I want to represent veterans before the Court of Veterans Claims. My brother-in-law is a supervising attorney on the opposing federal agency's litigation team (though he's promised my cases won't go to his team), and my sister is a staff attorney at the board whose decisions get appealed to that court. Do these family ties create a conflict?

Plain-English summary

The inquiring attorney, a member of a veterans pro bono program, wanted to represent clients before the United States Court of Appeals for Veterans Claims, which reviews decisions of the Board of Veterans Appeals. The attorney's brother-in-law worked in the Appellate Litigation Division of the Department of Veterans Affairs, the agency adversarial to veterans before that court, supervising one of four litigation teams; the attorney was assured his own cases would never be handled by the brother-in-law or that team. Separately, the attorney's sister was a staff attorney with the Board, assisting hearing officers and occasionally serving as one herself.

The panel quoted Rule 1.8(i), which bars representing a client where the lawyer's parent, child, sibling, or spouse represents an adverse party, absent client consent after consultation, and observed the rule's list does not include a sibling's spouse. It concluded Rule 1.8(i) therefore does not prohibit the brother-in-law arrangement. It then turned to Rule 1.7(b), the general conflicts rule, reasoning that a family relationship between attorneys related by marriage who represent opposing parties could still interfere with loyalty and independent judgment and so could materially limit the representation, though it characterized any such conflict as personal to the attorney and not imputed to firm colleagues. Given the assurances that the brother-in-law's team would not handle the attorney's cases, the panel found the attorney could represent veterans before the court.

On the sister, the panel found a Rule 1.7(b) conflict of a different kind: representing a client aggrieved by a decision in which the sister served as hearing officer. The panel held the attorney could still take such a representation if the attorney reasonably believes it will not be adversely affected and the client consents after consultation.

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, Rule 1.8(i)'s per se conflict rule for close relatives representing adverse parties is limited to the relationships it lists (parent, child, sibling, spouse) and does not extend to in-laws, but Rule 1.7(b)'s material-limitation standard can still reach relationships outside that list, including relatives by marriage and, separately, a sibling acting in a quasi-adjudicative role like hearing officer. The opinion treats a Rule 1.7(b) conflict arising from a family relationship as personal to the individual attorney, not imputed to the rest of the firm.

Common questions

Q: My spouse's sibling (my brother- or sister-in-law) represents the opposing side in cases I want to take. Does Rule 1.8(i) automatically bar me?

A: No, according to this opinion. The panel held Rule 1.8(i) lists only parent, child, sibling, or spouse, not in-laws, so it does not automatically apply to relatives by marriage.

Q: Does that mean an in-law relationship never matters for conflicts purposes?

A: Not necessarily. The panel held Rule 1.7(b)'s general material-limitation standard can still apply, since a family relationship by marriage could interfere with loyalty or independent judgment, though this particular arrangement cleared that standard based on assurances about which team would handle the cases.

Q: If a family member of mine will be deciding or reviewing cases I bring, rather than opposing me directly, does a different rule apply?

A: Yes, per this opinion. The panel treated the attorney's sister's role as a hearing officer whose decisions might be appealed by the attorney's clients as a separate Rule 1.7(b) issue, resolvable only with a reasonable belief of no adverse effect plus the client's informed consent.

Background and rules framework

The opinion applies Rule 1.8(i) (Conflict of Interest: Prohibited Transactions), the Model Rule counterpart of the same number, quoted in full, and Rule 1.7(b) (Conflict of Interest: General Rule), also quoted in full, for conflicts arising from family relationships that fall outside Rule 1.8(i)'s specific list.

Citations and references

Rules of Professional Conduct:

• MR 1.8(i) (Conflict of Interest: Prohibited Transactions) / RI Rule 1.8(i)
• MR 1.7(b) (Conflict of Interest: General Rule) / RI Rule 1.7(b)

See also

• Alabama State Bar Op. 1991-40: No Conflict Created Through Kinship by Blood or Marriage Between Attorneys

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%202005-07.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. 2005-00-07 Request No. 901
                           Issued September 22, 2005

Facts:

    The inquiring attorney is a member of a veterans pro bono program and would

like to represent clients before the United States Court of Appeals for Veterans Claims
(hereinafter “Court of Veterans Claims.”) The Court of Veterans Claims provides
appellate review of cases heard by the Board of Veterans Appeals (hereinafter “The
Board.”) The inquiring attorney states that most veterans are not represented by an
attorney until cases reach the Court of Veterans Claims.

    The inquiring attorney’s brother-in-law is an attorney with the Appellate

Litigation Division of the United States Department of Veterans Affairs. The
Department is adversarial to the veterans in matters brought before the Court of Veterans
Claims. The Department’s litigation division is divided into four teams. The inquiring
attorney’s brother-in-law is the supervising attorney for one team. The inquiring attorney
states that should he/she represent a veteran before the Court of Veterans Claims, he/she
has been assured that the case would not be handled by his/her brother-in-law or by other
lawyers on the brother-in-law’s team.

    Meanwhile, the inquiring attorney’s sister is a staff attorney with the Board. She

assists hearing offices in preparing their decisions, and in limited instances, serves as a
hearing officer.

Issue Presented:

   Given the employment of his/her sister and his/her brother-in-law, the inquiring

attorney asks whether he/she has a conflict of interest in representing clients before the
Court of Veterans Appeals.

Opinion:

    The inquiring attorney may represent clients before the Court of Veterans Claims

provided that he/she not represent clients aggrieved by a decision of his sister as hearing
officer unless the inquiring attorney (1) reasonably believes the representation will not be
adversely affected; and (2) obtains the client’s consent after consultation.
Final 2005-07
Req. 901

Reasoning:

    The issue of related lawyers representing opposing parties is the subject of Rule

1.8(i) which states:

            (i)    A lawyer shall not represent a client in any matter
                   where the lawyer knows that the lawyer's parent,
                   child, sibling, or spouse is the lawyer representing
                   an adverse party to the transaction except upon
                   consent by the client after consultation regarding
                   this relationship.

    Rule 1.8(i) specifies certain relatives, including a sibling, but does not include a

sibling’s spouse. Therefore, Rule 1.8(i) would not prohibit attorneys related by
marriage from representing opposing parties. However, Rule 1.7 which is the general
rule relating to conflicts of interest, may apply. Specifically, Rule 1.7(b) states:

            (b)   A lawyer shall not represent a client if the represent-
                  ation 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.

     A family relationship between two attorneys related by marriage who represent

opposing parties could interfere with both loyalty and independent judgment, and thus
could materially limit the representations. It is the Panel’s opinion that such a conflict-
of-interest would be personal and therefore would not be imputed to other attorneys in a
law firm.

    In the instant inquiry, the inquiring attorney has received assurances that neither

his/her brother-in-law nor another attorney whom the brother-in-law supervises will

                                           2

Final 2005-07
Req. 901

litigate a case in which the inquiring attorney represents a veteran. Based on these facts,
the Panel concludes that the inquiring attorney may represent clients on appeals before
the Court of Veterans Claims.

     As to the inquiring attorney’s sister’s position as an attorney for the Board, the

Panel believes that pursuant to Rule 1.7(b), the inquiring attorney has a conflict of
interest in the representation of a client who was aggrieved by the decision of a hearing
officer when the hearing officer was the inquiring attorney’s sister. In that event, the
Panel believes that the inquiring attorney may represent such a client provided that the
inquiring attorney reasonably believes that the representation of his/her client will not be
adversely affected, and the client consents after consultation. See Rule 1.7(b).

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

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