I represent my municipality in labor and personnel matters. Can I take on a case against the municipality's school department for a different client?

Plain-English summary

The inquiring attorney represented a municipality in labor and personnel matters, having been retained by the mayor with the concurrence of the municipality's solicitor and reporting to both. The parents of a student with disabilities asked the attorney to represent them in a matter against the municipality's school department over special education services, in a case where any monetary judgment would be satisfied by the municipality.

The panel concluded this was a concurrent conflict of interest under Rule 1.7. The school department is a body of the municipality, and the parents would occupy a position adverse to the municipality in a proceeding against the department. Citing its own prior opinions, the panel noted it had reached the same conclusion where an attorney representing a municipality as special counsel in lawsuits also represented private clients before the municipality's zoning board (Op. 2007-03), and where an attorney representing a municipality in a lawsuit also represented clients before its planning and zoning boards (Op. 2003-06), and had held more generally that a party to a city zoning board action occupies a position adverse to the city (Op. 90-36).

The panel also addressed the attorney's argument that Gray v. Dept. of Children, Youth, and Families, 937 F. Supp. 153 (D.R.I. 1996), supported taking the case, since that decision found no conflict where a lawyer representing one state agency represented clients against a different state agency. The panel distinguished Gray: there, the court found the lawyer's client was the individual board, not the state as a whole, but here the attorney represents the municipality as a whole, and the school department is a subdivision of that same municipal client, not a separate entity.

The panel concluded that Rule 1.7 prohibits the attorney from representing clients with interests adverse to the municipality, and that absent consent under Rule 1.7(b), the attorney may not take on the proposed representation against the school department.

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, an attorney who represents a municipality in labor and personnel matters may not also represent private clients in a matter against a subdivision of that same municipality, such as its school department, because the subdivision is part of the same client for Rule 1.7 purposes. The opinion frames the conflict as curable only through consent satisfying Rule 1.7(b), which it does not further discuss.

Common questions

Q: Does it matter that the school department is a separate department from the mayor's office that retained me?

A: No. The panel treated the school department as a body of the municipality itself, so representing clients against the department is the same, for Rule 1.7 purposes, as representing them against the municipality the attorney already represents.

Q: I found a federal case where a lawyer represented one government agency and opposed a different one without a conflict. Does that help me?

A: The panel considered and rejected this argument based on Gray v. Dept. of Children, Youth, and Families. It distinguished Gray because that case treated the lawyer's client as a specific board, not the state as a whole, whereas here the attorney represents the municipality as a whole and the school department is merely a subdivision of that same client.

Q: Could the municipality just consent to let me take the case?

A: The opinion states the attorney "may not take on the proposed representation" absent consent under Rule 1.7(b), which implies a properly obtained consent could resolve the conflict, but the panel does not address whether such consent was sought or would be available on these facts.

Background and rules framework

The opinion applies Rhode Island Rule 1.7 (Conflict of Interest: Current Clients), which bars a lawyer from representing a client where the representation involves a concurrent conflict of interest, including where representation of one client would be directly adverse to another client, unless the conditions of Rule 1.7(b) (informed consent confirmed in writing, among others) are satisfied. The panel applied this rule consistently with its own prior line of opinions treating representation adverse to a municipal body, such as a zoning board or school department, as adverse to the municipality itself when the attorney also represents the municipality directly.

Citations and references

Rules of Professional Conduct:

• MR 1.7(a) (concurrent conflict of interest defined)
• MR 1.7(b) (conditions permitting representation despite a concurrent conflict)

Statutes:

• None cited.

Cases:

• Gray v. Dept. of Children, Youth, and Families, 937 F. Supp. 153 (D.R.I. 1996), distinguished; addressed whether a lawyer representing one state agency has a conflict representing clients against a different state agency.

Other opinions cited:

• RI Ethics Advisory Panel Op. 2007-03 (2007): representing a municipality as special counsel in lawsuits while also representing private clients before its zoning board was a conflict of interest.
• RI Ethics Advisory Panel Op. 2003-06 (2003): representing a municipality in a lawsuit while also representing clients before its planning and zoning boards was a conflict of interest.
• RI Ethics Advisory Panel Op. 90-36 (1990): a party to a city zoning board action occupies a position adverse to the city.

See also

• ABA Formal Op. 97-405: Conflicts in Representing Government Entities
• Alabama Ethics Op. 2005-01: City Attorney Conflict

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%202010-04.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. 2010-04
                            Issued September 9, 2010

FACTS

    The inquiring attorney represents a municipality in labor and personnel matters.

The inquiring attorney states that he/she provides assistance to the city solicitor's office

with respect to those matters. The inquiring attorney further states that he/she was retained

by the mayor with the concurrence of the municipality's solicitor, and that he/she reports to

the solicitor and to the mayor. The parents of a student with disabilities have asked the

inquiring attorney to represent them in a matter against the municipality's school

department. The matter relates to special education services to which the student may be

entitled under state and federal laws. The inquiring attorney states that a monetary

judgment in favor of the prospective clients would be satisfied by the municipality.

ISSUE PRESENTED

    The inquiring attorney, who represents the municipality in labor and personnel

matters, asks whether he/she would have a conflict of interest if he/she represents clients in

a matter against the municipality's school department.

OPINION

    The inquiring attorney's representation of parents of a student with disabilities

against a municipality's school department would constitute a conflict of interest pursuant
Final Op. 2010-04
Page 2 of 3

    to Rule 1.7 where the inquiring attorney also represents the municipality in labor and

    personnel matters. Absent consent pursuant to Rule 1.7(b), the inquiring attorney may not

    take on the proposed representation.

    REASONING

              Rule 1.7 of the Rules of Professional Conduct is pertinent to this inquiry. The Rule

    states:

               Rule 1.7 Conflict of interest: Current clients. (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.
                (b) Notwithstanding the existence of a concurrent conflict of interest
                under paragraph (a), a lawyer may represent a client if:
                (1) the lawyer reasonably believes that the lawyer will be able to provide
                competent and diligent representation to each affected client;
                (2) the representation is not prohibited by law;
                (3) the representation does not involve the assertion of a claim by one
                client against another client represented by the lawyer in the same
                litigation or other proceeding before a tribunal; and
                (4) each affected client gives informed consent, confirmed in writing.


              In Ethics Advisory Panel Op. 2007-03 (2007), the Panel concluded that the

    representation of private clients before a municipality's zoning board of review or its town

    council by an attorney who represented the municipality as special counsel in two separate

    lawsuits constituted a conflict of interest pursuant to Rule 1.7. In Ethics Advisory Panel

    Op. 2003-06 (2003), the Panel similarly concluded that it was a conflict of interest for an

    attorney to represent a municipality in a lawsuit where the attorney also represented clients

    in matters before the municipality's planning and zoning boards.

Final Op. 2010-04
Page 3 of 3

            In the instant inquiry, the inquiring attorney has an attorney-client relationship with

    the municipality.     He/she proposes to represent clients in a matter against the

    municipality's school department. The school department is a body of the municipality.

    In the Panel's view, the student's parents would occupy a position adverse to the

    municipality in a proceeding against its school department. See Ethics Advisory Panel Op.

    90-36 (1990) (party to city's zoning board action occupies position adverse to city).

            Rule 1.7 prohibits the inquiring attorney from representing clients with interests

    adverse to his/her current client, the municipality. The Panel therefore concludes that

    where the inquiring attorney represents the municipality in labor and personnel matters, the

    inquiring attorney's representation of the parents of a student against the municipality's

    school department would constitute a conflict of interest pursuant to Rule 1.7. Absent

    consent pursuant to Rule 1.7(b), the inquiring attorney may not take on the proposed

    representation.1




    1
      The Panel has considered Gray v. Dept. of Children, Youth, and Families, 937 F. Supp.
    153 (D.R.I. 1996) which the inquiring attorney suggests supports a conclusion that the
    proposed representation would not be a conflict of interest. In the Panel's view, Gray does
    not support such a conclusion. In Gray, it was held that an attorney who represented one
    state agency did not have a conflict of interest in representing clients against another state
    agency. Id. at 160. The court denied a motion to disqualify plaintiff's counsel, stating
    "…as an attorney for the Boards, [the attorney's] clients for purposes of Rule 1.7 are the
    Boards themselves, and not the State of Rhode Island." Id. The inquiring attorney in the
    instant inquiry represents the municipality as a whole, and he/she now proposes to
    concurrently represent clients in a matter against a subdivision of the municipality. In the
    Panel's opinion, neither Gray nor Rule 1.7 of the Rules of Professional Conduct permits
    the representation the inquiring attorney proposes.