I'm defending a criminal case, and the prosecution may call a woman I represented in a 1984 divorce as a witness. Is that a conflict of interest?

Plain-English summary

The inquiring attorney represented a defendant in a criminal matter. The prosecution indicated it might call the victim's grandmother as a witness. The prosecution recently informed the attorney that he had represented the grandmother in 1984 in a domestic-relations matter. The attorney asked whether there was a conflict of interest.

The panel analyzed the question under Rule 1.9 (Conflict of Interest: Former Client), which provides that a lawyer who formerly represented a client shall not represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the former client without the former client's consent, and shall 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.

The panel explained that, to create a conflict between a former client and a present client, the matters must be the same or substantially related. Here, the former client's case was a domestic-relations matter that did not involve the current client. Because the matters were not the same or substantially related, the panel opined that the attorney did not have a conflict of interest in representing the criminal defendant.

Currency note

This opinion was issued in 1995, 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 renumbered and amended several provisions. 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 Treat this page as historical context, not current guidance.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: Is it a conflict to cross-examine a former client the other side calls as a witness?

A: Not necessarily. Under this opinion, Rule 1.9 is triggered only when the current matter is the same as or substantially related to the former representation; the panel found no conflict where the prior matter was an unrelated 1984 divorce.

Q: What makes two matters "substantially related" under Rule 1.9?

A: The opinion applied the rule's threshold that the current and former matters be the same or substantially related. It found that a domestic-relations case that did not involve the current client was not substantially related to a criminal defense.

Q: Did the panel address using the former client's confidential information?

A: The panel quoted Rule 1.9(b), which bars using information from the former representation to that client's disadvantage, but it resolved the inquiry on the ground that the matters were not substantially related.

Background and rules framework

The opinion applies Rule 1.9 (Conflict of Interest: Former Client) of the Rhode Island Rules of Professional Conduct, which corresponds to Model Rule 1.9. As the panel quoted it, subsection (a) bars representation adverse to a former client in the same or a substantially related matter absent consent, and subsection (b) bars using information from the former representation to the former client's disadvantage. The panel's analysis turned on the "same or substantially related" threshold.

Citations and references

Rules of Professional Conduct:

• MR 1.9 (duties to former clients)
• RI RPC 1.9

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 95-20: Representing a Husband Against a Formerly Represented Wife
• RI EAP Op. 2019-02: No Conflict Representing a Buyer Against an Unrelated Former Corporate Client
• RI EAP Op. 2017-05: No Conflict Representing a Client Adverse to an Affiliate of a Former Firm's Client

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%2095-34.pdf

Original opinion text

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

FINAL

ETHICS ADVISORY PANEL
OPINION # 95-34, Request # 601
Issued - July 13, 1995

The inquiring attorney represents a defendant in a criminal matter. The prosecution may call the victim's grandmother as a witness. Just recently, the prosecution informed the inquiring attorney that he/she represented the grandmother in 1984 regarding a domestic relations matter. The inquiring attorney asks whether there is a conflict of interest.

The Rule that is applicable to this inquiry is 1.9 "Conflict of Interest: Former Client" which 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.

According to the Rule, in order to have a conflict of interest between a former client and a present client, the matters must be the same or substantially related. The former client's case was a domestic relations matter not involving the current client.

The Panel opines that because the matters are not the same or substantially related, the inquiring attorney does not have a conflict of interest in representing the criminal defendant.