A year ago I represented Marina A in a dock dispute on its south side. Now a long-time client wants permits for a new marina on Marina A's north side, and Marina A objects. Is that a conflict?

Plain-English summary

Marina A and Marina B are contiguous, with Marina B on Marina A's south side. The inquiring attorney had represented Marina A before a state agency in a dispute over Marina B's placement of docks in the waters between them; that limited engagement concluded about a year earlier, and the attorney had never represented Marina A on any other matter. More recently, a long-standing client agreed to buy property on the north side of Marina A and to build a marina there, and retained the attorney to obtain the necessary permits. Marina A maintained an encroaching structure on the north side and objected to the proximity of the proposed pier to its claimed riparian line. The north side and its encroaching structure had never been issues in the prior representation. Opposing counsel charged a conflict, arguing the attorney had acquired information during the Marina A representation that could be adverse to it.

The panel concluded that the matters were not substantially related and the attorney could continue the representation. Under Rule 1.9, the crucial question was whether the prior matter was the same or substantially related to the current one; the scope of a "matter" depends on the facts. The south-side dock dispute was not substantially related to the north-side pier and encroachment dispute, so the representation was permitted without the former client's consent. Rule 1.9(b) adequately addressed opposing counsel's concern, because it prohibited the attorney from using information relating to the Marina A representation to its disadvantage.

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 Treat this page as historical context, not current guidance.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 take a matter adverse to a former client on the same property?

A: The opinion concluded the lawyer could, because the prior south-side dock dispute and the new north-side pier matter were not the same or substantially related, even though both involved Marina A's property.

Q: How does the panel decide whether two matters are "substantially related"?

A: The opinion said the scope of a "matter" under Rule 1.9(a) depends on the facts, and here the difference in location and issues (south-side docks vs north-side pier and encroachment) made the matters unrelated.

Q: What protects the former client's confidences?

A: The opinion pointed to Rule 1.9(b), which barred the lawyer from using information relating to the Marina A representation to its disadvantage in the new matter.

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 treated the "substantially related" inquiry as fact-dependent, citing its Opinion 96-19 and the comment to Rule 1.9.

Citations and references

Rules of Professional Conduct:

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

Other opinions cited:

• RI EAP Op. 96-19 (1996): the "substantially related" test under Rule 1.9

See also

• RI EAP Op. 97-08: Representing a police chief against a former-client union
• RI EAP Op. 98-13: Representing the buyer against a former-client seller
• RI EAP Op. 98-05: Suing a former client in an unrelated car accident

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%2097-09.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. 97-09, REQUEST NO. 709
                              Issued April 10, 1997

Facts:

    Marina A and Marina B are contiguous. Marina B is located on the south side of Marina

A. Marina A objected to the placement of docks by Marina B in waters separating the two ma-
rinas. The inquiring attorney represented Marina A before a state agency on that matter which
concluded about a year ago. The inquiring attorney was retained to represent Marina A for that
matter only, and did not represent Marina A in any other matters. Recently, a long-standing cli-
ent of the inquiring attorney made an agreement to purchase property on the north side of Marina
A and proposes to construct a marina there. The client has retained the inquiring attorney to rep-
resent him/her before the state agency to obtain the necessary permits for the proposed marina.
Marina A maintains a structure on the north side in an area which encroaches the riparian rights
of the owners of the property to be sold, and Marina A objects to the proximity of the proposed
pier to a claimed riparian line of Marina A. The north side of Marina A's property and its en-
croaching structure were not issues and were never discussed during the inquiring attorney's
prior representation of Marina A. Opposing counsel charges a conflict of interest because the in-
quiring attorney acquired information during the representation of Marina A which could be ad-
verse to it in the representation of the inquiring attorney's current client.

Issues Presented:

    Are the disputes between Marina A and Marina B which were limited to the south side of

Marina A substantially related to the disputes between Marina A and the inquiring attorney's cur-
rent client which are limited to the north side of Marina A?

Opinion:

    The matters are not substantially related, and the inquiring attorney may continue to rep-

resent his/her current client on the proposed marina.

Reasoning:

     The Rule pertinent to this inquiry is Rule 1.9 which states:

Final
Op. 97-09
Page 2

           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 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

     (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 crucial issue under Rule 1.9 is whether or not the matter in which an attorney repre-

sented a former client is "the same or substantially related" to the matter in which he/she repre-
sents or proposes to represent a current client. See R.I. Sup. Ct. Ethics Advisory Panel Op. 96-
19 (1996). If the matters are not the same or substantially related, then representation of the cur-
rent client is permitted without the consent of the former client. However, the attorney is prohib-
ited from using information relating to the representation of the former client to the disadvantage
of the former client. See Rule 1.9(b).

     The scope of a "matter" for purposes of Rule 1.9(a) depends on the facts of a particular

situation. See Comment to Rule 1.9. The disputes between Marina A and Marina B were lim-
ited to the placement of docks in waters along the south side of Marina A and are not substan-
tially related to the disputes between Marina A and the inquiring attorney's current client regard-
ing the proposed pier or the encroachment on the north side of Marina A. Therefore, the inquir-
ing attorney may continue to represent his/her current client. Rule 1.9(b) adequately addresses
opposing counsel's concern in that the inquiring attorney is prohibited from using information
relating to the representation of Marina A to its disadvantage.