In an immigration matter, my client's sibling (whom I don't represent) told me the sibling had filed a fraudulent application in my client's name years ago. Do I now have a conflict of interest that forces me to withdraw from representing the client?

Plain-English summary

The inquiring attorney represents a client in an immigration matter and, in the course of it, filed an application for adjustment of status and attended the client's USCIS interview. At the interview, USCIS revealed an old special agricultural worker application in the client's name from the 1980s, bearing the client's identifying information and a signature and photograph resembling the client's; the client denied filing it or knowing of it. Afterward, the client's sibling (whom the attorney does not represent) told the attorney that the sibling had filed that application in the client's name to gain the client entry, and that the client did not know. The attorney advised the sibling to retain separate counsel and asked whether being privy to the sibling's actions now requires withdrawal from the client's matter.

The panel concluded no withdrawal is required. It analyzed the question under Rule 1.7, which governs concurrent conflicts of interest and is grounded in the duty of loyalty. The threshold step is identifying the client. Here, the attorney represents only the client in the immigration matter and has affirmed that no attorney-client relationship exists with the sibling. Because the attorney told the sibling to obtain separate counsel, no prospective attorney-client relationship exists either.

Citing Rule 1.18, Comment [2], the panel noted that a person who unilaterally communicates information to a lawyer without any reasonable expectation that the lawyer is willing to discuss forming a client-lawyer relationship is not a "prospective client." The absence of any current or prospective attorney-client relationship with the sibling precludes a Rule 1.7(a) conflict (citing Opinion 2023-03, which found no conflict where the adverse individual was not the attorney's client). The panel therefore concluded the attorney need not withdraw and may continue representing the client in the ongoing immigration matter.

In practice

Under this opinion, information a nonclient volunteers to a lawyer does not, by itself, create a conflict of interest requiring withdrawal, because a Rule 1.7(a) conflict presupposes an attorney-client relationship with the adverse person. Where the lawyer represents only the original client and has directed the volunteering nonclient to retain separate counsel (so no prospective-client relationship arises under Rule 1.18), the panel held there is no conflict and the lawyer may continue the representation.

Common questions

Q: Does a nonclient's disclosure of wrongdoing create a conflict that forces me to withdraw?

A: On these facts, no. The panel held that because the disclosing sibling was neither a current nor a prospective client, there was no attorney-client relationship to ground a Rule 1.7(a) conflict, so withdrawal was not required.

Q: Why was the sibling not a "prospective client" under Rule 1.18?

A: The attorney told the sibling to retain separate counsel, and Comment [2] provides that someone who unilaterally shares information without a reasonable expectation that the lawyer will discuss forming a client-lawyer relationship is not a prospective client.

Q: Can I keep representing my client after learning this?

A: Yes. The panel concluded the attorney need not withdraw and may continue representing the client in the ongoing immigration matter.

Background and rules framework

The opinion applies Rule 1.7 (Model Rule 1.7), which prohibits representation involving a concurrent conflict of interest and presupposes that the adverse person is a client. It also applies Rule 1.18 (Model Rule 1.18) on duties to prospective clients, relying on Comment [2] to conclude that a person who unilaterally communicates information, without a reasonable expectation of forming a client-lawyer relationship, is not a prospective client and so cannot generate a conflict.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflicts of interest)
• MR 1.18 (duties to prospective clients)
• RI RPC 1.7, 1.18

Statutes:

• None cited.

Cases:

• Markham Concepts, Inc. v. Hasbro, Inc., 196 F. Supp. 3d 345, 349 (D.R.I. 2016), Rule 1.7 grounded in the duty of loyalty

Other opinions cited:

• RI EAP Op. 2023-03 (no conflict where the adverse individual, a municipal board member, was not the attorney's client)

See also

• RI EAP Op. 2010-01: Estranged Spouse Present at an Initial Meeting, No Conflict
• RI EAP Op. 90-07: Implied Attorney-Client Relationship From an Uncharged Consultation

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-2024-06.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. 2024-06
Issued July 11, 2024

FACTS

The inquiring attorney represents a client in an immigration matter. In the course of the representation, the inquiring attorney has prepared and filed an application for adjustment of status for the client and attended the client's personal interview with U.S. Citizenship and Immigration Services ("USCIS"). During the interview, USCIS informed the inquiring attorney that it had located an application for special agricultural worker status in his or her client's name dating from the 1980s. The application contained the client's name, date of birth, parents' names, and birth certificate, as well as a signature and photograph that looked like the client's. Nonetheless, the client denied having filed the application or having any knowledge of it whatsoever.

Following the interview, the inquiring attorney learned from the client's sibling, who the inquiring attorney does not represent, that the sibling had filed the special agricultural worker status application in his or her client's name in an attempt to gain the client entry into the United States. The inquiring attorney reports that the client has no knowledge of his or her sibling's actions.

Based on this information, the inquiring attorney informed the client's sibling that he or she should retain counsel to represent his or her interests in this matter. The inquiring attorney is concerned that he or she must now withdraw from representing the client because he or she is privy to the client's sibling's actions.

ISSUE PRESENTED

The inquiring attorney asks whether he or she must withdraw from representing the client under the Rules of Professional Conduct?

OPINION

It is the Panel's opinion that the inquiring attorney need not withdraw from representing the client under the Rules of Professional Conduct.

REASONING

Concurrent conflicts of interest are governed by Rule 1.7 of the Rules of Professional Conduct, which provides that:

(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 1.7). "Resolution of a conflict of interest problem under this Rule requires the lawyer to: 1) clearly identify the client or clients; 2) determine whether a conflict of interest exists; 3) decide whether the representation may be undertaken despite the existence of a conflict, i.e., whether the conflict is consentable; and 4) if so, consult with the clients affected under paragraph (a) and obtain their informed consent, confirmed in writing." Rule 1.7, Comment [2].

In this case, the inquiring attorney asks whether the client's sibling's revelation of information germane to the representation has created a conflict of interest, such that the inquiring attorney must withdraw from representing the client. The inquiring attorney indicates that he or she has undertaken to represent the client in an ongoing immigration matter. The client's sibling has attended at least one meeting with the inquiring attorney, during which the sibling divulged information to the inquiring attorney germane to the representation. However, the inquiring attorney has affirmed that no attorney-client relationship exists between him or her and the client's sibling. Similarly, because the inquiring attorney has made clear to the client's sibling that he or she should retain counsel to represent his or her interests, no prospective attorney-client relationship exists either. See Rule 1.18, Comment [2] (recognizing that "[a] person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a 'prospective client' . . ."). The absence of such a relationship or the prospect of one precludes the creation of a conflict of interest under Rule 1.7(a). See Rhode Island Ethics Advisory Panel Opinion 2023-03 (finding no conflict of interest in the inquiring attorney's representation of a municipal agency in a dispute with one of its board members because the board member was not a client of the inquiring attorney). Accordingly, the Panel concludes that the inquiring attorney need not withdraw from and may continue to represent the client in the ongoing immigration matter.