I'm representing a terminated state-agency hearing officer in an employment dispute against the agency. I also represent a corporate client seeking a contested license from that same agency. The agency's lawyers say I have a conflict and must withdraw from all matters there. Do I?

Plain-English summary

The inquiring attorney was retained in October 2006 by a corporate client to obtain a state agency license, filing a resubmitted application after an earlier denial; the matter was scheduled for hearing but not yet heard. The attorney was then retained by an agency employee (also an attorney, who had served as a hearing officer at the agency in matters unrelated to the corporate client's license) regarding possible termination, and appeared at the employee's pre-disciplinary hearing; two days later the employee was terminated. The same day, counsel for the state office representing agencies in employment disputes sent the attorney a letter asserting the representation of the terminated employee created a conflict "on many fronts" requiring immediate, indefinite withdrawal from all contested agency matters, citing the attorney's access to the agency legal department's confidential information through the employee representation. Days later, when the attorney appeared for the corporate client at the license hearing, the hearing officer, who was the terminated employee's former supervisor, refused to proceed, citing the letter and asserting a conflict; the matter was continued.

The panel applied Rule 1.7 (Conflict of Interest: Current Clients) in full, including the concurrent-conflict definitions in subsections (a)(1) and (a)(2). It found the corporate client's license representation not directly adverse to the terminated hearing officer, and found no significant risk, "or even a small risk," that either representation would be materially limited by the attorney's responsibilities to the other client. The panel concluded the concurrent representations do not present a Rule 1.7 conflict and both are permissible.

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, representing a terminated agency employee in an employment dispute against the agency, and concurrently representing an unrelated client in a contested proceeding before the same agency, is not a Rule 1.7 conflict where the two matters and clients are not directly adverse to each other and neither representation presents a significant risk of material limitation from the lawyer's duties to the other client, even where the agency's own counsel asserts a broad, indefinite conflict.

Common questions

Q: If I represent someone against an agency, does that automatically conflict with representing a different client in an unrelated matter before that same agency?

A: No, according to this opinion. The panel found no Rule 1.7 conflict where the two representations were not directly adverse and neither risked being materially limited by the attorney's duties to the other client.

Q: Does it matter that the agency's own lawyers asserted the representation created a conflict "on many fronts"?

A: The panel's own Rule 1.7 analysis controlled; it did not adopt the agency counsel's broad assertion, instead finding no direct adversity and no significant risk of material limitation between the two specific representations at issue.

Q: What if the hearing officer who refused to proceed has a personal connection to the terminated employee?

A: The opinion's Rule 1.7 analysis addressed the attorney's conflict between the two clients; it did not treat the presiding hearing officer's own relationship to the terminated employee as bearing on whether the attorney had a conflict.

Background and rules framework

The opinion applies Rule 1.7(a) (Conflict of Interest: Current Clients), the Model Rule counterpart of the same number, quoted in full, defining a concurrent conflict of interest as representation directly adverse to another client, or a significant risk that representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, a third person, or the lawyer's own interest. The panel found neither condition met on these facts.

Citations and references

Rules of Professional Conduct:

• MR 1.7(a) (Conflict of Interest: Current Clients) / RI Rule 1.7(a)

See also

• RI EAP Op. 2006-01: Representing a Passenger's Underinsured Claim Against an Insurer Is Not Adverse to Representing the Insured Driver in an Unrelated Slip-and-Fall Case
• Alabama State Bar Op. 1996-03: Law Firm May Represent Multiple Plaintiffs Against Same Defendant If Different Plaintiffs' Interests Are Not Adverse to or Compete With One Another

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%202007-08.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. 2007-08 Request No. 938
                              Issued June 2007

Facts:

    In October 2006, the inquiring attorney was retained by a corporate client for the

purpose of obtaining a license at a state agency. The client had previously filed an
original application which was denied by the agency and for which an objection was filed.
The inquiring attorney prepared and filed a "resubmission of application" for the license.
The matter was scheduled for hearing, but has not yet been heard.

    Recently the inquiring attorney was retained by an employee of the same state

agency regarding possible termination of employment. The employee, also an attorney,
served as a hearing officer at the agency in a capacity unrelated to the matter of the
inquiring attorney's corporate client. The inquiring attorney appeared on the employee's
behalf at a pre-disciplinary hearing regarding the agency's allegations supporting the
termination. Two days later, the employee received a notice terminating his/her
employment.

    On the same day, the inquiring attorney received a letter from legal counsel for the

state office whose lawyers represent the various state agencies in employment disputes,
stating that the inquiring attorney's representation of the terminated state employee
"presents a conflict of interest on many fronts which would require you to immediately
disqualify yourself from representing clients with contested matters at [the agency] for the
indefinite future. Obviously, in your capacity as attorney for [the former employee] . . .
you have had the opportunity to acquire confidential information owned by the legal
department at [the agency] through your representation." The letter requested an
immediate withdrawal from all contested matters involving the agency for the indefinite
future.

    Several days later when the inquiring attorney appeared on behalf of his/her

corporate client at the agency hearing on its license application, the hearing officer, who
was also the terminated employee's supervisor, refused to go forward with the hearing
stating that he/she was in possession of a copy of the letter to the inquiring attorney from
the state's legal counsel, and that the inquiring attorney had a conflict of interest. The
matter was continued for two weeks.
Issue Presented:

   The inquiring attorney asks whether it is a conflict of interest for him/her to

represent a terminated agency attorney-hearing officer in an employment matter against the
agency, and also to represent another client at a hearing at the same agency on the client's
application for a license, which is contested.

Opinion:

    The concurrent representations do not constitute a conflict of interest pursuant to

Rule 1.7 of the Rules of Professional Conduct, and therefore both representations by the
inquiring attorney are permissible.

Reasoning:

     Rule 1.7 entitled "Conflict of Interest: Current Clients" is applicable to this inquiry.

It states in pertinent part:

           (a) Except as provided in paragraph (b), a lawyer shall not
           represent a client if the representation involves a concurrent
           conflict of interest. A concurrent conflict of interest exists if:

           (1)     the representation of one client will be directly adverse to
           another client; or
           (2)     there is a significant risk that the representation of one or
           more clients will be materially limited by the lawyer's
           responsibilities to another client, a former client or a third person
           or by a personal interest of the lawyer.

Paragraph (b) of Rule 1.7 sets forth the criteria for waiver and is not applicable here.

    The inquiring attorney's representation of a corporate client that is seeking a

license at the agency is not directly adverse to the agency's terminated attorney-hearing
officer. Further, there does not exist a significant risk, or even a small risk, that the
representation of the inquiring attorney's corporate client will be materially limited by the
inquiring attorney's responsibilities to the terminated employee, or that the representations
of the agency's former employee will be materially limited by the representation of the
corporate client. It is the conclusion of the Panel that the inquiring attorney's concurrent
representations of the two clients do not present a conflict of interest. The inquiring
attorney's representation of the corporate client at the agency, and his/her concurrent
representation of the agency's terminated employee, are permissible under the Rules of
Professional Conduct.

    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 issues raised by this inquiry.

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