I once jointly represented a husband and wife in a narrow insurance complaint that has ended. Now the husband wants me to represent him in their divorce. Is the wife a former client, and can I take the case?

Plain-English summary

The inquiring attorney had represented Husband and Wife in a letter-complaint filed with the Department of Business Regulation (DBR) against an insurance company over an agent's alleged fraudulent inducement to buy additional policies. The engagement agreement expressly limited the representation to the DBR complaint, and the couple provided only the pertinent life insurance policies, not information about their other assets. After efforts at resolution failed and the DBR closed the matter, the couple elected a policyholder remediation plan established in a federal class action, under which they could obtain free legal representation if dissatisfied; the attorney had no agreement to represent them in that plan and considered the representation ended when the election forms were forwarded. Several months later, Wife retained her own attorney for an uncontested divorce, Husband asked the inquiring attorney to represent him in the divorce, and Wife had disclosed the insurance-policy information on the Family Court's asset form.

The panel concluded there was no conflict and the attorney could represent Husband. Wife was a former client, so Rule 1.9 governed. The scope of the prior representation had been expressly limited to the DBR complaint, the information acquired was limited to the policies and the agent's conduct, and there was no agreement for representation beyond the DBR matter. Because the DBR matter and the divorce were not the same or substantially related, the attorney could represent Husband without Wife's consent, even though the cash value of the policies might be a marital asset. Rule 1.9(b) still barred the attorney from using any relevant confidential information from the prior representation to Wife's disadvantage in the divorce. The panel added that its advice protects the attorney from disciplinary action but does not bind a court, which retains authority to decide the propriety of the representation.

Currency note

This opinion was issued in October 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: When a lawyer jointly represents spouses, is each a former client afterward?

A: The opinion treated the wife as a former client under Rule 1.9 once the joint representation in the limited DBR matter had ended, so the former-client conflict rule governed the later divorce request.

Q: Why wasn't the divorce "substantially related" to the earlier insurance complaint?

A: The opinion found the DBR insurance-fraud complaint and the divorce raised different issues, and the prior representation had been expressly limited to the complaint, so the matters were not substantially related even though the policies' cash value might be a marital asset.

Q: Does the lawyer still owe the former spouse anything in the divorce?

A: Yes. The opinion held that Rule 1.9(b) barred the lawyer from using any relevant confidential information acquired in the prior representation to the wife's disadvantage in the divorce.

Background and rules framework

The opinion applied Rhode Island Rule of Professional Conduct 1.9 (Model Rule 1.9) as originally adopted. 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 except as Rule 1.6 or 3.3 permits or when it has become generally known. The panel emphasized the expressly limited scope of the prior representation in finding the "substantially related" element unmet, citing its Opinion 95-49.

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:

• O'Rourke v. Power, No. 95-458 M.P. (R.I. Feb. 26, 1997), a court retains independent authority over the propriety of a representation

Other opinions cited:

• RI EAP Op. 95-49 (1995): former-client status where a prior representation has ended

See also

• RI EAP Op. 98-04: Former custody client, later child-support case, no conflict
• RI EAP Op. 98-05: Suing a former client in an unrelated car accident
• RI EAP Op. 98-13: Representing the buyer against a former-client seller

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%2097-18.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. 97-18, Request No. 725
                                Issued October 9, 1997

Facts:

   The inquiring attorney represented Husband and Wife in a letter-complaint filed with the

Department of Business Regulation (DBR) against an insurance company. The engagement
agreement expressly limited the inquiring attorney's representation of them to the complaint filed
with DBR. The subject matter of the complaint related to alleged fraudulent conduct of the in-
surance company's agent to induce the couple to purchase additional insurance policies.
Husband and Wife provided the inquiring attorney with the life insurance policies which were
pertinent to the complaint. Other information relating to the couple's assets was not relevant to
the complaint and was not disclosed to the inquiring attorney.

    Efforts at resolution failed, and the DBR closed the matter. The couple then elected to

submit their claim to the alternate dispute resolution process of a policyholder remediation plan
that had been established as part of a federal class action lawsuit. Under the plan, if Husband
and Wife are not satisfied with the outcome, they are entitled to have their claim reconsidered
and to have legal representation at no cost. The inquiring attorney has no written or oral agree-
ment with the couple to represent them in the policyholder remediation plan. The inquiring at-
torney states that his/her representation of them terminated when he/she forwarded to them the
election forms for the remediation plan.

    Several months after the inquiring attorney's representation in the DBR matter

terminated, Wife retained another attorney to represent her in an uncontested divorce. Husband
has asked the inquiring attorney to represent him in the divorce action. Wife has filed the Family
Court's Statement of Assets Liabilities Income Expenses (Form DR6A) with the divorce com-
plaint and with a motion for temporary support. The inquiring attorney states that the informa-
tion relating to the insurance policies which he/she had obtained as part of the DBR matter is in-
formation that the Wife is required to disclose, and has disclosed, on the Family Court's Form
DR6A.

Issue Presented:

    Is there a conflict of interest under the Rules of Professional Conduct if the inquiring at-

torney represents Husband?
Final 97-18
Page 2

Opinion:

    There is no conflict of interest and the inquiring attorney may represent Husband in the

divorce action. Wife is a former client, and the divorce action is not the same or substantially re-
lated to the complaint against the insurance company in the DBR matter.

Reasoning:

    The facts as presented support the conclusion that Wife is a former client of the inquiring

attorney and therefore, Rule 1.9 governs this inquiry. See R.I. Sup. Ct. Ethics Advisory Panel
Opinion 95-49 (1995). The scope of the inquiring attorney's representation of Husband and Wife
was expressly limited to the complaint filed with DBR. The information acquired by the inquir-
ing attorney during the course of that representation was similarly limited to information relating
to the policies and to the conduct of the insurance agent who sold the couple the policies.
Husband and Wife did not disclose to the inquiring attorney information about their other assets.
The absence of any agreement between the inquiring attorney and the couple for representation
beyond the DBR matter, together with the availability of legal representation under the policy-
holder remediation plan, further demonstrate that the representation terminated when DBR
closed the matter and Husband and Wife elected to participate in the plan.

   Rule 1.9 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 disadvan-
           tage 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 DBR matter and the divorce action are not the same or substantially related, and

therefore the inquiring attorney may represent Husband in the divorce matter without Wife's con-
sent. Even though the cash value of the insurance policies may be marital assets, the issues ad-
dressed in the couple's claim against the insurance company are not substantially related to the
issues in the divorce action. Finally, Rule 1.9(b) prohibits the inquiring attorney from using
relevant confidential information which he/she may have acquired in the prior representation, if
any, to the Wife's disadvantage in the divorce action.
Final 97-18
Page 3

   The Panel's advice is provided for the benefit of the inquiring attorney for the purpose of

avoiding disciplinary action. It is not binding on a court which has unfettered authority to render

an independent decision on the propriety of the inquiring attorney's representation of Husband.

See O'Rourke v. Power, No. 95-458 M.P. (R.I. Feb. 26, 1997).