I represent two clients in separate divorces. One client's spouse alleges the two clients had an affair and wants to depose the other client. Can I keep representing both at that deposition?

Plain-English summary

The inquiring attorney represented Mr. A in his divorce proceeding and separately represented Mrs. B in her own divorce proceeding. Opposing counsel in Mr. A's case served a notice to depose Mrs. B, because Mr. A's wife alleged that Mr. A and Mrs. B had been romantically involved during Mr. and Mrs. A's marriage. Neither Mr. A nor Mrs. B had previously disclosed any such involvement to the attorney. On learning of the deposition notice, the attorney discussed the allegation with both clients, and both denied any romantic involvement. Both wanted the attorney to continue representing them in their respective divorces.

The panel applied Rule 1.7, which bars a lawyer from representing a client where the representation involves a concurrent conflict of interest, meaning either that one client's representation would be directly adverse to another, or that there is a significant risk that representing one client will be materially limited by the lawyer's duties to another. On the facts presented, the panel found neither condition met. Because both clients denied the alleged involvement, their interests were not adverse, and the panel observed their interests with respect to the deposition might in fact be aligned. The panel concluded there was no significant risk that representing one client would be materially limited by the attorney's responsibilities to the other.

The panel therefore concluded that the attorney's simultaneous representation of Mr. A and Mrs. B at Mrs. B's deposition in Mr. A's divorce case is not a conflict of interest and is permissible.

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, an attorney representing two separate clients in unrelated matters may continue representing both, including at a deposition where one client testifies about an allegation touching both clients, where both clients deny the allegation and their interests are not adverse. The panel's conclusion rests expressly on "the limited facts presented," including both clients' denial of the alleged involvement.

Common questions

Q: I represent two clients separately, and now one is being deposed about an allegation involving the other. Do I automatically have a conflict?

A: Not necessarily. The panel found no conflict here because both clients denied the alleged conduct, so their interests were not adverse, and there was no significant risk that representing one would be materially limited by the attorney's duties to the other.

Q: What if my clients' accounts of the underlying allegation had differed instead of both denying it?

A: The opinion does not address that scenario; its conclusion is expressly limited to "these limited facts," where both clients denied the alleged romantic involvement and their interests were not adverse.

Q: Does it matter that the deposition itself was in one client's case, not both?

A: The opinion treats the relevant question as whether the two clients' interests are adverse or would materially limit the lawyer's responsibilities to each, not which case the deposition arises in; it found the clients' interests with respect to the deposition might be aligned rather than adverse.

Background and rules framework

The opinion applies Rhode Island Rule 1.7 (Conflict of Interest: Current Clients), which prohibits a lawyer from representing a client if the representation involves a concurrent conflict of interest, defined as either direct adversity between clients or a significant risk that representing one will be materially limited by the lawyer's responsibilities to another, a former client, or a third person, or by the lawyer's own personal interest. The panel's analysis turns entirely on whether that threshold conflict exists on the facts presented, rather than on the Rule 1.7(b) conditions for waiving a conflict once found.

Citations and references

Rules of Professional Conduct:

• MR 1.7(a) (concurrent conflict of interest: direct adversity or material limitation)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• Alabama Ethics Op. 1982-591: One Lawyer, Co-Plaintiffs
• Arizona Bar Op. 86-08: Political Ties and Conflicts

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%202010-07.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. 2010-07 Issued October 18, 2010

Facts

The inquiring attorney represents Mr. A in a divorce proceeding, and has received a notice of deposition of Mrs. B from opposing counsel. Mr. A's wife is alleging that Mrs. B was romantically involved with Mr. A during Mr. and Mrs. A's marriage. The inquiring attorney also represents Mrs. B in her divorce proceeding.

The inquiring attorney states that at no time did either Mr. A or Mrs. B disclose to him/her that there was any romantic involvement between them. Upon receiving the notice of deposition of Mrs. B, the inquiring attorney discussed Mrs. A's allegation with both Mr. A and Mrs. B. Both clients deny any romantic involvement. Mr. A and Mrs. B want the inquiring attorney to continue to represent them in their respective divorce matters.

Issue Presented

May the inquiring attorney simultaneously represent Mr. A and Mrs. B at the deposition of Mrs. B in Mr. A's divorce case?

Opinion

The inquiring attorney's simultaneous representation of Mr. A and Mrs. B at the deposition of Mrs. B in Mr. A's divorce case is not a conflict of interest under Rule 1.7 because the interests of Mr. A and Mrs. B are not adverse, and further, because there does not appear to be a significant risk that the representation of one will be materially limited by the inquiring attorney's responsibilities to the other.

Reasoning

Rule 1.7 of the Rules of Professional Conduct is pertinent to this inquiry. The Rule states:
Final Op. 2010-07
Page 2

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.

From the limited facts presented, there does not appear to be a conflict of interest if the inquiring attorney simultaneously represents both clients, Mr. A and Mrs. B, at the deposition of Mrs. B in Mr. A's divorce case. The inquiring attorney has stated that both Mr. A and Mrs. B deny that they have had a romantic involvement as alleged. The interests of the two clients are not adverse. In fact, their interests with respect to the deposition may be aligned. Under these limited facts, there does not appear to be a significant risk that the representation of one client will be materially limited by the inquiring attorney's responsibilities to the other client. The Panel therefore concludes that the simultaneous representation of Mr. A and Mrs. B at the deposition of Mrs. B in Mr. A's case is not a conflict of interest, and is permissible.