I left my old firm, where a colleague represents the wife in a pending divorce. The husband now wants to hire me, and I never worked on the wife's file. Am I disqualified?

Plain-English summary

The inquiring attorney had left a former law firm and opened a solo practice. While the attorney was with the firm, another attorney there began representing Wife against Husband in a still-pending family court matter. Husband later disengaged his attorney and retained the inquiring attorney. Wife's attorney challenged the representation, charging a conflict on the ground that the inquiring attorney had had access to Wife's file. The inquiring attorney stated that while employed at the firm the attorney had not worked on Wife's file, had never met her, and had no involvement in her case. The question was whether the attorney could represent Husband.

The panel concluded that if the inquiring attorney had acquired no knowledge of information relating to the wife or to the pending matter while associated with the firm, the attorney was not disqualified. Rule 1.10(b) prohibits a lawyer's new firm from representing a person materially adverse to a client of the lawyer's former firm in the same or a substantially related matter only when the lawyer has information protected by Rules 1.6 and 1.9(b). The panel quoted the comment: paragraphs (b) and (c) disqualify only when the lawyer involved has actual knowledge of protected information, so a lawyer who acquired no such knowledge at the first firm, and later joined another firm, is not disqualified even where the two clients' interests conflict. Because access to protected information is a question of fact and the attorney effectively represented having no such knowledge, Rule 1.10(b) did not disqualify the attorney from representing Husband.

Currency note

This opinion was issued in May 1997, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.10 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 Treat this page as historical context, not current guidance.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: Is a lawyer who changes firms automatically disqualified from opposing a former-firm client?

A: No. The opinion concluded that under Rule 1.10(b) the lawyer is disqualified only if the lawyer actually acquired information protected by Rules 1.6 and 1.9(b) about that client while at the former firm.

Q: Does mere access to a client's file disqualify the departing lawyer?

A: The opinion treated access to protected information as a question of fact and, given the lawyer's representation that the lawyer never worked on the file, met the wife, or gained knowledge of the matter, found no disqualification.

Q: What is the key question under Rule 1.10(b)?

A: The opinion made it the lawyer's actual knowledge of protected information; without such knowledge, neither the lawyer nor the new firm is disqualified even if the clients' interests conflict.

Background and rules framework

The opinion applied Rhode Island Rule of Professional Conduct 1.10(b) (Model Rule 1.10). Rule 1.10(b) bars a lawyer's new firm from representing a person whose interests are materially adverse to a client of the lawyer's former firm, in the same or a substantially related matter, when the lawyer has information protected by Rules 1.6 and 1.9(b). The panel relied on the comment to Rule 1.10, which conditions disqualification on the lawyer's actual knowledge of protected information, and cited its Opinion 94-71(A).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.10 / RI RPC 1.10(b) (former firm; disqualification turns on actual knowledge)
• Model Rules 1.6, 1.9 / RI RPC 1.6, 1.9(b) (confidentiality and former-client information)

Other opinions cited:

• RI EAP Op. 94-71(A): disqualification of a migrating lawyer turns on knowledge of protected information

See also

• RI EAP Op. 97-18: Representing the husband in a divorce against a former joint client
• RI EAP Op. 99-09: An of-counsel affiliation is not a firm for imputation

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%2097-10.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. 97-10, Request No. 711
                                Issued May 8, 1997

Facts:

    The inquiring attorney terminated an association with his/her former law firm and now

has his/her own law practice. While the inquiring attorney was associated with the law firm, an
attorney in the firm commenced representation of Wife as an advocate against Husband in a fam-
ily court matter which is still pending. Husband disengaged the attorney who had been repre-
senting him in the matter, and has retained the inquiring attorney. Wife's attorney challenges the
inquiring attorney's representation of Husband charging a conflict of interest, specifically, that
the inquiring attorney had access to Wife's file. The inquiring attorney states that while em-
ployed at the law firm he did not work on Wife's file, had never met with her, and had no in-
volvement with her case.

Issues Presented:

    May the inquiring attorney represent the husband in a family court matter in which an at-

torney in the inquirer's former law firm undertook the representation of the wife while the in-
quirer was employed by the firm?

Opinion:

    If the inquiring attorney did not acquire knowledge of information relating to the wife or

to the pending matter while he/she was associated with the law firm, he/she is not disqualified
from representing the husband.

Reasoning:

    When a lawyer moves from one law firm to another, Rule 1.10(b) prohibits the lawyer's

new firm from representing a person whose interests are materially adverse to those of a client
represented by the lawyer's former firm when the matters are the same or substantially related
and the lawyer has information protected by Rules 1.6 and 1.9(b).

     The Comments to Rule 1.10 provide:

            Paragraphs (b) and (c) operate 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 ac-
            quired no knowledge of information relating to a particular client

Final # 97-10
Page 2

           of the firm, and that lawyer later joined another firm, neither the
           lawyer individually nor the second firm is disqualified from repre-
           senting another client in the same or a related matter even though
           the interest of the two clients conflict.


    Access to information protected by Rules 1.6 and 1.9(b) is essentially a question of fact.

See Comment to Rule 1.10. The inquiring attorney has effectively represented that he/she has no
knowledge of information relating to the wife or to the pending matter. The Panel therefore con-
cludes that Rule 1.10(b) does not disqualify the inquiring attorney from representing the husband
in the matter. See R.I. Sup. Ct. Ethics Advisory Panel Op. 94-71(A).