I prepared a living will for a husband and an estate package for his wife. Now the wife wants to amend her trust to cut out his daughter and not tell him. Can I do it under Rule 1.9?

Plain-English summary

The inquiring attorney met with Mrs. X regarding estate planning, and her husband attended the meeting. The attorney recommended that Mrs. X have a living will, and Mr. X decided the attorney should prepare a living will for him as well. Mrs. X received an entire "estate package," while Mr. X received only a living will prepared by the attorney. Mrs. X later contacted the attorney to amend her trust to eliminate a gift to Mr. X's daughter from his first marriage, and she did not want Mr. X to know of the modification.

The panel analyzed the question under Rule 1.9 (Conflict of Interest: Former Client), which bars a lawyer from representing another person in the same or a substantially related matter in which that person's interests are materially adverse to a former client absent consent, and from using information from the former representation to the former client's disadvantage.

The panel framed the issue as whether preparing the living will for Mr. X was the same as or substantially related to Mrs. X's estate amendment, with her interests materially adverse to his. The panel concluded that amending Mrs. X's estate is adverse to the beneficiary (Mr. X's daughter), not to Mr. X, so the attorney may represent Mrs. X in the matter without violating Rule 1.9.

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 Treat this page as historical context, not current guidance.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: Was the husband a former client here?

A: The panel treated the living will prepared for Mr. X as a prior representation and analyzed the question under Rule 1.9's former-client framework.

Q: Why wasn't amending the wife's trust a conflict with the husband?

A: The panel concluded that the amendment was adverse to the beneficiary who would lose the gift (Mr. X's daughter), not to Mr. X himself, so his interests were not materially adverse in a substantially related matter.

Q: Did the wife's wish to keep the change secret from the husband change the result?

A: The panel did not treat the secrecy as controlling; it resolved the inquiry on whether the matters were substantially related and whose interests were adverse, concluding the representation did not violate Rule 1.9.

Background and rules framework

The opinion applies Rule 1.9 (Conflict of Interest: Former Client), corresponding to Model Rule 1.9. The panel quoted the rule's bar on representation in the same or a substantially related matter adverse to a former client and on using a former client's information to that client's disadvantage. The analysis turned on identifying whose interests the estate amendment was adverse to: the panel found it adverse to the beneficiary, not to the former living-will client.

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. 95-42: Adverse to a Former Will Client
• RI EAP Op. 95-50: Suing a Former Criminal-Case Client
• RI EAP Op. 95-49: Divorce Against a Former Joint 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%2095-58.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 95-58, - REQUEST # 635
ISSUED - DECEMBER 14, 1995

FACTS:

The inquiring attorney met with Mrs. X regarding estate planning. Her husband also attended this meeting. The inquiring attorney recommended that Mrs. X should have a living will and Mr. X decided that the inquiring attorney should prepared a living will for him as well. Mrs. X received an entire "estate package" while Mr. X received a living will prepared by the inquiring attorney. Mrs. X recently contacted the inquiring attorney to amend her trust which would eliminate a gift to Mr. X's daughter by his first marriage and does not want him to know of this modification.

ISSUE PRESENTED:

The inquiring attorney asks whether he/she may represent Mrs. X in amending her estate planning without violating Rule 1.9.

OPINION:
Yes

REASONING:

The Panel believes that the inquiring attorney's representation of Mrs. X in this matter would not propose a conflict of interest under Rule 1.9, which states in part:

Rule 1.9. "Conflict of Interest: Former Client." - 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.

The issue presented is whether or not the preparation of a living will for Mr. X is a same or substantially related matter in which Mrs. X's interests are materially adverse to Mr. X's interests. The amending of Mrs. X's estate is adverse to the beneficiary and not Mr. X therefore the inquiring attorney may represent Mrs. X in this matter without violating Rule 1.9.