I used to represent a school committee at a termination hearing. Now the committee is being sued over that termination and two individual members who voted against it want me to represent them personally. Can I, or can someone else at my firm?

Plain-English summary

The inquiring attorney represented a school committee during an individual's termination hearing, assisting with evidentiary rulings and advising the committee in executive session. The committee voted, by majority, to uphold the termination. The individual later won an appeal and sued the school committee and its members, in both their individual and official capacities. The committee retained different counsel for the lawsuit. Two committee members who had not voted to terminate the individual, and whose interests the inquiring attorney described as potentially adverse to the majority, asked the inquiring attorney to represent them individually in the suit.

The panel held the school committee was the inquiring attorney's former client, making Rule 1.9 the governing provision. It quoted Rule 1.9's bar on representing another person in the same or a substantially related matter where that person's interests are materially adverse to the former client's, absent the former client's consent after consultation. The panel found the two dissenting members' interests adverse to the committee as a whole, and found the pending lawsuit "the same or substantially related" to the prior termination hearing. It concluded Rule 1.9 prohibits the inquiring attorney from representing the individual members absent the school committee's consent.

The panel then applied Rule 1.10(a), quoting its bar on a firm's lawyers knowingly representing a client when any one of them practicing alone would be barred by, among other rules, Rule 1.9. Because the inquiring attorney's Rule 1.9 conflict is imputed to the whole firm, the panel advised the inquiring attorney and every other lawyer in the firm to decline the representation.

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, a lawyer's former representation of a governmental body such as a school committee creates a Rule 1.9 conflict against later representing individual constituents of that body, in their individual capacities, in a matter the opinion found the same or substantially related to the earlier representation. The opinion further holds that this conflict is imputed under Rule 1.10 to every lawyer in the former attorney's firm, not just the individual attorney who did the prior work.

Common questions

Q: I used to represent a public body like a school committee or town council. Can I later represent individual members of that body in a related dispute?

A: Not without the body's consent, if the matters are the same or substantially related. The panel held Rule 1.9 bars representing individual constituents whose interests are materially adverse to the former organizational client in a related matter.

Q: Does it matter that the two members I'd be representing voted against the very decision now being challenged?

A: No, on this record. The panel still found their interests adverse to the school committee as a whole and applied Rule 1.9 without distinguishing how any individual member had voted.

Q: If I personally can't take the representation because of a former-client conflict, can another lawyer at my firm take it instead?

A: No. The panel held the conflict is imputed under Rule 1.10(a) to every lawyer in the firm, so the whole firm must decline absent the former client's consent.

Background and rules framework

The opinion applies Rule 1.9 (Conflict of Interest: Former Client), the Model Rule counterpart of the same number, quoting its bar on representing another person in the same or a substantially related matter materially adverse to a former client absent consent after consultation, and its bar on using the former representation's information to the former client's disadvantage. It also applies Rule 1.10(a) (Imputed Disqualification), quoted as barring any lawyer in a firm from representing a client when any one lawyer practicing alone would be barred by Rules 1.7, 1.8(c), 1.9, or 2.2.

Citations and references

Rules of Professional Conduct:

• MR 1.9 (Conflict of Interest: Former Client) / RI Rule 1.9
• MR 1.10(a) (Imputed Disqualification) / RI Rule 1.10(a)

See also

• RI EAP Op. 2001-05: Conflict Barring Representation Against a Former Client Over the Same Property
• RI EAP Op. 2001-08: Substantial Relationship Test for Adjacent-Parcel Representations
• ABA Formal Op. 510: Avoiding Imputation of a Prospective Client's Conflict
• RI EAP Op. 2005-10: Sale of Corporate Assets to a New Owner Creates No Rule 1.9 Conflict Absent Adverse Interests to the 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%202002-03.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. 2002-03 Request No. 838
                               Issued February 14, 2002

FACTS :

    The inquiring attorney represented a school committee during the termination hearing of an

individual. The attorney assisted the committee with evidentiary rulings and provided legal advice
during executive session. By a majority vote, the school committee voted to uphold the
individual’s termination. Following a successful appeal, the individual filed a lawsuit against the
school committee and various persons, including the members of the school committee in their
individual and in their official capacities. The school committee has retained another attorney to
represent it in the lawsuit. Two members of the committee have requested that the inquiring
attorney represent them in their individual capacities. The inquiring attorney states that the two
members did not vote to terminate the individual, and that their interests are potentially adverse to
the majority.

ISSUES PRESEN TED:

   The inquiring attorney asks whether he/she or any other lawyer in his/her law firm may

represent the two individuals.

OPINION:

    The inquiring attorney has a conflict of interest pursuant to Rule 1.9 which is imputed to

other lawyers in his/her firm. Therefore representation of individual committee members by the
inquiring attorney or his/her law firm is prohibited, unless the school committee consents.

REASONING:

    The school committee is the inquiring attorney’s former client. Therefore, Rule 1.9

applies. It 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.

Final 2002-03
Page 2

    The interests of the individual members of the school committee who did not vote in favor

of the termination are adverse to the interests of the school committee as a whole. The pending
lawsuit is “the same or substantially related” to the prior termination hearings. The Panel
concludes that absent consent by the school committee, Rule 1.9 prohibits the inquiring attorney
from representing individual members of the school committee whose interests are or may be
adverse to the school committee.

    Rule 1.10(a) states, “[w]hile 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.” Pursuant to Rule 1.10(a) the inquiring attorney’s
conflict of interest under Rule 1.9 is imputed to other lawyers in the inquiring attorney’s law
firm. Accordingly, the Panel advises the inquiring attorney and other lawyers in his/her firm to
decline the representation.