My former firm is suing my current client to collect old legal fees, and I worked at that firm while the fees accrued (though I did none of that work). Can I defend the client in the collection action?

Plain-English summary

A law firm with which the inquiring attorney had previously been associated sought to collect outstanding attorney's fees from an individual who was now the attorney's client. While employed by the former firm, the attorney had represented a corporation in which the client was a shareholder and officer, and other firm lawyers had also represented the corporation. After leaving the firm, the attorney continued to represent the corporation in a pending bankruptcy and also represented the client individually. Some of the fees the firm sought had accrued while the attorney was employed there, but none were attributable to legal services the attorney personally provided. The client claimed he was not personally liable for the fees, which related to services the firm provided to the corporation, and asked the attorney to represent him in the collection action. The attorney had no financial interest in the recovery.

The panel concluded that under Rule 1.7(b) the representation was permitted if the attorney reasonably believed it would not be adversely affected by his own interests or by any responsibilities he might have to the former firm. The mere fact of his former employment did not create a material limitation, but his own interests or responsibilities to the firm might; the panel lacked sufficient information to determine whether any such limiting interests existed. The attorney had to disclose any such interests or responsibilities to the client (who already knew of his former employment) and obtain the client's consent.

The panel added that the representation would not be permitted if the attorney was a necessary witness on substantial issues in the dispute or if his testimony would prejudice the client's interest, citing Rule 3.7 and a Nassau County opinion. It cautioned that the attorney had a continuing duty of confidentiality regarding information relating to the former firm's clients, and limited its opinion to the Rules, not substantive issues of privilege and disqualification.

Currency note

This opinion was issued in March 1998, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.7 and 3.7 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 defend a client against a fee-collection suit by the lawyer's own former firm?

A: On these facts, yes, under Rule 1.7(b). The opinion permitted it if the lawyer reasonably believed the representation would not be adversely affected by his own interests or his responsibilities to the former firm, after disclosure and the client's consent.

Q: Does having worked at the firm during the relevant period automatically disqualify the lawyer?

A: No. The opinion concluded that the mere fact of former employment did not create a material limitation, though the lawyer's own interests or responsibilities to the firm might, which is why disclosure and consent were required.

Q: What would make the representation impermissible?

A: The opinion stated it would not be permitted if the lawyer were a necessary witness regarding substantial issues in the dispute, or if his testimony would prejudice the client's interest, invoking Rule 3.7.

Background and rules framework

The opinion applied Rhode Island Rules of Professional Conduct 1.7 (Model Rule 1.7) and 3.7 (Model Rule 3.7) as originally adopted. Rule 1.7(b) bars a representation that may be materially limited by the lawyer's responsibilities to a third person or by the lawyer's own interests, absent a reasonable belief of no adverse effect and the client's consent after consultation. Rule 3.7 bars a lawyer from acting as advocate at a trial in which the lawyer is likely to be a necessary witness. The panel also noted the lawyer's continuing confidentiality duty toward the former firm's clients.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / RI RPC 1.7(b) (material-limitation conflict)
• Model Rule 3.7 / RI RPC 3.7 (lawyer as witness)

Other opinions cited:

• Nassau County Bar Assn. Comm. on Prof. Ethics Op. 91-13 (1991) (lawyer may represent a former client against her old firm in a fee dispute unless she is a witness on substantial issues): cited as persuasive

See also

• RI EAP Op. 98-13: Representing the buyer against a former-client seller
• 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%2098-07.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 98-07 - Request # 739
                              Issued - March 30, 1998

Facts:

    A law firm with which the inquiring attorney was previously associated seeks to collect

outstanding attorneys fees from an individual who is now the inquiring attorney's client. During
the time that the inquiring attorney was employed by the former firm, he/she represented a corporation
in which the client was a shareholder and officer. Other lawyers in the firm also represented
the corporation in several matters. After he/she left the law firm, the inquiring attorney,
pursuant to the client's election, continued to represent the corporation in a pending bankruptcy
proceeding, and also undertook the representation of the client in his/her individual capacity.

    Although some of the outstanding fees that the former firm seeks to collect were generated

when the inquiring attorney was employed by the former law firm, none of the fees are attributable
to legal services that were personally provided by the inquiring attorney. The client
claims that he/she is not personally liable for the outstanding fees which relate to legal services
provided by the former firm to the corporation. The client has requested that the inquiring attorney
represent him/her in the collection action. The inquiring attorney represents that he/she
has no financial interest in the recovery should the former firm prevail in the collection suit.
Issue Presented

    The inquiring attorney asks whether his/her representation of the client in the collection

action is prohibited because of a conflict of interest.

Opinion:

    Pursuant to Rule 1.7(b), the representation is permitted if the inquiring attorney reasonably

believes that the representation will not be adversely affected by the inquiring attorney's own
interests or by any responsibilities he/she may have to the former law firm. The inquiring attorney
must disclose to the client such interests or responsibilities, and obtain the client's consent.

Reasoning:

    The Rules of Professional Conduct impose on lawyers an ethical obligation of loyalty to

clients. The rules that address conflict of interest protect clients and assure an attorney's loyalty.
Thus, the inquiring attorney must consider whether the prior association with the former firm
EAP Op. 98-07
Page 2

will adversely affect his/her representation of the client. The pertinent rule is Rule 1.7(b) which
states:

     (b)    A lawyer shall not represent a client if the representation of that client may be materially

limited by the lawyer's responsibilities to another client or to a third person, or by the
lawyer's own interests, unless:

           (1) the lawyer reasonably believes the representation will
           not be adversely affected; and

           (2) the client consents after consultation ....

     The Panel is of the opinion that the mere fact that the inquiring attorney was employed

by the former firm does not create a material limitation on the representation. However, the inquiring
attorney's own interests or any responsibilities he/she may have to the former firm may
impose limitations on the representation of the client. The Panel lacks sufficient information to
determine whether any such interests or responsibilities exist which would materially limit the
representation.

    The Panel therefore concludes that pursuant to Rule 1.7(b) the inquiring attorney may

represent the client in the collection action provided he/she reasonably believes that the representation
will not be adversely affected by the lawyer's own interests or by any responsibilities the
inquiring attorney may have to the former law firm. Although the client knows that the inquiring
attorney is a former employee of the law firm, the inquiring attorney must disclose to the client
any such interests or responsibilities, and thereafter must obtain the client's consent.

    The Panel is of the opinion, however, that the representation would not be permitted if

the inquiring attorney is a necessary witness regarding substantial issues in the dispute, or if
his/her testimony would prejudice the client's interest. See, Rule 3.7 (lawyer shall not act as advocate
and witness in trial of matter); Nassau County Bar Assoc. Comm. on Prof. Ethics Op. 91-
13 (1991) (lawyer who worked on brother's legal matter while at former firm may later represent
brother in that matter and in fee dispute with former firm unless she is a witness relating to substantial
issues or her testimony prejudices client's interests.) The Panel cautions that the inquiring
attorney has an obligation of confidentiality with respect to information relating to the representation
of clients of the former firm.

     The Panel's opinion speaks only to the Rules of Professional Conduct and does not address

issues of substantive law such as privilege and disqualification which may arise in the instant situation.