The town solicitor and manager asked me to represent the municipality in a Superior Court lawsuit, but I already represent private clients in matters before the town's zoning and planning boards. Is that a conflict?

Plain-English summary

The inquiring attorney, in private practice, represented clients in matters before a municipality's zoning and planning boards. The municipality's solicitor and manager asked the attorney to represent the municipality in pending Superior Court litigation in which a property owner alleged the municipality had unlawfully prohibited development of the owner's property.

The panel quoted Rule 1.7(a) and (b) in full, then applied its own prior Opinion 90-36 (1990), which held that Rule 1.7 precluded a part-time city solicitor from representing a private client with interests adverse to the city, because a client who is a party to a city zoning board action occupies a position adverse to the city.

Applying that same reasoning, the panel found the inquiring attorney's existing zoning and planning board clients occupy a position adverse to the municipality, so representing the municipality in the pending lawsuit would create a Rule 1.7 conflict. The panel advised the attorney to decline the municipal representation unless, after consultation, both the municipality and the private clients with pending zoning or planning board matters consented.

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion and consistent with the panel's own Opinion 90-36, a private attorney's clients who are parties before a municipality's zoning or planning board occupy a position adverse to that municipality for Rule 1.7 purposes, regardless of whether the new representation (here, unrelated Superior Court litigation) touches the same zoning or planning matters. Consent from both the municipality and the affected private clients, after consultation, is the opinion's path to clearing the conflict.

Common questions

Q: I represent private clients before my town's zoning or planning board. Can the town later hire me for an unrelated lawsuit?

A: Only with consent from both the town and the private clients. The panel held those clients occupy a position adverse to the town under Rule 1.7, creating a conflict even though the new matter is unrelated litigation.

Q: Does the conflict exist even if the lawsuit has nothing to do with the specific zoning or planning matters I'm handling?

A: Yes, per this opinion. The panel's analysis rested on the clients' adverse position relative to the municipality generally, not on factual overlap between the zoning matters and the litigation.

Q: What resolves the conflict if I still want to take the municipal representation?

A: The panel required consultation and consent from both the municipality and the private clients who have matters before the zoning or planning board before the attorney could proceed.

Background and rules framework

The opinion applies Rule 1.7(a), (b) (Conflict of Interest: General Rule), the Model Rule counterpart of the same number, quoted in full. It relies on the panel's own Opinion 90-36 (1990) for the proposition that a client who is a party to a municipal zoning board action occupies a position adverse to the municipality.

Citations and references

Rules of Professional Conduct:

• 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 Panel Op. 90-36 (1990): a part-time city solicitor could not represent a private client adverse to the city; zoning board parties occupy a position adverse to the city

See also

• ISBA Ethics Op. 12-13: Representing a Municipality in a Non-Adjudicative Zoning Matter
• ISBA Ethics Op. 12-12: A Partner's Proceeding Against the Firm's Government Client
• RI EAP Op. 2005-09: Election to City Council Does Not Per Se Bar Representing Clients Before the City's Planning and Zoning Boards
• RI EAP Op. 2007-03: Municipal Special Counsel May Not Represent Private Clients Before the Same Municipality's Zoning Board or Town Council Absent Consent

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%202003-06.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. 2003-06 Request No. 867
                        Issued September 11, 2003

Facts:

    The inquiring attorney, a lawyer in private practice, represents clients in matters that are

before a municipality’s zoning and planning boards. The solicitor and the manager of the
municipality have asked the inquiring attorney to represent the municipality in a lawsuit
pending in Superior Court. The municipality is a named party in the case in which the owner of
real estate located in the municipality alleges that the municipality has prohibited him/her from
developing his/her property.

Issue Presented:

     Will the inquiring attorney’s representation of the municipality in the pending

litigation constitute a conflict of interest?

Opinion:

   Yes. The inquiring attorney’s representation of the municipality in the pending

lawsuit would constitute a conflict of interest under Rule 1.7. The inquiring attorney
may not represent the municipality unless he/she obtains the consent of the
municipality and of those clients who are parties before the municipality’s zoning and
planning boards.

Reasoning:

  Rule 1.7 of the Rules of Professional Conduct entitled “Conflict of Interest:

General Rule” states:

           (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

2003-06
Page 2

                 (2) each client consents after
                 consultation.

           (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.
                 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.

    In Rhode Island Supreme Court Ethics Advisory Panel Op. 90-36 (1990), the

Panel stated that Rule 1.7 precluded a part-time city solicitor from representing a
private client who has an interest adverse to the city. The Panel concluded that the
interests of a client who is a party to a city’s zoning board action occupies a position
adverse to the city, and therefore a part-time solicitor could not represent clients
before the city’s zoning board. Id.

    In the instant inquiry, the inquiring attorney currently represents clients who

are parties in matters before the municipality’s zoning board and planning board. The
Panel is of the opinion that those clients occupy a position adverse to the municipality.
As such, the inquiring attorney’s representation of the municipality in the pending
superior court lawsuit constitutes a conflict of interest pursuant to Rule 1.7. The
Panel therefore advises the inquiring attorney to decline the representation of the
municipality, unless, after consultation, he/she obtains the consent of the municipality
and of his/her private clients who have matters before the municipality’s zoning board
or planning board.