As town solicitor, can I represent the town council, zoning board, and a committee at once in a variance application where the committee seeks relief the zoning ordinance bars?

Plain-English summary

The inquiring attorney is a Town Solicitor who represents the Zoning Board, Town Council, and various boards and committees, including the Recreation Committee. The Recreation Committee asked the Town Council to seek a dimensional variance from the Zoning Board for a sign exceeding the municipality's square-footage allowance; the Town Council instead directed the Recreation Committee to seek the variance itself. The solicitor asked whether he or she may represent all three entities in connection with the variance application.

The panel concluded it may not. Under Rule 1.7(a)(1), a concurrent conflict exists when the representation of one client will be directly adverse to another. Because the Recreation Committee seeks relief prohibited by the municipality's zoning ordinance, its interest is directly adverse to the interests of the Town Council and the Zoning Board, so a concurrent conflict of interest exists among the three entities.

The panel further concluded the conflict is non-waivable. Although a concurrent conflict can sometimes be waived when the conditions of Rule 1.7(b) are met, the panel reasoned the solicitor cannot provide legal advice to the municipal entities about waiver given their adverse interests. Because the solicitor has routinely represented the Town Council and Zoning Board, the Recreation Committee must be represented by independent counsel.

In practice

Under this opinion, a town solicitor cannot represent multiple municipal entities in a single matter where their positions diverge. The panel held that the Recreation Committee's pursuit of relief barred by the zoning ordinance made it directly adverse to the Town Council and Zoning Board, creating a concurrent conflict under Rule 1.7(a)(1). It held the conflict non-waivable because the solicitor could not advise the entities on waiver given their adverse interests, and it directed that the Recreation Committee obtain independent counsel while the solicitor continues to represent the Council and Zoning Board.

Common questions

Q: Can one town solicitor represent several municipal bodies in the same variance application?

A: Not where their interests diverge. The panel concluded the solicitor may not represent the Town Council, Zoning Board, and Recreation Committee together because the Committee's requested relief is directly adverse to the other entities under Rule 1.7(a)(1).

Q: Why is the Recreation Committee adverse to the other bodies?

A: Because it seeks a variance for a sign that exceeds the municipality's zoning allowance, relief prohibited by the ordinance. The panel concluded that puts the Committee directly adverse to the Town Council and Zoning Board.

Q: Could the entities consent to waive this conflict?

A: No. The panel concluded the conflict is non-waivable because the solicitor cannot provide the entities legal advice about waiver given their adverse interests.

Q: What is the solution?

A: The panel directed that, because the solicitor has routinely represented the Town Council and Zoning Board, the Recreation Committee must be represented by independent counsel.

Background and rules framework

The opinion applies Rule 1.7 (Model Rule 1.7, conflict of interest: current clients). Rule 1.7(a)(1) finds a concurrent conflict where one client's representation is directly adverse to another, and Rule 1.7(b) permits waiver only when its conditions (including the lawyer's reasonable belief in competent, diligent representation and each client's informed written consent) are met. The panel grounded its loyalty analysis in Rhode Island case law and its own prior Opinion 90-36 on a party's position being adverse to the municipality in a zoning matter.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest: current clients; direct adversity under 1.7(a)(1); waiver conditions under 1.7(b); Comment [6])
• RI RPC 1.7

Statutes:

• Municipal zoning ordinance, referenced as the source of the square-footage limit; not quoted.

Cases:

• Markham Concepts, Inc. v. Hasbro, Inc., 196 F. Supp. 3d 345 (D.R.I. 2016), Rule 1.7 grounded in the duty of loyalty.
• DeCurtis v. Visconti, Boren & Campbell, Ltd., 152 A.3d 413 (R.I. 2017), one attorney cannot ethically represent both parties where interests are adverse.

Other opinions cited:

• RI EAP Op. 90-36 (1990): a party to a city's zoning board action occupies a position adverse to the city.

See also

• RI EAP Op. 2024-10: Town Solicitor May Advise Adverse Councilor to Get Separate Counsel
• RI EAP Op. 2025-04: Associate's Assistant-Solicitor Role Does Not Impute a Conflict

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-2022-03.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. 2022-3
Issued November 17, 2022

FACTS

The inquiring attorney is the Town Solicitor for a municipality. In that capacity, he/she represents the Zoning Board, Town Council, and various Boards and Committees. Although he/she has not previously represented it, the Recreation Committee is one such committee that the attorney is tasked with representing. He/she states that the Recreation Committee requested that the Town Council seek a dimensional variance from the Zoning Board. However, the Town Council directed the Recreation Committee to seek the variance itself. The variance is to allow for a sign that exceeds the municipality's square feet allowance as set forth in its Zoning Ordinance.

ISSUE PRESENTED

The inquiring attorney asks whether it is permissible for him/her to represent the Town Council, Recreation Committee, and Zoning Board in connection with the dimensional variance application.

OPINION

It is not permissible under the Rules of Professional Conduct for the inquiring attorney to represent all three of the municipality's entities in connection with the dimensional variance application.

REASONING

Rule 1.7 of the Rules of Professional Conduct entitled "Conflict of Interest: Current Clients" applies. It states:

(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.

"Rule 1.7 is grounded primarily upon the attorney's duty of loyalty to his or her client." See Markham Concepts, Inc. v. Hasbro, Inc., 196 F. Supp. 3d 345, 349 (D.R.I. 2016) (interpreting Rhode Island Rule of Professional Conduct 7.1). That "[l]oyalty to a current client prohibits undertaking representation directly adverse to that client without that client's informed consent." Rule 1.7 Comment [6]. Where the parties' interests are adverse, "one attorney cannot ethically represent both parties." DeCurtis v. Visconti, Boren & Campbell, Ltd., 152 A.3d 413, 425 (R.I. 2017).

The inquiring attorney asks whether he/she may represent all three municipality entities in connection with the dimensional variance application. It is the opinion of the Panel that such representation would be inconsistent with the Rules of Professional Conduct.

Rule 1.7(a)(1) provides that a concurrent conflict of interest exists if "the representation of one client will be directly adverse to another client." Here, the Recreation Committee is seeking relief that is prohibited by the municipality's Zoning Ordinance and, therefore, its interest is directly adverse to those of the Town Council and Zoning Board. See Ethics Advisory Panel Op. 90-36 (1990) (party to city's zoning board action occupies position adverse to city). As a result, a concurrent conflict of interest exists.

Further, although in some instances a concurrent conflict of interest can be waived if the requirements of Rule 7.1(b) are met, the Panel is of the opinion that the conflict of interest at issue cannot be waived. This is because the inquiring attorney cannot provide legal advice to the municipal entities as to the issue of waiver given their adverse interests.

The Panel concludes that the proposed representation presents a non-waivable conflict under Rule 1.7(a) and (b) and is ethically prohibited. As the inquiring attorney has routinely represented the Town Council and Zoning Board, the Recreation Committee must be represented by independent counsel.