My new client's estranged wife sat in on our five-minute initial meeting where he handed over his file, but I never spoke with her, advised her, or took her on. Does her presence at that meeting create a conflict that blocks me from representing him at his deportation hearing?

Plain-English summary

The inquiring attorney entered an appearance for a respondent in a deportation matter before the Immigration Court in Boston, after the respondent's prior counsel had filed a motion to withdraw ahead of an imminent hearing. In a separate, related matter, the same prior counsel had represented the respondent's wife, a U.S. citizen, in a petition benefiting the respondent; the couple later separated, and prior counsel withdrew from that representation too. The respondent's estranged wife attended the roughly five-minute initial meeting between the respondent and the inquiring attorney, at which the respondent delivered his file. The attorney stated he or she did not interview the wife, counsel her, obtain testimony from her, or undertake to represent her, and that the deportation matter related only to the respondent, whom the attorney met with alone after that first meeting.

The panel applied Rule 1.7(a), which bars representation involving a concurrent conflict of interest, including direct adversity to another client or a significant risk of material limitation from responsibilities to another client, former client, or third person. Because the attorney undertook to represent only the respondent, did not advise the estranged wife, and did not undertake to represent her, the panel found she was neither a client nor a prospective client under Rule 1.18. On that basis, the panel concluded that her mere attendance at the initial consultation does not create a Rule 1.7(a) conflict of interest barring the attorney's representation of the respondent at the deportation hearing.

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, a third party's mere physical presence at an initial client consultation, without the attorney interviewing, counseling, or undertaking to represent that third party, does not make the third party a client or a prospective client under Rule 1.18, and therefore does not by itself create a Rule 1.7(a) conflict of interest.

Common questions

Q: Does someone become my "prospective client" just by sitting in on a meeting with my actual client?

A: Not according to this opinion. The panel found the estranged wife was not a prospective client under Rule 1.18 because the attorney did not interview her, counsel her, obtain testimony from her, or undertake to represent her; mere attendance was not enough.

Q: What made the difference between a conflict and no conflict here?

A: The opinion emphasizes that the attorney undertook to represent only the respondent, that the deportation matter related only to the respondent, and that the attorney met alone with the respondent after the initial meeting; those facts distinguish mere presence from any actual attorney-client or prospective-client contact.

Q: Would the answer change if the attorney had discussed the case with the third party or given her advice?

A: The opinion's conclusion rests specifically on the attorney not interviewing, counseling, or obtaining testimony from the estranged wife; different facts along those lines would raise the Rule 1.18 prospective-client analysis the panel did not need to reach here.

Background and rules framework

The opinion interprets Rhode Island Rule 1.7(a) (Conflict of Interest: Current Clients), which tracks Model Rule 1.7(a) and asks whether representation would be directly adverse to another client or present a significant risk of material limitation from responsibilities to another client, former client, or third person. The panel's analysis turns on Rule 1.18 (Duties to Prospective Client), which defines who qualifies as a prospective client entitled to conflict protections.

Citations and references

Rules of Professional Conduct:

• MR 1.7(a) (concurrent conflicts of interest; direct adversity; significant risk of material limitation)
• MR 1.18 (duties to a prospective client)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• ABA Formal Op. 492: Obligations to Prospective Clients: Confidentiality, Conflicts and "Significantly Harmful" Information
• ABA Formal Op. 510: Avoiding the Imputation of a Conflict of Interest When a Law Firm Is Adverse to One of Its Lawyer's Prospective Clients

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%202010-01.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. 2010-01 Request No. No. 968
                         Issued February 23, 2010

FACTS

   The inquiring attorney has entered an appearance on behalf of a respondent in a

deportation matter before the Immigration Court in Boston, Massachusetts. The
respondent sought the services of the inquiring attorney because a deportation hearing
was imminent, and the respondent's then-attorney (predecessor counsel) had filed a
motion to withdraw from representing him. In a separate but related matter, predecessor
counsel also had represented respondent's wife, a United States citizen, in a petition for
the benefit of the respondent. The couple later separated, and predecessor counsel
withdrew from the representation.

    The respondent's estranged wife attended the initial meeting between the

respondent and the inquiring attorney on the deportation matter, at which time the
respondent delivered his file to the inquiring attorney. The meeting lasted approximately
five minutes. The inquiring attorney states that he/she did not interview the wife, counsel
her, obtain any testimony from her, or undertake to represent her. He/she further states
that the deportation matter before the Immigration Court relates only to the respondent,
and that he/she met only with the respondent after the initial meeting.

ISSUE PRESENTED

   The inquiring attorney asks if he/she has a conflict of interest that would prohibit

him/her from proceeding with the representation of the respondent at the deportation
hearing.

OPINION

    The mere attendance of the respondent's estranged wife at the initial consultation

between the inquiring attorney and the respondent on the deportation matter does not
create a conflict of interest which would prohibit the inquiring attorney from representing
the respondent at the deportation hearing before the Immigration Court.

REASONING

   Rule 1.7 of the Rules of Professional Conduct entitled "Conflict of interest:

Current clients" states in pertinent part as follows:
Final Op. 2010-01
Page 2 of 2

                 (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.

          The inquiring attorney has stated that the deportation matter in which he/she has
  entered an appearance relates only to the respondent, and that he/she has undertaken to
  represent only the respondent. Although the estranged wife attended the initial meeting
  between the inquiring attorney and the respondent, the inquiring attorney did not advise
  her or undertake to represent her. Based on the facts as presented, the Panel is of the
  opinion that the estranged wife was neither a client, nor a potential client (Rule 1.18), of
  the inquiring attorney. The Panel concludes that the mere attendance of respondent's
  estranged wife at the initial consultation between the inquiring attorney and the
  respondent on the deportation matter does not create a conflict of interest pursuant to
  Rule 1.7(a) which would prohibit the inquiring attorney from representing the respondent
  at the deportation hearing before the Immigration Court.