A board member filed an open-meetings complaint against the agency I represent. Can I defend the agency, given the complainant sits on its board?

Plain-English summary

The inquiring attorney represents a quasi-municipal Agency and its governing Board in litigation and in Open Meetings Act and Access to Public Records Act matters. At a recent Board meeting, a Board member attended remotely, but as a member of the public rather than in a Board capacity. After the meeting, that Board member filed an OMA complaint against the Agency with the Attorney General about matters discussed at the meeting, and the attorney was assigned to represent the Agency in responding. The attorney has no specific or confidential information about the complainant, the complaint is not based on any legal advice the attorney gave the Board, and the meeting was recorded on Zoom, so the response will not depend on individual members' memories. The attorney asked whether he or she may represent the Agency against the complaint.

The panel concluded it is permissible. Under Rule 1.13(a), a lawyer retained by an organization represents the organization acting through its authorized constituents, so the attorney-client relationship is between the attorney and the Agency, not its individual Board members. The panel had previously concluded a solicitor's client is the municipality acting through its council, not individual council members; thus the attorney's duty of loyalty runs to the Agency.

Turning to Rule 1.7, the panel noted the first step in a conflict analysis is to identify the client. Because the Board member complainant is not the attorney's client, there is no concurrent conflict of interest precluding the attorney from representing the Agency against the complaint. The panel found significant that the attorney attended the meeting as counsel to the Agency, that the Board member attended as a member of the public, and that the complaint arose from what transpired at the meeting rather than from any legal advice the attorney gave the Board.

In practice

Under this opinion, a lawyer for an organization owes loyalty to the entity, not to its individual constituents, so representing the entity adverse to a constituent is not automatically a conflict. The panel held that under Rule 1.13(a) the Agency, not the Board member, is the client, and that because the complaining Board member is not the attorney's client there is no Rule 1.7 concurrent conflict barring the representation. The panel treated the member's attendance as a member of the public, and the complaint's origin in the meeting rather than in the lawyer's advice, as significant.

Common questions

Q: Is the lawyer's client the agency or its individual board members?

A: The agency. The panel concluded that under Rule 1.13(a) the attorney represents the organization acting through its constituents, so the individual Board member is not the attorney's client.

Q: Does a board member filing a complaint create a conflict for the agency's lawyer?

A: Not here. The panel concluded that because the complaining Board member is not individually the attorney's client, there is no concurrent conflict under Rule 1.7 precluding the attorney from defending the Agency.

Q: What facts did the panel find significant?

A: That the attorney attended the meeting as counsel to the Agency, that the Board member attended as a member of the public, and that the complaint arose from what happened at the meeting rather than from legal advice the attorney gave the Board.

Q: What is the first step in analyzing this kind of conflict?

A: Identifying the client. The panel cited Comment [2] to Rule 1.7 that resolving a conflict problem first requires the lawyer to clearly identify the client or clients.

Background and rules framework

The opinion applies Rule 1.13 (Model Rule 1.13, organization as client), whose paragraph (a) provides that a lawyer retained by an organization represents the organization acting through its duly authorized constituents, and Rule 1.7 (Model Rule 1.7, conflict of interest: current clients), whose paragraph (a) defines a concurrent conflict and whose Comment [2] makes identifying the client the first step. The panel relied on its prior Opinion 2002-02 that a solicitor's client is the municipality acting through its council rather than individual members.

Citations and references

Rules of Professional Conduct:

• MR 1.13 (organization as client; 1.13(a))
• MR 1.7 (conflict of interest: current clients; 1.7(a); Comment [2])
• RI RPC 1.13, RI RPC 1.7

Statutes:

• Rhode Island Open Meetings Act, referenced as the subject of the complaint; not quoted.

Cases:

• None cited.

Other opinions cited:

• RI EAP Op. 2002-02 (2002): a solicitor's client is the municipality acting through its council, not individual council members.

See also

• RI EAP Op. 2025-14: Need Not Resign as Entity Counsel Because a Former Plaintiff Joined the Board
• RI EAP Op. 2025-06: Lawyer-Board-Member May Represent Nonprofit If Not Materially Limited

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-2023-3.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. 2023-3
Issued June 8, 2023

FACTS

The inquiring attorney represents a quasi-municipal agency ("Agency"). He/she has represented the Agency, as well as its governing board ("Board"), in various litigation matters and also in connection with Open Meetings Act ("OMA") and Access to Public Records Act complaints to the Attorney General.

The inquiring attorney was present at a recent meeting of the Board. A member of the Board attended the meeting remotely, via Zoom. He/she was not attending in his/her capacity as a Board member but rather as a member of the public.

After the meeting, that Board member filed an OMA complaint against the Agency with the Attorney General regarding some of the matters discussed at the meeting. The inquiring attorney has been assigned to represent the Agency in responding to the OMA complaint.

The inquiring attorney advises that he/she does not have any specific or confidential information regarding the Board member complainant. Further, the complaint was not based on any legal advice the inquiring attorney gave the Board, including the complainant, whether at this or a previous meeting. Rather, the basis of the OMA complaint is what transpired at the meeting.

The inquiring attorney further notes that the meeting at issue was recorded via Zoom. Therefore, in responding to the OMA complaint, the inquiring attorney will not need to consult the memory of individual Board members or others present at the meeting.

ISSUE PRESENTED

Whether it is permissible for the inquiring attorney to represent the Agency in its response to the OMA complaint when the complainant is a Board member, albeit one who attended the subject meeting in his/her capacity as a member of the public.

OPINION

The Panel concludes that it is permissible for the inquiring attorney to represent the Agency in its response to the OMA complaint. The attorney-client relationship is between the inquiring attorney and the Agency. The Board member, who attended the meeting as a member of the public, is not considered a client of the inquiring attorney for purposes of the Rules of Professional Conduct. As a result, there is no concurrent conflict of interest that would preclude the proposed representation.

REASONING

Rule 1.13(a) of the Rules of Professional Conduct states: "A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents."

Pursuant to Rule 1.13, the attorney-client relationship is between the inquiring attorney and the Agency. Although the complainant is a member of the Agency's Board, he/she is not individually a client of the inquiring attorney. See Ethics Advisory Panel Op. 2002-02 (2002) (concluding that a solicitor's client is the municipality acting through its council and not individual council members). Thus, the inquiring attorney's duty of loyalty is to the Agency and not to its individual Board members.

Rule 1.7 of the Rules of Professional Conduct is entitled "Conflict of Interest: Current Clients." Rule 1.7(a) 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.

The first step in resolving a "conflict of interest problem under this Rule requires the lawyer to . . clearly identify the client or clients." See Rule 1.7, Comment [2].

For the reasons stated, the Board member complainant is not a client of the inquiring attorney. Consequently, there is no concurrent conflict of interest precluding the inquiring attorney from representing the Agency in its response to the OMA complaint.

In reaching this conclusion, the Panel found significant the fact that the inquiring attorney was attending the meeting as legal counsel to the Agency and the Board member was attending remotely in his/her capacity as a member of the public. Further, the OMA complaint emanated from what transpired at the meeting and not any legal advice that the inquiring attorney gave the Board whether at this or a previous meeting.