to the matter in which Client Y was involved while the New Firm attorneys were at Old Firm, and that those attorneys did not have actual knowledge of confidential information relating to Client Y. On that basis, New Firm may represent Client X in the new matter against Client Y, but New Firm may not use any information relating to the past representation of Client Y to Client Y's disadvantage.

Currency note

This opinion was issued in 1994 (Opinion 94-74, issued November 15, 1994), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.10, 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 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: Can my new firm take a case against a client my old firm represented?

A: The Panel concluded yes on these facts, because the new matter is unrelated to the old firm's work for that client and the lawyers had no actual knowledge of protected information.

Q: Does having maintained the former client's corporate records disqualify the new firm?

A: On these facts the Panel said no; it credited the stated fact that the attorneys were not privy to confidential attorney-client information relating to Client Y and had no actual knowledge of protected information.

Q: Is there any limit on the new firm's representation?

A: Yes. The Panel opined that New Firm may not use any information relating to the past representation of Client Y to Client Y's disadvantage.

Background and rules framework

The opinion interprets Rhode Island Rules of Professional Conduct 1.10 (imputed disqualification), 1.9 (conflict of interest: former client), and 1.6 (confidentiality), the analogs of Model Rules 1.10, 1.9, and 1.6. Rule 1.10(b) turns on whether a laterally moving lawyer acquired material protected information; without actual knowledge, neither the lawyer nor the new firm is disqualified. The Panel applied that actual-knowledge test to permit the adverse representation.

Citations and references

Rules of Professional Conduct:

• MR 1.10 / RI RPC 1.10(b) (imputed disqualification; actual-knowledge test for lateral lawyers)
• MR 1.9 / RI RPC 1.9 (conflict of interest: former client)
• MR 1.6 / RI RPC 1.6 (confidentiality of information)

See also

• RI EAP Opinion 94-71(A): a lateral lawyer with no actual knowledge is not disqualified under Rule 1.10
• RI EAP Opinion 94-28: firm's former estate client bars representing the insurer under Rules 1.9/1.10

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%2094-74.pdf

Original opinion text

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

ETHICS ADVISORY PANEL
OPINION #94-74 REQUEST #545
Issued November 15, 1994

The inquiring attorney and his/her law partners recently formed "New Firm" and left "Old Firm." Old Firm represented Client Y. While at Old Firm, some of the attorneys in New Firm represented Client Y in collection cases and maintained Y's corporate records. Client X, a new client, seeks to retain New Firm in a matter against Client Y. This new matter is unrelated to any matter previously handled by any of New Firm's attorneys for Client Y at Old Firm, and Client Y is not represented in this matter by Old Firm. New Firm's attorneys were not privy to any confidential attorney-client information relating to Client Y. The inquiring attorney seeks advice as to whether New Firm may represent Client X in this new matter against Client Y.

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.

Rule 1.10 entitled "Imputed Disqualification: General Rule" states in pertinent part:

(b) When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(b) that is material to the matter.

The comments to Rule 1.10 state that paragraph 1.10(b) seeks to disqualify the firm "only when the lawyer involved has actual knowledge of information protected by Rules 1.6 and 1.9(b). Thus, if a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict."

Under the facts provided by the inquiring attorney, the matter involving Client X is not the same or substantially related to the matter in which Client Y was involved while the New Firm attorneys were associated with the Old Firm. New Firm's attorneys did not have actual knowledge of confidential information relating to Client Y. This being the case, New Firm may represent Client X in the new matter against Client Y. New Firm cannot use any information relating to the past representation of Client Y to the disadvantage of Client Y.