Can a lawyer who currently represents a state agency also represent someone in an unrelated matter adverse to that agency?

Plain-English summary

A private attorney who was also an approved attorney for the Alabama Department of Human Resources handled child-protective and termination-of-parental-rights proceedings for the county and state Department. He had been asked to represent an employee of a long-standing client in an administrative hearing contesting a "founded complaint of child abuse" brought by the county Department; that complaint did not involve protective proceedings, the child and family were never his clients, and the matter became a record that could be disseminated to abuse-and-neglect registries. The Department, citing a blanket policy, refused to consent to any conflict. He asked whether, under Rule 1.7, representing the person in that hearing was directly adverse to the Department such that he had a disqualifying conflict, and how the rule applied to his domestic-relations cases in which a court ordered Department involvement.

The Disciplinary Commission concluded he may not represent a client in the founded-child-abuse matter while currently representing the Department in other matters, even unrelated ones. The opinion treated RO-91-23 as dispositive: applying Rule 1.7, a lawyer currently involved in an active case for the Department cannot represent a party adverse to the Department regardless of whether the matters are substantially related, unless the lawyer reasonably believes the representation will not adversely affect the relationship and each client consents. The opinion cited Cinema 5, Ltd. v. Cinerama, Inc. for the principle that taking part in litigation against an existing client is measured against the duty of undivided loyalty rather than the similarity of the matters. Because the Department refused consent under Rule 1.7(a)(2), the representation was barred.

On the domestic-relations question, the opinion explained that the distinguishing aspect is that the Department's court-ordered appearance is more in the nature of a witness than a party, and that Rule 1.7 requires the representation to be "directly" adverse (not indirectly or generally) and uses "will be" rather than "may be," meaning a reasonable probability rather than a remote chance of conflict. The Commission cautioned that Rule 1.7 and RO-91-23 should not be applied mechanically or overbroadly, but in a way that realistically balances the interests of the current client and prospective clients.

Currency note

This opinion was issued in 1991, before the 2002 Ethics 2000 revisions to the ABA Model Rules of Professional Conduct and Alabama's subsequent amendments to its Rules of Professional Conduct. 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, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer take a matter adverse to a state agency he currently represents, if the matters are unrelated?

A: Per the opinion, no. Under Rule 1.7 and RO-91-23, a lawyer currently in an active case for the agency cannot represent a party adverse to it regardless of relation, absent reasonable belief of no adverse effect and consent, which the agency refused.

Q: Does the same conflict arise in domestic-relations cases where a court orders the agency to participate?

A: The opinion distinguished those situations because the agency's appearance is more like a witness than a party, and stressed that Rule 1.7 requires a directly adverse representation with a reasonable probability of conflict, not a remote chance.

Q: How should Rule 1.7 be applied here?

A: The opinion said it should not be applied mechanically or overbroadly, but in a way that realistically balances the interests of the current client and those seeking to become clients.

Background and rules framework

The opinion interprets Rule 1.7 (Model Rule 1.7, conflict of interest involving current clients) of the Alabama Rules of Professional Conduct, following RO-91-23 and the loyalty principle of Cinema 5 for representation adverse to a current client.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / Ala. R. Prof. C. 1.7 (conflict of interest; directly adverse; consent after consultation)

Cases:

• Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384 (2d Cir. 1976), duty of undivided loyalty to a current client

Other opinions cited:

• RO-91-23: a lawyer in an active case for a client may not represent a party adverse to that client absent consent

See also

• AL Ethics Op. 1991-08: a firm may not choose between conflicting present clients
• AL Ethics Op. 1992-21: representing a new client adverse to a current client

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/1991-41/
• Original PDF: https://www.alabar.org/assets/2019/02/RO-91-41.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS OPINION

RO-91-41

QUESTION:

"I have received the enclosed letter from counsel for the Department of Human Resources. I have discussed that opinion with Mr. ______ and with your office. I now request your written opinion in these circumstances.

I am an attorney in private practice and an approved attorney for the State of Alabama Department of Human Resources. To my knowledge, I am one of two approved attorneys in __ County. The _ County Department of Human Resources contacts me, or another approved attorney, when it desires to proceed in juvenile court concerning a dependent child. Virtually all of the cases which I handle for the Department are child protective proceedings in juvenile court. In the past, I have represented the County Department as a special prosecutor and have appeared as counsel for appellee in cases which were appealed after I had represented the Department in the lower court. Recently, I represented the County Department in an administrative hearing concerning the revocation (or, denial of renewal) of a daycare license. I now have active, pending cases in which I am appearing at the request of the County Department of Human Resources in juvenile court, child dependency proceedings. I am now appearing in cases involving termination of parental rights on behalf of both the ___ County Department of Human Resources and the State of Alabama Department of Human Resources.

I have been requested to appear in an administrative hearing, and have initially corresponded with the Department, concerning a founded complaint of child abuse by the ______ County Department of Human Resources against an employee of a long-standing client. The founded complaint does not involve protective proceedings to a child. It becomes simply a matter of record and may be disseminated and entered onto networking registries of child abuse and neglect. Neither the child or her family are now, or have ever been, my clients. Neither the child nor her family have ever been parties in any dependency proceeding in juvenile court, or any other proceeding, in which I have appeared at the request of the Department.

Under the Alabama Rules of Professional Conduct, is my representation of a person in an administrative hearing contesting 'founded complaint of child abuse' directly adverse, as defined under Rule 1.7, to the County Department of Human Resources and the State of Alabama Department of Human Resources such that I have a conflict of interest and cannot represent that person in the administrative hearing?

Upon receipt of the notice letter from counsel for the State Department, I have considered the Rule's alternative which would allow avoidance of this problem. However, I am informed that the commissioner has an arbitrary but blanket policy of refusal to consent to the possibility of a conflict. Therefore, the Department has refused to give its consent under Rule 1.7(a)(2).

In addition, I have been provided a copy of Ethics Opinion RO-91-23. That opinion seems to answer my question if the phrase 'currently involved in an active case for the Department' encompasses appearance at the request of the Department in a dependency proceeding in juvenile court. However, under the same reasoning, is my continued appearance as a private attorney in a domestic relations case where a circuit judge has ordered intervention by the Department, investigation by the Department or other appearance by the Department also prohibited under Rule 1.7 because I am an approved attorney with active cases. The adversarial nature and the loyalty related conflicts addressed in the Comments to Rule 1.7 would seem to apply equally to domestic relations cases where the Department's position is adverse to my domestic relations client. If I have a conflict of interest in a purely administrative hearing unrelated to juvenile dependency cases, then it would seem under the cited opinion that I also have a conflict in domestic relations cases where the Department is involved. Or, do I only have a conflict if the Department's position is adverse to my domestic relations client? Or, do I have a conflict, regardless of the position taken by the Department, due to the supposed confidence and secrets on procedures, strategy and other matters such that the adverse domestic relations party could claim that I should be disqualified?

If Opinion RO-91-23 is so far reaching as to require my withdrawal from any case in which the Department appears or is a party, then my private practice (and presumably the practice of virtually all of the approved attorneys in the State of Alabama) should be severely limited beyond that which I believe to prevail in this state."

ANSWER:

You may not represent a client in a founded complaint of child abuse by the Department of Human Resources while you are currently representing the Department in other matters even though these matters are not related to the founded complaint.

DISCUSSION:

Ethics Opinion RO-91-23, mentioned in your letter, is dispositive of the question. In that opinion, the Disciplinary Commission, applying Rule 1.7 of the Rules of Professional Conduct, held that a lawyer that was currently involved in an active case for the Department could not represent a party in a matter adverse to the Department regardless of whether the matters are substantially related unless the lawyer reasonably believes that the representation will not adversely affect the relationship with the other client and each client consents. In making this decision, the Commission cited with approval Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1386 (2nd Cir. 1976), that in situations where a lawyer takes part in litigation against an existing client, the propriety of the conduct must be measured not so much against the similarities in litigation as against the duty of undivided loyalty which an attorney owes to each of his clients.

You were also concerned in your letter about the application of the rule where you are representing a client in domestic matters and the circuit judge has ordered intervention, investigation or other appearance by the Department. As you point out, the Comment to Rule 1.7 would seem to apply equally to domestic relations cases where the Department's position is adverse to "my domestic relations client." Certainly, Rule 1.7 and the Comment to the rule applies to those situations but the distinguishing aspect is that the Department's appearance is more in the nature of a witness rather than as a party to the litigation. It also should be pointed out that the rule requires that the representation of a client be directly adverse to another client as opposed to indirectly or generally adverse. The rule also has a probability factor using the words "will be directly adverse" as opposed to "may be directly adverse." By using "will" instead of "may" the rule means a reasonable element of probability instead of a remote chance of conflict.

It is the view of the Commission that Rule 1.7 and RO-91-23 should not be applied in a manner that is mechanical or overbroad. Rather, they should be applied in a manner that realistically balances the interests of the client and those individuals that desire to become a client of the affected lawyer.

RWN/vf

10/22/91