I'm an assistant solicitor who advised the planning board that denied a project, and the board of appeals (which special counsel advised) upheld that denial. The applicant is now appealing both decisions to Superior Court and wants me disqualified. Can I defend the municipality, the planning board, and the board of appeals together?

Plain-English summary

The inquiring attorney is an assistant solicitor for a municipality whose duties include serving as legal advisor at planning board and zoning board of review meetings. An applicant sought approval of a major land development project; the planning board denied the master plan application, with the inquiring attorney representing the board at that stage. The applicant appealed to the zoning board of review, sitting as the planning board of appeals, which the municipality had retained special counsel to advise; the board of appeals upheld the planning board's denial. The applicant then appealed both decisions to Superior Court, and the municipality wants the inquiring attorney to defend both boards' decisions and the municipality itself. The applicant's counsel argued this would be a conflict of interest.

The panel reviewed the municipality's charter, which directs the solicitor to appear for the municipality in all actions and proceedings brought by or against it, its agencies, officers, or departments. Applying Rule 1.7(a)(1), the panel found no direct adversity: the planning board denied the application and the board of appeals upheld that denial, so the two boards' interests in the applicant's matter are aligned, not adverse. Applying Rule 1.7(a)(2), the panel found no significant risk that representing the planning board would materially limit the representation of the board of appeals, or vice versa, given their aligned positions. Finally, the panel found neither board's interests adverse to the municipality's interests under these facts. On that basis, the panel concluded Rule 1.7 permits the inquiring attorney to represent all three (the municipality, the planning board, and the board of appeals) in the same Superior Court appeal.

In practice

The opinion holds that a municipal solicitor may represent the municipality together with two of its boards on the same appeal, even where the solicitor personally advised one board at the initial stage and separate special counsel advised the other on the internal appeal, so long as the boards' decisions and interests align rather than conflict; the earlier use of different counsel for the two boards during the administrative proceeding does not itself require different counsel once the matter reaches court.

Common questions

Q: I advised the board that made the first-level decision. Can I also defend the appellate board's decision that upheld it, plus the municipality itself, all in one appeal?

A: Yes, according to the opinion, because the appellate board's ruling upholding the original decision is aligned with, not adverse to, the original board and the municipality; Rule 1.7(a)(1) is not triggered.

Q: The opposing party's counsel says this is automatically a conflict. Is that right?

A: The opinion rejects a per se conflict here; it requires the actual direct-adversity and material-limitation analysis under Rule 1.7(a)(1) and (a)(2), and found neither present given the aligned positions of the municipality and both boards.

Q: Does it matter that a different, special counsel represented the board of appeals during the internal administrative appeal?

A: The opinion does not treat that earlier arrangement as creating a conflict for the solicitor's later court representation of both boards together; the panel's analysis turns on whether the parties' litigation positions are adverse, not on who represented whom at each administrative stage.

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. The panel also considered the municipality's charter provision directing the solicitor to appear in all actions brought by or against the municipality, its agencies, officers, or departments.

Citations and references

Rules of Professional Conduct:

• MR 1.7(a)(1) (direct adversity conflict)
• MR 1.7(a)(2) (material limitation conflict)

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
• 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
• Alabama Ethics Op. 2005-01: City attorney who is also defense attorney in city court has waivable conflict of interest

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%2014-07.pdf

Original opinion text

Final

                  Rhode Island Supreme Court
                Ethics Advisory Panel Op. 2014-07
                       Issued August 1, 2014

FACTS

   The inquiring attorney is the assistant solicitor for a municipality. His/her duties

include attendance at the meetings of the municipality's planning board and its zoning
board of review as their legal advisor. An applicant appeared before the planning board
seeking approval of a major land department project. The planning board denied the
master plan application for the project. The applicant appealed the planning board's
decision to the zoning board of review, acting in its capacity as the planning board of
appeals.

   The inquiring attorney represented the planning board at the initial application

stage. The municipality retained special counsel to advise the planning board of appeals
for the applicant's appeal. The planning board of appeals upheld the decision of the
planning board denying the master plan application.

    The applicant has appealed the decisions of the planning board and the planning

board of appeals to the Superior Court. The municipality wants the inquiring attorney to
represent it in the lawsuit to defend the decisions of the planning board and the planning
board of appeals. The applicant's counsel has asserted that it would be a conflict of
interest for the inquiring attorney to defend the decisions of the municipality. Prior to
entering his/her appearance in the case, the inquiring attorney seeks an opinion from this
Panel about whether it is a conflict of interest for him/her to represent the municipality in
the case.

ISSUE PRESENTED

   May the inquiring attorney represent the municipality, its planning board, and the

planning board of appeals which upheld the decision of the planning board, in an
applicant's Superior Court appeal?

OPINION

   Yes. Rule 1.7 permits the inquiring attorney, who is an assistant solicitor, to

represent the municipality, its planning board, and its planning board of appeals, in an
applicant's Superior Court appeal from the decisions of the planning board and the
planning board of appeals.
Final Op. #. 2014-07
Page | 2

   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:
                        (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 Panel has reviewed the section of the municipality's charter relating to the
   duties of a solicitor. Pursuant to the municipality's charter, the solicitor shall appear for
   the municipality in all actions and proceedings brought by or against the municipality, its
   agencies, officers, or departments. The Panel is of the opinion that the facts of this
   inquiry do not give rise to a conflict of interest which would prohibit the proposed
   representation of the municipality, its planning board, and its planning board of appeals.

           The planning board denied the master plan application. The planning board of
   appeals upheld the planning board's decision. The interests of the two boards in the
   applicant's matter are not adverse. Therefore, there is no conflict of interest under Rule
   1.7(a)(1). Neither is there a conflict of interest under Rule 1.7(a)(2), as there is not a
   significant risk that the inquiring attorney's representation of the planning board will
   materially limit the representation of the planning board of appeals, or vice versa.

Final Op. #. 2014-07
Page | 3

   Finally, neither the interests of the planning board nor those of the planning board of
   appeals are adverse to the municipality under these facts.

          Accordingly, the Panel concludes that Rule 1.7 permits the inquiring attorney to
   represent the municipality, its planning board, and its planning board of appeals, in the
   Superior Court appeal from the decisions of the planning board and of the planning
   board of appeals which upheld the decision of the planning board.

           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.

          Lise J. Gescheidt did not participate.