I sit part-time as a municipal court judge for a city, and I also run a law firm. Can lawyers in my firm represent my son in a Superior Court lawsuit against that same city?

Plain-English summary

The inquiring attorney is a part-time municipal court judge in a city and also the principal lawyer in a law firm. The attorney's son intends to sue the city in Superior Court over his termination from city employment. Lawyers in the attorney's firm already represented the son in related arbitration and will handle the Superior Court action. The judge has acquired no confidential information about the city as a municipal judge and will be screened from the son's case.

The panel concluded there is no conflict under Rule 1.11 or Rule 1.7. Although Rule 1.11 by its terms addresses successive government and private employment, the panel reasoned, citing its Opinion 96-13 (1996), that the rule's rationale applies equally to concurrent government and private employment. On these facts, the son's matter was arbitrated and will proceed in Superior Court, not in the city's municipal court, and there is nothing to indicate the judge participated or will participate personally and substantially in the son's matter as a municipal judge. The judge also acquired no disqualifying confidential government information about the city. The panel therefore found no Rule 1.11 conflict.

Turning to Rule 1.7, the panel found no concurrent conflict of interest. There is no direct adversity under Rule 1.7(a)(1) because the city is not a client of the judge or the firm. And there is no material limitation under Rule 1.7(a)(2), because the panel did not believe the judge's responsibilities to the city as a municipal court judge would materially limit the firm's representation of the son. The panel limited its guidance to the Rules of Professional Conduct and expressly declined to reach the Code of Judicial Conduct or the State Ethics Code.

In practice

Under this opinion, and under the Rhode Island rules as they stood at the time, a part-time municipal judge's firm is not barred from suing the city where the judge sits, provided the judge did not participate personally and substantially in the matter and holds no disqualifying confidential government information. The panel applied Rule 1.11's rationale to concurrent government and private roles and found no disqualification on these facts, and it found no Rule 1.7 conflict because the city is not a client and the judge's municipal-court role would not materially limit the firm's representation. The panel confined its opinion to the Rules of Professional Conduct and noted it did not address the Code of Judicial Conduct or the State Ethics Code, which may bear separately on the question.

Common questions

Q: Can a part-time municipal judge's law firm sue the city where the judge sits?

A: The panel said yes on these facts. It found no conflict under Rule 1.11 or Rule 1.7 because the judge did not participate personally and substantially in the matter, holds no disqualifying confidential government information, and the city is not a client of the judge or firm.

Q: Does Rule 1.11 apply when the government and private roles are held at the same time?

A: The panel said yes. Although Rule 1.11 is written for successive employment, the panel reasoned (citing its Opinion 96-13) that the rule's rationale applies to concurrent government and private employment as well.

Q: Why is there no Rule 1.7 conflict?

A: The panel found no direct adversity under Rule 1.7(a)(1) because the city is not a client, and no material limitation under Rule 1.7(a)(2) because the judge's responsibilities to the city as a municipal judge would not materially limit the firm's representation of the son.

Q: Did the panel address judicial-conduct rules?

A: No. The panel expressly limited its guidance to the Rules of Professional Conduct and did not reach the Code of Judicial Conduct or the State Ethics Code.

Background and rules framework

The opinion applies Rule 1.11 (Model Rule 1.11, special conflicts for former and current government officers and employees), which the panel extended by rationale to concurrent government and private employment, and Rule 1.7 (Model Rule 1.7, conflict of interest: current clients). Under Rule 1.11, disqualification turns on personal and substantial participation in the matter and possession of confidential government information. Under Rule 1.7(a), a concurrent conflict requires either direct adversity to another client or a significant risk of material limitation. The panel expressly did not interpret the Code of Judicial Conduct or the State Ethics Code.

Citations and references

Rules of Professional Conduct:

• MR 1.11 (special conflicts for former and current government officers and employees)
• MR 1.7 (conflict of interest: current clients)
• RI RPC 1.11, 1.7

Statutes:

• None quoted (the opinion refers generally to the State Ethics Code without citing a provision).

Cases:

• None cited.

Other opinions cited:

• RI EAP Op. 96-13 (1996) (Rule 1.11's rationale applies to concurrent government and private employment)

See also

• RI EAP Op. 2024-11: No Conflict Representing Clients in Unrelated Matters Before an Opposing Lawyer-Judge
• RI EAP Op. 2016-02: Former City Solicitor Representing Private Clients Before City Boards
• RI EAP Op. 2025-02: Representing a Client Before a Board Where a Screened Partner Is a Member

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%2016-03.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Rhode Island Supreme Court
Ethics Advisory Panel Op. 2016-03
Issued April 28, 2016

FACTS

The inquiring attorney is a part-time municipal court judge in City, and also is the principal lawyer in a law firm. The inquiring attorney's son will be filing a lawsuit in Superior Court against City relating to his termination of city employment. Attorneys in the inquiring attorney's law firm represented his/her son in related arbitration proceedings. The same lawyers will represent the son in the Superior Court action. The inquiring attorney has not acquired confidential information about City during his tenure as a municipal court judge. The inquiring attorney states that he/she will be screened from his/her son's case if lawyers in his/her law firm represent his son.

ISSUE PRESENTED

The inquiring attorney, who is a part-time municipal judge for City, asks whether lawyers in his/her law firm may represent his/her son in a lawsuit against City.

OPINION

It is not a conflict of interest under Rules 1.11 or 1.7 for the law firm of the inquiring attorney, who is also a part-time municipal court judge in City, to represent the inquiring attorney's son in a Superior Court lawsuit against City.

REASONING

The inquiring attorney is a part-time municipal court judge and also has a private law practice. Two Rules of Professional Conduct must be considered to determine whether a conflict of interest exists under these facts, Rule 1.11 entitled "Special conflicts of interest for former and current government officers and employees" and Rule 1.7 entitled "Conflict of interest: Current clients." Rule 1.11 states in pertinent part as follows.

Rule 1.11. Special conflicts of interest for former and current government officers and employees. (a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government:

(1) is subject to Rule 1.9(c); and

(2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.

(b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:

(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.

(c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this Rule, the term "confidential government information" means information that has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom.

(e) As used in this Rule, the term "matter" includes:

(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties, and

(3) any other matter covered by the conflict of interest rules of the appropriate government agency.

In applicable part, Rule 1.7 states:

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.

While the language of Rule 1.11 describes successive government and private employment, the Panel is of the opinion that the rationale of the Rule applies as well to concurrent government and private employment. See R.I. Supreme Court Ethics Advisory Panel Op. 96-13 (1996). Attorneys in the inquiring attorney's law firm are representing the inquiring attorney's son in a claim against City for damages arising out of termination from City employment. The matter has been arbitrated, and will be the subject of a lawsuit in Superior Court. The matter is not one which has been or will be litigated in City's municipal court. The Panel does not believe that there is a conflict of interest under Rule 1.11. There are no facts to indicate that the inquiring attorney, in the discharge of his duties as a municipal court judge, has participated personally and substantially, or will participate personally and substantially, in his son's matter. Further, the inquiring attorney has not acquired disqualifying confidential information about City in his role as municipal court judge.

Finally, the Panel believes that there is no concurrent conflict of interest under Rule 1.7 presented by this inquiry. There is no direct adversity under Rule 1.7(a)(1), as City is not a client of the inquiring attorney or the law firm. In addition, there is no material limitation under Rule 1.7(a)(2), as the Panel does not believe that the inquiring attorney's responsibilities to City as a municipal court judge will materially limit the law firm's representation of his/her son in the lawsuit.

The Panel concludes that it is not a conflict of interest under Rules 1.11 or 1.7 for the law firm of the inquiring attorney, who also is a part-time municipal court judge in City, to represent the inquiring attorney's son in a Superior Court lawsuit against City. The Panel's guidance is restricted to interpretations of the Rules of Professional Conduct and does not extend to issues under the Code of Judicial Conduct, the State Ethics Code, or any other rules, regulations or laws that may have bearing on the issues raised by this inquiry.