I've been retained as special counsel for a municipality on two lawsuits, working alongside the town solicitor. Can I also represent private clients before that same municipality's zoning board of review or town council?

Plain-English summary

The inquiring attorney had been retained as special counsel for a municipality in two separate lawsuits, serving as co-counsel with either the municipality's solicitor or assistant solicitor and representing the municipality in each. The attorney sought to also represent private law clients in matters before the same municipality's zoning board of review and its town council.

The panel quoted Rule 1.7(a) and (b) in full. Because the attorney has a client-lawyer relationship with the municipality, Rule 1.7 bars representing clients with interests adverse to the municipality without consent. The panel relied on its own Ethics Advisory Panel Op. 90-36 (1990), which held that a party to a city's zoning board action occupies a position adverse to the city, so a part-time solicitor could not represent private clients before the city's zoning board, and on its own Ethics Advisory Op. 2003-06 (2003), which similarly found a Rule 1.7 conflict where an attorney representing a municipality in pending litigation also represented clients before the municipality's zoning and planning boards. Applying the same reasoning, the panel concluded the attorney's representation of private clients before the municipality's zoning board or town council would be a Rule 1.7 conflict, and the attorney may not undertake it unless the attorney reasonably believes the representation will not be adversely affected and obtains consent after consultation from both the municipality and the private clients.

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 Opinions 90-36 and 2003-06, an attorney serving as a municipality's special counsel in litigation has a Rule 1.7 conflict in representing private clients before that municipality's zoning board of review or town council, because private clients before those bodies occupy a position adverse to the municipality. The conflict may be cleared only by consent after consultation from both the municipality and the private clients, on the attorney's reasonable belief the representation will not be adversely affected.

Common questions

Q: Can I serve as special counsel for a municipality in litigation and also represent private clients before that town's zoning board or council?

A: Not without consent, according to this opinion. The panel held that doing so is a Rule 1.7 conflict of interest because clients before the zoning board or council occupy a position adverse to the municipality.

Q: Does it matter that my role as special counsel is limited to specific lawsuits, not general municipal representation?

A: The panel did not distinguish based on the scope of the special counsel engagement; it treated the existence of a client-lawyer relationship with the municipality, however arising, as sufficient to trigger the Rule 1.7 conflict analysis for adverse representations before municipal bodies.

Q: What clears the conflict if I still want to represent both the municipality and the private clients?

A: The panel required the attorney to reasonably believe the representation would not be adversely affected and to obtain consent after consultation from both the municipality and the private clients seeking representation before the zoning board or council.

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 party to a municipal zoning board action occupies a position adverse to the municipality, and on Ethics Advisory Op. 2003-06 (2003) for the same conclusion applied to a special-counsel litigation engagement.

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 party to a city's zoning board action occupies a position adverse to the city
• R.I. Supreme Court Ethics Advisory Panel Op. 2003-06 (2003): representing a municipality in litigation conflicts with existing zoning and planning board clients

See also

• RI EAP Op. 2003-06: Representing a Town in Litigation Conflicts With Existing Zoning and Planning Board Clients
• RI EAP Op. 2002-06: Serving as Town Moderator Does Not Bar Representing Clients Before the Town Council or Boards
• Alabama State Bar Op. 2005-01: City Attorney Who Is Also Defense Attorney in City Court Has Waivable Conflict of Interest

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%202007-03.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. 2007-03 Request No. 927
                               Issued February 8, 2007

Facts

   The inquiring attorney has been retained as special counsel for a municipality in

two separate lawsuits in which the inquiring attorney, as co-counsel with either the
municipality's solicitor or its assistant solicitor, represents the municipality. The inquiring
attorney seeks to represent private law clients in matters before the municipality's zoning
board of review and its town council.

Issue Presented

   The inquiring attorney, who represents the municipality as special counsel with the

municipality's solicitors, asks whether he/she would have a conflict of interest if he/she
represented private clients before the municipality's zoning board of review or its town
council.

Opinion

     The representation of private clients before a municipality's zoning board of review

or its town council by an attorney who represents the municipality as special counsel
constitutes a conflict of interest pursuant to Rule 1.7. The inquiring attorney may not
represent private clients before the zoning board of review or before the town council
unless he/she obtains the consent after consultation of the private clients and the
municipality.

Reasoning

      Rule 1.7 of the Rules of professional Conduct is pertinent to this inquiry. The 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
                     (2) each client consents after consultation.

2007-03
Page 2

           (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.

    The inquiring attorney has a client-lawyer relationship with the municipality.

Thus, under Rule 1.7, the inquiring attorney may not represent clients with interest adverse
to the municipality without client consent. In Ethics Advisory Panel Op. 90-36 (1990), the
Panel concluded that 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 private clients before the
city's zoning board. In Ethics Advisory Op. 2003-06 (2003) the Panel similarly concluded
that an attorney's representation of a municipality in a pending lawsuit would constitute a
conflict of interest under Rule 1.7 where the attorney also represented clients in matters
before the municipality's zoning and planning boards.

    In the instant inquiry, the Panel concludes that the inquiring attorney's

representation of private clients before the municipality's zoning board or before its town
council would constitute a conflict of interest pursuant to Rule 1.7. The inquiring attorney
may not represent clients before those municipal bodies unless he/she reasonably believes
the representation will not be adversely affected, and he/she obtains the consent after
consultation of the municipality and of those clients he/she seeks to represent.

    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 of other rules,
regulations or laws that may have hearing on the issues raised by this inquiry.