My firm's lawyers used to represent Company A on its waste-disposal cleanup cases at other sites. Can we now represent other companies against Company A at a new landfill site without Company A's consent?

Plain-English summary

Lawyers now at the inquiring attorney's firm had, while at a prior firm, represented Company A in three environmental waste-disposal remediation matters at separate sites, all concluded by 1991, and had acquired information about Company A's waste-disposal practices. Later, the Department of Environmental Management sent notice letters to about twenty-five companies, including Companies B and C (current clients of the firm) and Company A, alleging responsibility for remediation at a different landfill. Companies B and C, who had consented to the dual representation, sought the firm's representation in the landfill matter. The attorney asked whether the firm could represent B and C without Company A's consent.

The panel concluded no. Because Company A was a former client of the individual lawyers, Rule 1.9 applied. The panel reasoned that liability for cleanup costs is proportional to each company's share of the waste, so the interests of B and C were materially adverse to Company A. Although the landfill was a different site from the earlier matters, the panel concluded the subject matter was substantially related because both representations involved Company A's waste-disposal practices, about which the lawyers had acquired information.

The panel concluded that the former lawyers' conflict was imputed to the rest of the firm under Rule 1.10, given their actual knowledge of Company A's practices. It concluded the firm could represent Companies B and C in the landfill matter only if it obtained Company A's consent after consultation, and noted that even with consent, the lawyers remained prohibited by Rules 1.9(b) and 1.10(b) from using information from the prior representation to Company A's disadvantage.

Currency note

This opinion was issued in May 1999, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.9 and 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 Treat this page as historical context, not current guidance.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: Were the current clients' interests adverse to the former client?

A: Yes. The opinion reasoned that cleanup liability at the landfill is proportional to each company's share of the waste, so the interests of Companies B and C were materially adverse to Company A.

Q: The prior matters were at different sites. Why were they still substantially related?

A: The opinion concluded the subject matter was substantially related because both the prior and current representations involved Company A's waste-disposal practices, about which the lawyers had acquired information during the earlier work.

Q: How did the conflict reach the whole firm?

A: Under Rule 1.10, the opinion stated, the former lawyers' conflict was imputed to the other lawyers at the firm because those lawyers had actual knowledge of Company A's waste-disposal practices, invoking Rule 1.10(b).

Q: Could the firm proceed with consent?

A: Yes, with Company A's consent after consultation. The opinion added that even with consent, lawyers remained prohibited under Rules 1.9(b) and 1.10(b) from using information from the prior representation to Company A's disadvantage.

Background and rules framework

The opinion applied Rhode Island Rules of Professional Conduct 1.9 (Model Rule 1.9) and 1.10 (Model Rule 1.10) as originally adopted. Rule 1.9 bars a lawyer from representing a person in the same or a substantially related matter materially adverse to a former client absent consent after consultation, and from using information from the prior representation to the former client's disadvantage. Rule 1.10(b) addressed imputation where a lawyer who becomes associated with a firm, or a firm with which the lawyer was associated, had previously represented a client with materially adverse interests, and the lawyer acquired protected material information.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.9 / RI RPC 1.9 (conflict of interest: former client)
• Model Rule 1.10 / RI RPC 1.10(b) (imputed disqualification where lawyers change firms)

See also

• RI EAP Op. 99-14: Former-client conflict in a right-of-way dispute
• RI EAP Op. 2023-13: Lawyer joining a firm adverse to a former client
• ABA Formal Op. 497: Conflicts involving materially adverse interests
• Alabama Op. 1991-42: Suit against a former client

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%2099-12.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. 99-12, Request No. 782
                                  Issued May 13, 1999

Facts:

     The inquiring attorney is seeking the Panel's advice on behalf of his/her law firm. The facts are

as follows. Lawyers who are presently members of the law firm represented Company A while they
were associated with another firm. The lawyers represented Company A in three environmental waste
disposal matters in which state and federal governments were seeking environmental remediation costs
for three separate sites. All the matters concluded by 1991 at which time the lawyers' representation of
Company A also terminated. During the course of the representation, the lawyers acquired information
from Company A regarding, among other things, its waste disposal practices.

     Several months ago, the Department of Environmental Management sent "notice letters" to

about twenty-five companies, alleging that waste generated by the companies was improperly disposed
of at a certain landfill, and that the companies are responsible for environmental remediation at that site.
Company B and Company C, which are current clients of the inquiring attorney's law firm, received
notice letters. Company A also received a notice letter. The landfill is a separate site from the three
sites involved in Company A's former environmental remediation matters. Company B and Company
C seek representation by the inquiring attorney's law firm in the landfill remediation matter. Company B
and Company C have consented to the dual representation by the law firm.

Issue Presented:

    May the law firm represent Company B and Company C in the recent landfill matter without

obtaining the consent of Company A?

Opinion:

    No. Under Rule 1.9, the lawyers who represented Company A have a conflict of interest in the

representation of Company B and Company C. The interests of Company B and Company C are
materially adverse to Company A, and the matters are substantially related. Pursuant to Rule 1.10(b),
the conflict of interest of Company A's previous lawyers is imputed to the other lawyers in the inquiring
attorney's law firm. Therefore lawyers in the firm may only represent Company B and Company C in
the landfill remediation matter if they obtain the consent of Company A after consultation.
Final 99-12
Page 2

Reasoning:

    Company A is a former client of the individual lawyers who represented it while they were

associated with another firm. Therefore Rule 1.9 applies. The rule states:

            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 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
                  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.

     Liability for clean up costs at the landfill is no doubt proportional to the amount of waste

disposal attributed to each company. It appears then that the interests of Company B and Company C
are materially adverse to Company A. A crucial issue under Rule 1.9 is whether or not the matter in
which a lawyer represented a former client is "the same or substantially related" to the matter in which
he/she proposes to represent a current client. While the landfill site is a different site from those three
sites involved in Company A's prior remediation matters, the Panel is of the opinion that the subject
matter of the present and prior representations is substantially related. Both representations involve
issues relating to Company A's waste disposal practices about which the lawyers acquired information
during the prior representation. Because the interests of Company B and Company C are materially
adverse to Company A, and further because the matters are substantially related, the Panel concludes
that Company A's previous lawyers have a conflict of interest in the representation of Company B and
Company C.

    Company A's previous lawyers have actual knowledge about the company's waste disposal

practices and other related information. Therefore, pursuant to Rule 1.10, the conflict of interest of
Company A's previous lawyers is imputed to other lawyers at the firm with which they are now
associated. Rule 1.10 states in pertinent part:
Final 99-12
Page 3

            Rule 1.10. Imputed Disqualification: General Rule. -

                  (a) While lawyers are associated in a firm, none of them
                  shall knowingly represent a client when any one of them
                  practicing alone would be prohibited from doing so by
                  Rules 1.7, 1.8(c), 1.9 or 2.2.

                  (b) When a lawyer becomes associated with a firm, the
                  firm may not knowingly represent a person in the same or
                  a substantially related matter in which that lawyer, or a
                  firm with which the lawyer was associated, had previously
                  represented a client whose interests are materially
                  adverse to that person and about whom the lawyer had
                  acquired information protected by Rules 1.6 and 1.9(b)
                  that is material to the matter.

                                           ***

                  (d) A disqualification prescribed by this rule may be
                  waived by the affected client under the conditions stated
                  in Rule 1.7.

      The Panel concludes that lawyers in the inquiring attorney's law firm may represent Company

B and Company C in the landfill remediation matter provided they obtain the consent of Company A
after consultation. The Panel notes that even with a former client's consent lawyers are prohibited from
using information relating to the prior representation to the disadvantage of the former client. See Rule
1.9(b) and Rule 1.10(b).