I'm a town solicitor and my office is prosecuting two juveniles for a fire that destroyed my neighbors' home. My office has recused itself from that prosecution. Can I represent my neighbors in a related civil suit against the juveniles' families?

Plain-English summary

The inquiring attorney served as town solicitor in the town where he or she lived, and wanted to represent neighbors in a civil action against the families of two juveniles allegedly responsible for a fire that destroyed the neighbors' home. The solicitor's office prosecutes misdemeanors and sometimes assists in prosecuting juveniles, but the inquiring attorney had told the town's police department the office would not represent the town in prosecuting these two juveniles because the case involved the attorney's friends and neighbors, and the office had in fact had no involvement in that prosecution.

The panel first addressed Rule 1.11(a) (Successive Government and Private Employment), which it read as applying equally to concurrent, not just successive, government and private employment, citing its own prior Opinion 96-13. Because the inquiring attorney had no involvement in the juvenile prosecution and the solicitor's office had declined to handle it, Rule 1.11(a) did not bar the proposed civil representation.

The panel then found a potential Rule 1.7 conflict independent of Rule 1.11. The town, through its firefighters and other employees, had participated in the events underlying the civil lawsuit, and facts could surface giving rise to a claim by the neighbors against the town itself, which would make the representation directly adverse to the town under Rule 1.7(a). The panel also expected the town would be asked for documents and testimony in the civil matter and would likely consult its solicitor (the inquiring attorney) before complying, creating a Rule 1.7(b) material-limitation concern running in both directions. The panel concluded the inquiring attorney could take the representation if he or she reasonably believed neither representation would be adversely affected, and if both the town and the private clients consented after consultation and disclosure of all potential conflicts.

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, Rule 1.11's bar on successive government and private employment extends to concurrent employment as well, but recusal from a specific government matter satisfies Rule 1.11 where the attorney had no involvement in it. The opinion further holds that a separate Rule 1.7 conflict can still arise from the government client's broader factual involvement in the private matter, requiring the reasonable-belief finding and dual informed consent Rule 1.7 specifies before the representation may proceed.

Common questions

Q: I'm a government lawyer and my office isn't handling a particular matter. Does that alone clear me to take a related private case?

A: Not necessarily. The panel found Rule 1.11 satisfied by the office's non-involvement, but still identified a separate Rule 1.7 conflict from the government client's factual involvement in the private matter.

Q: Does Rule 1.11's "successive" language mean it only applies after I leave government employment?

A: No, according to this opinion. The panel read Rule 1.11 to apply equally to concurrent government and private employment, citing its own prior Opinion 96-13.

Q: What has to happen before I can take a private case that might touch my government client's interests?

A: Under Rule 1.7 as applied here, the lawyer must reasonably believe neither representation will be adversely affected, and both the government client and the private client must consent after consultation and disclosure of all potential conflicts.

Background and rules framework

The opinion applies Rule 1.11(a) (Successive Government and Private Employment), the Model Rule counterpart of the same number, quoted as barring a lawyer from representing a private client in a matter in which the lawyer participated as a public officer or employee, with screening and notice provisions for other firm lawyers. It also applies Rule 1.7(a) and (b) (Conflict of Interest: General Rule), quoted in full, covering both direct adversity to another client and material limitation by responsibilities to another client or third person.

Citations and references

Rules of Professional Conduct:

• MR 1.11(a) (Successive Government and Private Employment) / RI Rule 1.11(a)
• MR 1.7(a), (b) (Conflict of Interest: General Rule) / RI Rule 1.7(a), (b)

Other opinions cited:

• R.I. Supreme Court Ethics Advisory Opinion 96-13 (1996): Rule 1.11 applies to concurrent, not only successive, government and private employment

See also

• ABA Formal Op. 97-409: Conflicts of Interest, Successive Government and Private Employment
• RI EAP Op. 2001-04: Former Government Lawyer Representing Private Clients Against the Same Agency

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%202003-01.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. 2003-01 Request No. 857
                            Issued March 4, 2003

Facts:

    The inquiring attorney is a town solicitor for the town in which he/she lives.

He/she seeks to represent neighbors in a civil action against the families of two juveniles
who allegedly caused the neighbor’s home to be destroyed by fire. The solicitor’s office
prosecutes misdemeanor cases in the district court, and occasionally prosecutes or assists
in the prosecution of juveniles in the family court. The inquiring attorney notified the
town’s police department that because the case involves his/her friends and neighbors,
the solicitor’s office would not represent the town in the prosecution of the two juveniles.
The inquiring attorney states that the solicitor’s office has had no involvement with the
town’s prosecution of the juveniles.

Issue Presented:

     The inquiring attorney asks whether he/she may represent the private individuals.

Opinion:

    The inquiring attorney, who is a town solicitor, may represent individuals in a

civil action against the families of two juveniles whom the town is prosecuting if the
solicitor’s office does not represent the town in the prosecution of the juveniles, and if in
accordance with Rule 1.7, both the town and the individuals consent after consultation
and disclosure of all potential conflicts.

Reasoning:

   Both Rule 1.11(a) and Rule 1.7 apply to this inquiry. Rule 1.11(a) states as

follows:

     Rule 1.11. Successive government and private employment.
     (a)    Except as law may otherwise expressly permit, a lawyer shall not
            represent a private client in connection with a matter in which the
            lawyer participated as a public officer or employee. No lawyer in
            a firm with which that lawyer is associated may knowingly
            undertake or continue representation in such a matter unless:
     (1)    the disqualified lawyer is screened from any participation in the
            matter and is apportioned no part of the fee therefrom; and

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   (2)      written notice is promptly given to the appropriate government
            agency to enable it to ascertain compliance with the provisions of
            this Rule.

    Although Rule 1.11 is entitled “Successive government and private employment,”

the Panel believes it is equally applicable to concurrent government and private
employment. See R.I. Supreme Court Ethics Advisory Opinion 96-13 (1996). The
inquiring attorney has represented to the Panel that he/she has had no involvement in the
case, and that the solicitor’s office has declined to represent the town in the prosecution
of the juveniles. Therefore, Rule 1.11(a) does not present an impediment to the inquiring
attorney’s proposed representation.

   However, the Panel is of the opinion that a potential conflict of interest exists

pursuant to Rule 1.7.

   Rule 1.7 states:

   Rule 1.7. Conflict of interest: General rule. (a) A lawyer shall not
   represent a client if the representation of that client will be directly adverse
   to another client, unless:
   (1)     the lawyer reasonably believes the representation will not
           adversely affect the relationship with the other client; and
   (2)     each client consents after consultation.
      (b) 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. When representation of
           multiple clients in a single matter is undertaken, the consultation
           shall include explanation of the implications of the common
           representation and the advantages and risks involved.

    The town, through its firefighters and other employees, was a participant in the

subject matter of the civil lawsuit. Facts could surface which could give rise to a claim
by the neighbors against the town. In that instance, the inquiring attorney’s
representation of the neighbors would be directly adverse to the interest of the town, thus
presenting a conflict of interest under Rule 1.7(a). It is likely, too, that the town will be
called upon to provide documents and testimony in the civil matter. Before complying,
the town would likely seek the advice of its solicitor, the inquiring attorney. The Panel
believes that in that instance, the representation of the neighbors may be materially
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limited by the inquiring attorney’s responsibilities to the town, and vice-versa. See Rule
1.7(b).

    The Panel concludes that while the facts of this inquiry suggest a conflict of

interest under Rule 1.7, the inquiring attorney may undertake the representation of the
private clients if (a) he/she reasonably believes that neither representation will be
adversely affected, and (b) both the town and the private clients consent after consultation
and disclosure of all potential conflicts.

    The Panel’s guidance is restricted to interpretations of the Rules of Professional

Conduct and does not extend to issues under the State Ethics Code or any other rules,
regulations or laws that may have bearing on the issue raised by this inquiry.