I'm on the city council, and an acquaintance wants me to represent his two sons on charges the city police brought against them. Can I take the case even though the city council appoints the solicitor who normally prosecutes these matters?

Plain-English summary

The inquiring attorney is a city council member. By city charter, the council appoints the city solicitor, who in practice selects two deputy solicitors approved by the council; one deputy prosecutes cases like this one. The charter bars council members from interfering with any administrative division or department. An acquaintance asked the attorney to represent his two sons, charged by the city with possession of marijuana, obstruction of justice, and simple assault. The attorney disclosed the council membership to the individuals, who waived any conflict claim; the assigned deputy solicitor recused, and the city solicitor explained a "pro tempore solicitor" is appointed when the solicitor and both deputies have conflicts.

The panel found a concurrent conflict exists under Rule 1.7(a)(2): because the city solicitor's office (which prosecutes the case) answers ultimately to the city council of which the attorney is a member, there is a significant risk the representation would be materially limited by the attorney's responsibilities to the city. But the panel concluded the attorney may proceed under Rule 1.7(b) if the attorney reasonably believes competent and diligent representation remains possible, the representation is not otherwise prohibited by law, and the individuals give informed consent confirmed in writing; the panel noted a footnote that Rule 1.7(b)(3) (barring one client's claim against another client in the same proceeding) does not apply here because the attorney is a council member, not the council's lawyer. The panel found the city solicitor's established practice of engaging outside counsel when the solicitor's office itself has a conflict supports the attorney's reasonable belief that competent and diligent representation is achievable. Because the attorney supplied no facts distinguishing the two brothers' charges, the panel separately cautioned that a conflict could exist in representing both simultaneously and directed the attorney to investigate whether their interests are adverse, which would trigger its own Rule 1.7 analysis.

In practice

The opinion holds that a lawyer who is also an elected official on a body that appoints the prosecuting authority is not barred from representing individuals the city has charged, but must treat the elected role as creating a Rule 1.7(a)(2) conflict that can only be cured through Rule 1.7(b)'s full waiver procedure (reasonable belief in competent representation, lawfulness of the representation, and informed written consent). The opinion further holds that representing co-defendants in the same case requires an independent check for adversity between those clients, separate from the conflict created by the lawyer's public office.

Common questions

Q: Can I represent someone the city charged if I sit on the city council?

A: Yes, but not automatically. The opinion holds a Rule 1.7(a)(2) conflict exists because the prosecuting solicitor's office is accountable to the council, and the attorney may proceed only by satisfying Rule 1.7(b): a reasonable belief in competent representation, lawfulness, and the clients' informed written consent.

Q: Does it help that the city already has a practice of bringing in outside counsel when its own solicitor's office is conflicted?

A: Yes. The opinion treats the city solicitor's established practice of appointing a pro tempore solicitor in conflict situations as supporting the attorney's reasonable belief that competent and diligent representation of the clients remains achievable despite the council role.

Q: I want to represent two people charged in the same incident. Is that automatically fine once I've cleared the council-related conflict?

A: No. The opinion separately requires the attorney to investigate whether the two clients' interests are adverse to each other, since simultaneous representation of co-defendants can create its own Rule 1.7 conflict independent of the council-membership issue.

Background and rules framework

The opinion applies Rhode Island Rule 1.7 (Conflict of Interest: Current Clients). Rule 1.7(a)(2) finds a concurrent conflict where there is a significant risk that a representation will be materially limited by the lawyer's responsibilities to a third person or the lawyer's own personal interest, here the attorney's role as a city council member overseeing appointment of the solicitor who prosecutes the case. Rule 1.7(b) permits the representation to proceed despite that conflict if the lawyer reasonably believes competent and diligent representation is possible, the representation is not prohibited by law, it does not involve one client's claim against another in the same proceeding, and each client gives informed consent confirmed in writing.

Citations and references

Rules of Professional Conduct:

• MR 1.7(a)(2) (concurrent conflict from material limitation by responsibilities to a third person)
• MR 1.7(b) (conditions permitting representation despite the conflict, including informed written consent)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• Rhode Island Ethics Advisory Panel Op. 2012-04: A Law Partner's City Council Membership Does Not Per Se Bar Representing Clients Before the Municipality's Boards, Commissions, or Council
• Alabama Ethics Op. 1992-22: Partner of city councilman serving as city prosecutor
• 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
• 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%2013-04.pdf

Original opinion text

Final

Rhode Island Supreme Court
Ethics Advisory Panel Op. 2013-04
Issued November 14, 2013

FACTS

The inquiring attorney is a member of the city council in a municipality. The inquiring attorney seeks an opinion about whether he/she may represent clients in Rhode Island District Court and the Rhode Island Traffic Tribunal in cases where charges are brought against individuals by the municipality. By city charter, the city council appoints a city solicitor. By practice, the city solicitor selects two deputy solicitors who are approved by the city council. One of the deputy solicitors serves as the prosecutor. The city charter prohibits council members from interfering in any way with any divisions of the administration or with any department.

An acquaintance of the inquiring attorney has asked the inquiring attorney to represent his two sons who were charged by the city with possession of marijuana, obstruction of justice, and simple assault. The inquiring attorney has explained to the individuals that he/she is a city council member, and the individuals waived any claim of conflict of interest. The deputy solicitor assigned to the case has recused himself from the matter. The city solicitor has informed the inquiring attorney that he/she appoints a "pro tempore solicitor" in matters where the solicitor and both deputies have conflicts of interest.

ISSUE PRESENTED

May the inquiring attorney who is a city council member represent clients who were charged by the city with possession of marijuana, obstruction of justice, and simple assault, in Rhode Island District Court and in Rhode Island Traffic Tribunal?

OPINION

The inquiring attorney, a city council member, may represent in Rhode Island District Court and the Rhode Island Traffic Tribunal two individuals charged by the city's police department with possession of marijuana, obstruction of justice, and simple assault, provided he/she complies with the waiver provisions of paragraph (b) of Rule 1.7; and provided further that he/she complies with Rule 1.7 as it relates to the simultaneous representation of the two individuals. Final Op. #2013-04 Page | 2

REASONING

Rule 1.7 entitled "Conflict of interest: Current clients" is pertinent to this inquiry.
It states 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
(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 municipality through its police department has charged two individuals with possession of marijuana, obstruction of justice, and simple assault. The city solicitor, or its deputies, prosecutes such cases on behalf of the city. The city council appoints the city solicitor. The inquiring attorney, a city member of the council, proposes to represent the two individuals. The Panel believes that a conflict of interest exists pursuant to Rule 1.7 (a)(2), in that there is a significant risk that the representation of the two individuals would be materially limited by the inquiring attorney's responsibilities to the city.

However, the Panel is of the opinion that the inquiring attorney may undertake the proposed representations pursuant to Rule 1.7(b). Notwithstanding his/her relationship with, and responsibilities to, the city as a city council member, the inquiring attorney may represent the individuals if the inquiring attorney reasonably believes that he/she is able to provide competent and diligent representation, the representation is not prohibited by Final Op. #2013-04
Page | 3

law, and the individuals give informed consent, confirmed in writing Rule 1.7(b).1 The Panel believes that the city solicitor's practice of engaging outside counsel when the city solicitor or its deputies have a conflict of interest assists in the inquiring attorney's reasonable belief that he/she can provide competent and diligent representation of the individuals.

The inquiring attorney supplied no facts about the criminal charges as they relate to each of the two individuals except that they are brothers. He/she has proposed to represent both of them in the criminal matters. The Panel advises the inquiring attorney that a conflict of interest could exist in the simultaneous representation of both individuals. The Panel, therefore, further advises that in addition to complying with Rule 1.7 as it relates to the material limitations presented by his/her elected office, the inquiring attorney also must investigate whether there exists any adverse interests between the two individuals which would create a separate conflict of interest under Rule 1.7.

The Panel concludes that the inquiring attorney, a city council member, may represent in Rhode Island District Court and the Rhode Island Traffic Tribunal two individuals charged by the city's police department with possession of marijuana, obstruction of justice, and simple assault, provided he/she complies with the waiver provisions of paragraph (b) of Rule 1.7; and provided further that he/she complies with Rule 1.7 as it relates to the simultaneous representation of the two individuals in the event that the representation of one of them is directly adverse to the other.

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.

1
Subparagraph (3) of Rule 1.7(b) does not apply to these facts, as the inquiring attorney is a member of, and not attorney for, the city council.