I'm a part-time prosecutor for City A one day a week, and my private criminal-defense practice wants to take on a client charged with a misdemeanor by City B's police, heard in the same district court division as City A's cases. Is that a conflict?
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This page answers the general question as of 2014. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The inquiring attorney works part time, one day a week, as an hourly-paid solicitor for City A, prosecuting misdemeanor offenses charged by City A's police department. The attorney also runs a private criminal-defense practice throughout the state's courts. The attorney asked whether it is a conflict of interest to represent, in private practice, an individual charged with a misdemeanor by City B's police department, given that City A's and City B's misdemeanor cases are heard before the same division of the district court.
The panel applied Rule 1.7, noting that accepting the part-time solicitor position makes City A a client of the attorney. Under Rule 1.7(a)(1), the panel found no direct adversity: the individual charged by City B is not in a position adverse to City A, and the interests of someone defending against a City B charge are not adverse to City A's interest in prosecuting its own misdemeanor charges. The panel contrasted this with the clearly prohibited scenario where a City A prosecutor tries to represent someone City A itself charged, citing its own Opinions 90-36 and 90-14, which hold that a part-time city solicitor and the solicitor's firm may not represent anyone charged by that same city. Turning to Rule 1.7(a)(2), the panel did not find a significant risk of material limitation either: prosecuting for one client while defending a different client charged by a different city, even in the same courtroom, does not by itself create such a risk, quoting Comment 23's point that a legal position for one client creating precedent that could affect another client in an unrelated matter is not itself a conflict; a conflict requires a significant risk that action for one client will materially limit the lawyer's effectiveness for another, such as when a ruling favoring one client would seriously weaken a position taken for the other. The panel added that a defendant's constitutional right to counsel of choice reinforced its conclusion, while cautioning that a genuine conflict could still arise on different facts and must be assessed case by case.
In practice
The opinion holds that serving as a part-time prosecutor for one municipality does not automatically disqualify a lawyer from privately defending clients charged by a different municipality, even when both prosecute in the same courtroom, because the defendant in the second case is not adverse to the first municipality and the mere overlap of venue does not create a significant risk of material limitation under Rule 1.7(a)(2). The opinion draws a sharp line at representing someone the prosecutor's own municipal client has charged, which remains squarely barred.
Common questions
Q: I prosecute for City A part time. Can I defend someone charged by a different city, City B, in my private practice?
A: Yes, according to the opinion, there is no per se bar; the City B defendant is not adverse to City A, so Rule 1.7(a)(1) is not triggered, and the opinion did not find a significant risk of material limitation under Rule 1.7(a)(2) either.
Q: What if the person I want to defend was actually charged by my own city, City A?
A: That is squarely barred. The opinion cites its own Opinions 90-36 and 90-14, holding that a part-time city solicitor, and the solicitor's firm, may not represent anyone charged by that same city, because that individual is directly adverse to the city-client.
Q: Does it matter that both cities' cases are heard in the same courtroom on the same day?
A: Not by itself. The opinion holds that trying cases for different clients in the same venue does not automatically create a Rule 1.7(a)(2) material-limitation conflict; the analysis instead turns on whether a decision favoring one client would concretely weaken the lawyer's position for the other.
Background and rules framework
The opinion applies Rhode Island Rule 1.7 (Conflict of Interest: Current Clients). Rule 1.7(a)(1) bars representation directly adverse to another client; Rule 1.7(a)(2) bars representation carrying a significant risk of material limitation from the lawyer's duties to another client, a former client, a third person, or a personal interest. Comment 23 clarifies that a legal position creating adverse precedent for an unrelated client is not itself a conflict; the conflict requires a significant risk that the lawyer's action for one client will materially limit effectiveness for the other. Rule 1.7(b) allows proceeding despite a conflict under specified conditions including informed written consent.
Citations and references
Rules of Professional Conduct:
- MR 1.7(a)(1) (direct adversity conflict)
- MR 1.7(a)(2) (material limitation conflict) and Comment 23 (precedent effects versus a true material-limitation risk)
- MR 1.7(b) (conditions for proceeding despite a conflict)
Statutes:
- None cited.
Cases:
- None cited.
Other opinions cited:
- Rhode Island Supreme Court Ethics Advisory Panel Op. 90-36 (1990): neither a part-time city solicitor nor members of her firm may represent a person charged criminally by the city.
- Rhode Island Supreme Court Ethics Advisory Panel Op. 90-14 (1990): if a lawyer accepts a position as city solicitor, the lawyer and all firm members may not represent a client whose position is directly adverse to the city.
See also
- Alabama Ethics Op. 1993-09: Part-time assistant district attorney's representation of homicide victim's estate discussed under Rule 1.11
- Rhode Island Ethics Advisory Panel Op. 2013-04: A City Council Member May Represent Clients Charged by the City, With Rule 1.7(b) Written Waivers and a Co-Defendant Conflict Check
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%2014-06.pdf
Original opinion text
Final
Rhode Island Supreme Court
Ethics Advisory Panel Op. 2014-06
Issued July 23, 2014
FACTS
The inquiring attorney is employed on a part-time basis as a solicitor for City A.
He/she is paid hourly. As a part-time solicitor, the inquiring attorney prosecutes one day
a week misdemeanor criminal offenses that are charged by the city's police department.
The inquiring attorney also has a private law practice which consists primarily of
criminal defense work throughout the various courts in the State. The inquiring attorney
seeks the Panel's advice about whether it is a conflict of interest to represent in his/her
private practice an individual who is charged by the police department of City B. The
misdemeanor cases of City A and of City B are heard before the same division of the
district court.
ISSUE PRESENTED
Is it a conflict of interest for the inquiring attorney, who is a part-time prosecuting
attorney for City A, to represent an individual who is charged with a misdemeanor by
City B, where both cases will be heard in the same division of the district court?
OPINION
Rule 1.7 of the Rules of Professional Conduct does not per se prohibit the
inquiring attorney, who serves as a part-time prosecutor for City A from representing a
criminal defendant who is charged by City B where both matters are heard in the same
division of the district court. The inquiring attorney must determine in each case on the
basis of its particular facts, whether the representations are directly adverse, or whether
there is a significant risk that the representations will be materially limited.
REASONING
Rule 1.7 of the Rules of Professional Conduct is pertinent to this inquiry. The
Rules 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:
Final Op. #2014-06
Page | 2
(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.
Accepting a position as a part-time solicitor of City A makes City A a client of the
inquiring attorney. As a private attorney the inquiring attorney seeks to represent an
individual charged with a misdemeanor by City B. Rule 1.7 requires an examination of
whether the representation of one client will be directly adverse to another client (Rule
1.7(a)(1), and whether the representation of one client presents a significant risk that the
representation of another current client will be materially limited (Rule 1.7(a)(2)).
In the instant inquiry, the representation of the individual charged and prosecuted
by City B is not directly adverse to the representation of City A. The individual is not in a
position adverse to City A. The interests of the individual defending against a criminal
charge made by a City B police officer are not adverse to the interests of City A in the
prosecution of individuals charged with misdemeanors by City A police officers.
Therefore, there exists no conflict of interest under Rule 1.7(a)(1), in the inquiring
attorney's proposed representation of a criminal defendant charged by City B.
By contrast, a prohibited conflict of interest under Rule 1.7(a)(1) would exist if a
prosecuting attorney for City A were to take on the representation of an individual charged
with a misdemeanor by City A, as an individual charged by City A is in a position adverse
to City A. See Rhode Island Supreme Court Ethics Advisory Panel Opinion 90-36 (1990)
(neither part-time city solicitor, nor members of her law firm may represent a person
charged criminally by the city); Rhode Island Supreme Court Ethics Advisory Panel
Opinion 90-14 (1990) (if a lawyer accepts any position as city solicitor, lawyer and all
members of her firm may not represent a client whose position is directly adverse to the
city).
Final Op. #2014-06
Page | 3
Even where the interests of two or more current clients are not directly adverse, a
conflict of interest may exist pursuant to Rule 1.7(a)(2). Pursuant to sub-paragraph (2) of
Rule 1.7, a conflict of interest exists if there is a significant risk that the representation of
one client will be materially limited by the lawyer's responsibilities to another client, a
former client or a third person, or by the lawyer's personal interests.
The Panel does not believe that there is a significant risk that the inquiring
attorney's representation of an individual charged and prosecuted by City B will be
materially limited by his/her representation of City A in prosecuting individuals charged
by City A, or vice versa. That the inquiring attorney prosecutes for one client in one case
and defends a criminal who is charged by City B in another case, even in the same
division of the district court, does not per se materially limit either representation.
Comment [23] states:
The mere fact that advocating a legal position on
behalf of one client might create precedent adverse
to the interests of a client represented by the lawyer
in an unrelated matter does not create a conflict of
interest. A conflict of interest exists, however, if
there is a significant risk that a lawyer's action on
behalf of one client will materially limit the
lawyer's effectiveness in representing another client
in a different case; for example, when a decision
favoring one client will create a precedent likely to
seriously weaken the position taken on behalf of the
other client.
That is not to say that a conflict of interest under Rule 1.7 could never arise for the
inquiring attorney. A determination of whether a conflict of interest exists is fact specific
and must be decided on a case-by-case basis. In the absence of an actual conflict of
interest which is based on particular facts giving rise to a direct adversity, or to a
significant risk of material limitation of one representation by another representation, the
Panel takes the position that Rule 1.7 does not per se prohibit the inquiring attorney's
concurrent representation of City A as its part-time prosecutor, and the representation of a
criminal defendant charged by City B. Even where both matters are heard before the same
division of the district court, the rule does not prohibit the concurrent representations. The
focus of conflicts of interest analysis under Rule 1.7 is loyalty to every client and effective
representation, both of which the Panel believes can be accomplished in the circumstances
presented in this inquiry. The Panel is further guided in its opinion by a defendant's
fundamental right to his or her choice of counsel under the federal and state constitutions.
Accordingly, the Panel concludes that Rule 1.7 does not per se prohibit the
inquiring attorney, who is a part-time prosecutor for City A, from representing a criminal
defendant who is charged by City B, where both matters are heard in the same division of
the district court. The inquiring attorney must determine in each case on the basis of its
Final Op. #2014-06
Page | 4
particular facts whether the representations are directly adverse or whether there is a
significant risk that the representations will be materially limited.
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.
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