I used to represent a police union and some of its members in grievances. Now the ousted police chief wants me to handle his removal appeal, and union members will testify against him. Is that a conflict?

Plain-English summary

The inquiring attorney had represented a fraternal order of police lodge from 1989 to 1995, negotiating a union contract, advising the union (usually through its president), and representing several members in grievances involving potential discipline in which the chief of police was adversely involved, though the parties to those actions were the governmental entity and the employee-members. The chief was later removed from office through a disciplinary action and retained the inquiring attorney to represent him in the appeal. A number of union members would testify for the governmental entity at the appeal, and the union charged a conflict of interest.

The panel concluded there was no conflict precluding the representation. Under Rule 1.9, the question was whether the current matter was the same or substantially related to the prior representation. The attorney had detailed, for each of the fifteen alleged incidents of misconduct, whether union members were listed to testify and whether the incident had been part of the prior union or member representation, and stated that the grievance matters were not part of the chief's misconduct allegations. The panel found a lack of similarity in facts and issues distinguished the matters: none of the fifteen incidents was the same or substantially related to the prior representation, no union members would testify on nine of the incidents, and of the six where members would testify, only one witness was a former client, on an unrelated matter. The attorney could therefore continue to represent the chief, but Rule 1.9(b) prohibited using information from the prior representation to the disadvantage of the union or the members the attorney had represented.

Currency note

This opinion was issued in April 1997, 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. 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 Treat this page as historical context, not current guidance.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 a lawyer represent a client against a former client who will be a witness?

A: The opinion concluded the lawyer could, because the matter in which the one former-client witness would testify was not the same or substantially related to the matter in which the lawyer had previously represented that person.

Q: Why wasn't representing the chief a conflict with the union?

A: The opinion found that none of the fifteen misconduct allegations was the same or substantially related to the lawyer's prior union or member representation, so Rule 1.9(a) did not bar the appeal representation.

Q: What limits still applied to the lawyer?

A: The opinion held that Rule 1.9(b) barred the lawyer from using information relating to the prior representation to the disadvantage of the union or the members previously represented.

Background and rules framework

The opinion applied Rhode Island Rule of Professional Conduct 1.9 (Model Rule 1.9). Rule 1.9(a) bars representing a person in the same or a substantially related matter materially adverse to a former client absent consent, and Rule 1.9(b) bars using information relating to the prior representation to the former client's disadvantage. The panel keyed its conclusion to the lack of factual and issue overlap between the prior representations and the fifteen misconduct allegations, citing the Annotated Model Rules and Tisby v. Buffalo General Hospital.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.9 / RI RPC 1.9(a), 1.9(b) (conflict of interest: former client)

Cases:

• Tisby v. Buffalo Gen. Hosp., 157 F.R.D. 157 (W.D.N.Y. 1994), no disqualification where prior and current matters raised separate issues

Other opinions cited:

• RI EAP Op. 93-87 (1993): representation against former clients permitted where matters are not substantially related
• RI EAP Op. 91-33 (1991): a lawyer may represent a client in a matter in which a former client may testify, where the matters are unrelated

See also

• RI EAP Op. 97-09: North side vs south side, no substantial relationship
• RI EAP Op. 98-11: Suing a former-client union on an unrelated 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%2097-08.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Final

                         RHODE ISLAND SUPREME COURT
                            ETHICS ADVISORY PANEL
                        OPINION NO. 97-08, REQUEST NO. 708
                               Issued April 10, 1997

Facts:

    The inquiring attorney represented a fraternal order of police lodge from 1989 to 1995 at

which time the representation was terminated. During that period, the inquiring attorney negoti-
ated a union contract, and rendered legal advice to the union usually through communications
with the union president. The inquiring attorney also represented several union members in
grievances relating to potential disciplinary actions in which the chief of police was involved ad-
versely, although the parties to the action were the governmental entity and the employees-union
members. The chief of police was recently the subject of a disciplinary action which culminated
in his/her removal from his/her position. The chief has retained the inquiring attorney to repre-
sent him/her in the appeal from the decision to remove him/her from the position. A number of
union members will be witnesses on behalf of the government entity at the proceedings on ap-
peal. The union, through counsel, has charged a conflict of interest.

Issue Presented:

   Does Rule 1.9 of the Rules of Professional Conduct prohibit the inquiring attorney from

representing the chief of police given his/her former representation of the fraternal order of po-
lice
lodge?

Opinion:

    There is no conflict of interest which precludes the inquiring attorney from representing

the police chief. However, the inquiring attorney is prohibited from using information he/she
acquired in his prior representation of either the union or its members to their disadvantage.

Reasoning:

     Rule 1.9 governs this inquiry. It states:

   Rule 1.9. Conflict of Interest: Former Client. - A lawyer who has formerly repre-

sented a client in a matter shall not thereafter:

      (a) represent another person in the same or a substantially related mat-
      ter in which that person's interests are materially adverse to the interests
      of the former client unless the former client consents after consultation;

or
Final
Op. 97-08
Page 2

     (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 inquiring attorney described as part of his/her inquiry the alleged misconduct on

which the governmental entity relied in removing the police chief from office. For each allega-
tion of misconduct the inquiring attorney stated whether union members are listed to testify as
witnesses in the upcoming proceedings, and whether the alleged incident was the subject of the
inquiring attorney's prior representation of the union or of the members he/she represented in
grievances. The inquiring attorney further stated that the grievance matters in which he/she rep-
resented union members are not part of the specific allegations of the chief's misconduct.

     The Panel has reviewed the allegations which constitute the subject matter of the inquir-

ing attorney's representation of the police chief. The Panel is of the opinion that the lack of simi-
larity in the facts and the issues involved in the prior and current representations distinguishes
the matters. See Annotated Model Rules of Professional Conduct, at 154 (3rd ed. 1996); Tisby
v. Buffalo Gen. Hosp., 157 F.R.D. 157 (W.D.N.Y. 1994) (no disqualification of attorney for
nurses's unions in action by nurse against unions for failing to represent her in grievances, even
though attorney previously represented her in disciplinary action; issues separate.) None of the
fifteen incidents of alleged misconduct is the same or substantially related to the matters in
which the inquiring attorney previously represented the union or its members.

     The facts also reveal that no union members will testify in relation to nine of the fifteen

incidents of alleged misconduct. Of the remaining six incidents in which various union members
will testify on behalf of the governmental entity, only one witness is a former client of the inquir-
ing attorney. However, the matter in which he/she is expected to testify is not the same or sub-
stantially related to the matter in which the attorney previously represented him/her.

    The Panel concludes that the inquiring attorney may continue to represent the police chief

because the matters are not the same or substantially related. See R.I. Sup. Ct. Ethics Advisory
Panel Op. 93-87 (1993) (representation against former clients permitted where matters are not
the same or substantially related); R.I. Sup. Ct. Ethics Advisory Panel Op. 91-33 (1991) (lawyer
may represent client in matter in which former client may testify against current client as the
matters are unrelated). However, the inquiring attorney is prohibited from using information re-
lating to the prior representation to the disadvantage of the union or of the union members he/she
represented. See Rule 1.9(b).