My law partner sits on the city council, and I sit on one of the city's advisory commissions. Am I barred from representing clients before the city's boards, commissions, law department, probate court, or the city council itself?

Plain-English summary

The inquiring attorney's law partner is a member of a municipality's city council, and the inquiring attorney is a member of one of the municipality's advisory commissions. The attorney asked whether he or she may represent clients in matters before the municipality's boards, commissions, law department, probate court, or the city council itself, noting that appointment to some of these bodies is made by, or requires confirmation by, the city council.

The panel applied Rule 1.7, which bars a lawyer from representing a client where a concurrent conflict of interest exists, meaning the representation is directly adverse to another client or there is a significant risk it will be materially limited by the lawyer's responsibilities to another client, a former client, a third person, or the lawyer's own personal interest. The panel concluded there is no blanket bar, but that conflicts could arise depending on the specific facts of each representation, requiring the inquiring attorney to assess whether representing a given client would be materially limited by responsibilities to others or by personal interests, including the connection created by the law partner's council seat. The panel cited its own prior opinion, R.I. Supreme Court Ethics Advisory Panel Op. 2005-09 (2005), which similarly held that an attorney elected to city council is not per se barred from representing clients before the city's planning and zoning boards. The panel also noted its guidance is limited to interpreting the Rules of Professional Conduct and does not extend to the State Ethics Code or other laws that may separately bear on the inquiry.

In practice

The opinion holds that a lawyer whose law partner sits on a municipal body is not automatically disqualified from representing clients before that municipality's boards, commissions, departments, or the council itself; the lawyer must assess, representation by representation, whether there is a significant risk that responsibilities to others or the lawyer's own personal interests will materially limit the representation. Where such a risk exists, the opinion holds the lawyer may still proceed under Rule 1.7(b) if the lawyer reasonably believes competent and diligent representation remains possible and the client gives informed consent, confirmed in writing.

Common questions

Q: Can I represent clients before the city council if my law partner is a member of it?

A: The opinion holds there is no per se bar; the inquiring attorney must determine in each case whether there is a significant risk that the representation will be materially limited by the partner's council membership or the lawyer's own related interests.

Q: What if I determine there is a conflict risk in a particular matter?

A: The opinion holds the lawyer may still represent the client under Rule 1.7(b) if the lawyer reasonably believes he or she can provide competent and diligent representation and the client gives informed consent, confirmed in writing.

Q: Does this opinion cover conflicts under the State Ethics Code as well?

A: No. The opinion states the panel's guidance is restricted to interpretations of the Rules of Professional Conduct and does not extend to the State Ethics Code or any other rules, regulations, or laws that may bear on the inquiry.

Background and rules framework

The opinion applies Rhode Island Rule 1.7 (Conflict of Interest: Current Clients). Rule 1.7(a) defines a concurrent conflict as direct adversity to another client or a significant risk that the representation will be materially limited by the lawyer's responsibilities to another client, a former client, a third person, or a personal interest of the lawyer. Rule 1.7(b) allows the lawyer to proceed despite such a conflict if the lawyer reasonably believes competent and diligent representation remains possible, the representation is not otherwise prohibited by law, it does not pit the lawyer's clients against each other in the same proceeding, and each affected client gives informed consent, confirmed in writing.

Citations and references

Rules of Professional Conduct:

• MR 1.7(a) (concurrent conflicts: direct adversity and material limitation)
• MR 1.7(b) (conditions permitting representation despite a conflict)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• Rhode Island Supreme Court Ethics Advisory Panel Op. 2005-09 (2005): an attorney elected to city council is not per se prohibited from representing clients before the city's planning and zoning boards.

See also

• Rhode Island Ethics Advisory Panel Op. 2005-09: Election to City Council Does Not Per Se Bar Representing Clients Before the City's Planning and Zoning Boards
• Alabama Ethics Op. 1992-22: Partner of city councilman serving as city prosecutor
• Alabama Ethics Op. 1984-190: Lawyer who serves as municipal judge may represent city police officer in possible criminal and civil proceedings involving officer's alleged misconduct if lawyer has no judicial role in any related facet of case(s)
• Rhode Island Ethics Advisory Panel Op. 2014-07: Rule 1.7 Lets a Solicitor Defend a Municipality and Its Planning Board and Board of Appeals on the Same Land-Use Appeal

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%2012-04.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Final

Rhode Island Supreme Court Ethics Advisory Panel
Opinion No. 2012-04
Issued May 11, 2012

FACTS

The inquiring attorney's law partner is a city council member in a municipality. The inquiring attorney is a member of one of the municipality's advisory commissions. The inquiring attorney asks whether he/she is permitted to represent clients in matters before the municipality's boards, commissions, law department, probate court, or the city council. Appointment to some of these either is made by the city council, or requires confirmation by the city council.

ISSUE PRESENTED

The inquiring attorney asks whether he/she may represent clients before a municipality's boards, commissions, law department, probate court, or the city council if the inquiring attorney's law partner is a member of the city council.

OPINION

The inquiring attorney is not per se prohibited by the Rules of Professional Conduct from representing clients before the municipality's boards, commissions, law department, probate court, or the city council. The inquiring attorney must determine in each case if there is a significant risk that the representation will be materially limited.

REASONING

Rule 1.7 entitled "Conflict of interest: Current clients" provides as follows.

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

Final Op. 2012-04
Page 2 of 2

(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.

The inquiring attorney, whose law partner is a member of a city council, is not per se prohibited from representing clients before the municipality's boards, commission, law department, probate court, or the city council. However, situations are possible that would give rise to conflicts of interest under the Rules. Whether a representation presents such a conflict of interest will depend on the unique facts of each case, and on the inquiring attorney's determination of whether his/her representation of a client would be materially limited by the lawyer's responsibilities to others or by his/her own personal interests.

The Panel concludes that the inquiring attorney is not per se prohibited from representing clients before the municipality's various boards and subdivisions, but must determine in each case if there is a significant risk that that representation will be materially limited. If he/she determines that such a risk exists, pursuant to Rule 1.7(b) he/she may represent the client provided he/she reasonably believes that he/she will be able to provide competent and diligent representation, and the client gives informed consent. See R.I. Supreme Court Ethics Advisory Panel Op. 2005-09 (2005) (if elected to city council, attorney is not per se prohibited from representing clients before city's planning and zoning boards.)

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.