I'm a town solicitor and a Town Councilor whose interests have turned adverse to the Council is undermining our case and may draw sanctions against the Council. How do I proceed under the ethics rules?

Plain-English summary

The inquiring attorney serves as town solicitor and represents the Town Council, including in an ongoing civil action in which opposing counsel sought to depose one of the Councilors in his or her official capacity. That Councilor, who had publicly expressed distrust of the solicitor for years, disrupted the deposition by stating on the record that the solicitor inadequately represented him or her and refusing to proceed. The Councilor then engaged in a series of "ultra vires" acts: misrepresenting the solicitor's work to the Council, contacting opposing counsel directly (including saying the solicitor no longer represented the Councilor and asking to reschedule the deposition after the next election), obtaining a potentially fraudulent medical note to avoid the deposition, filing a pro se motion for a protective order without telling the solicitor, and making an untruthful statement to the court. The Council, though aware, has neither addressed the behavior nor retained separate counsel for the Councilor.

The panel concluded that Rule 1.13 governs. A lawyer for an organization represents the organization acting through its authorized constituents, and Comment [9] confirms the duty applies to governmental organizations. The panel has consistently reasoned that town solicitors represent the municipality and its constituent bodies, not individual Council members (citing Ops. 2002-02 and 92-41). The Councilor's conduct materially interfered with the solicitor's representation of the Council and raised the risk of sanctions against the Council, triggering the solicitor's duty under Rule 1.13(b) to proceed as reasonably necessary in the organization's best interest.

Because the appropriate "higher authority," the Town Council, is already aware of the Councilor's conduct but has not acted, the risk to the Council remains live. Under Comment [10], where the organization's interests are adverse to a constituent's, the lawyer should advise that constituent that the lawyer cannot represent him or her and that the constituent may wish to obtain independent representation, taking care to ensure the constituent understands that their discussions may not be privileged. The panel found the solicitor should inform the Councilor that his or her interests are adverse, that the solicitor no longer represents the Councilor in the civil action, that the Councilor should retain separate counsel, and that their discussions about the action are no longer privileged.

The panel added that Rule 1.13(c) permits an attorney to disclose information otherwise confidential under Rule 1.6 if the organization's highest authority fails to remedy a threatened or ongoing action clearly in violation of law that the lawyer reasonably believes is reasonably certain to substantially injure the organization, limited to what the lawyer reasonably believes necessary to prevent that injury. The panel noted the governmental context can shift the balance toward disclosure (Comment [9]), and concluded that if the Council persists in failing to act, the solicitor may find it necessary to disclose certain information to address the sanction risk, while remaining mindful of Rule 1.6's limits.

In practice

Under this opinion, a Rhode Island town solicitor represents the Town Council as an organization, not an individual Councilor, so when a Councilor's interests become adverse to the Council the solicitor should tell the Councilor that the solicitor cannot represent him or her, that separate counsel should be retained, and that their communications may not be privileged. The panel held that where the highest authority (the Council) knows of the conduct and fails to act, and the solicitor reasonably believes the Councilor's expected conduct is reasonably certain to cause substantial injury to the Council, Rule 1.13(c) permits disclosure of information relating to the representation to the limited extent reasonably necessary to prevent that injury, subject to Rule 1.6.

Common questions

Q: As a town solicitor, who is my client, the Town Council or the individual Councilors?

A: The panel held the solicitor's client is the Town Council as an organization, not individual Council members, applying Rule 1.13 and Comment [9] and citing its prior Opinions 2002-02 and 92-41.

Q: A Councilor's conduct is undermining our case. What does Rule 1.13 require of me?

A: The panel said the conduct triggers the Rule 1.13(b) duty to proceed as reasonably necessary in the organization's best interest, ordinarily by referring the matter to higher authority; here the Council was already aware, so the solicitor should advise the Councilor to obtain separate counsel because their interests are now adverse.

Q: Can I disclose confidential information to protect the Town Council?

A: The panel said Rule 1.13(c) permits it if the Council fails to act and the solicitor reasonably believes the Councilor's expected conduct is reasonably certain to substantially injure the Council, but only to the extent reasonably necessary to prevent the injury and mindful of Rule 1.6's limits.

Q: Do I have to tell the Councilor our conversations are no longer privileged?

A: Yes. The panel, citing Comment [10], said the solicitor should ensure the Councilor understands that, given the adversity of interest, the solicitor cannot represent the Councilor and their discussions about the civil action are no longer privileged.

Background and rules framework

The opinion applies Rule 1.13 (Model Rule 1.13, the organization as client), reproducing its text and relying on Comments [2], [4], [9], and [10]. It reads Rule 1.13(b) to impose a duty to act in the organization's best interest when a constituent's conduct is likely to cause substantial injury, and Rule 1.13(c) to permit disclosure of information otherwise confidential under Rule 1.6 (Model Rule 1.6) when the highest authority fails to act on conduct clearly violating law that is reasonably certain to injure the organization. Rule 1.13(g) cross-references Rule 1.7 (Model Rule 1.7) for dual representation of an organization and its constituents.

Citations and references

Rules of Professional Conduct:

• MR 1.13 (organization as client)
• MR 1.6 (confidentiality of information)
• MR 1.7 (conflicts of interest; referenced via Rule 1.13(g))
• RI RPC 1.13, 1.6, 1.7

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• RI EAP Op. 2002-02 (town solicitor represents the municipality and its constituent bodies, not individual Council members)
• RI EAP Op. 92-41 (same principle for town solicitors representing constituent bodies)

See also

• RI EAP Op. 2010-04: Representing a Municipality and Adverse Matters
• RI EAP Op. 2024-09: Firm as Municipal Prosecutor and Private Clients Before Boards
• ABA Formal Op. 06-443: Representing an Organization and Its Inside Counsel

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-2024-10.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. 2024-10
Issued October 16, 2024

FACTS

The inquiring attorney serves as the town solicitor for a certain municipality. His or her duties include representing the municipality's Town Council in various capacities. The inquiring attorney reports that one of the Councilors has repeatedly publicly expressed his or her displeasure with the inquiring attorney's representation of the Town Council, including that he or she distrusts the inquiring attorney, lacks confidence in the inquiring attorney's work, and routinely disapproves of the inquiring attorney's advice. Nonetheless, the Town Council recently renewed the inquiring attorney's contract.

The inquiring attorney currently represents the Town Council in an ongoing civil action in which opposing counsel has sought to depose the Councilor in his or her official capacity. The Councilor met with the inquiring attorney prior to the deposition date to prepare without incident. Once at the deposition, however, the Councilor surprised the inquiring attorney by stating on the record his or her opinion that the inquiring attorney inadequately represents him or her and refused to proceed without the presence of an associate attorney from the inquiring attorney's firm. The deposition was suspended without any questions being asked or answered.

Thereafter, the inquiring attorney reports, the Councilor has engaged in various "ultra vires" conduct including, but not limited to, making misrepresentations to the Town Council regarding the inquiring attorney's representation in the civil suit, communicating with opposing counsel on his or her own initiative (including informing them that the inquiring attorney no longer represents him or her and asking them to reschedule the suspended deposition until after the next local election), obtaining a potentially fraudulent medical note to avoid sitting for the suspended deposition, and refusing to speak with the inquiring attorney.

In addition, the Councilor filed a motion for a protective order in the Superior Court pro se without informing the inquiring attorney. At the initial hearing, a transcript of which the inquiring attorney has reviewed, the Councilor was apparently untruthful to the court in one instance. The inquiring attorney is concerned that in light of the foregoing events, the Councilor may perjure him or herself or engage in other conduct at the next hearing resulting in the imposition of sanctions against the Councilor and/or the Town Council, and, thereby, potentially exposing the inquiring attorney to ethical liability.

The inquiring attorney reports that despite the public nature of the Councilor's behavior, the Town Council has not moved to address the issue. In this vein, the Town Council has denied the councilor's request that a separate attorney be retained to represent him or her.

ISSUE PRESENTED

The inquiring attorney asks for advice on how to proceed in accordance with the Rules of Professional Conduct.

OPINION

It is the Panel's opinion that pursuant to Rule 1.13, the inquiring attorney should advise the Councilor to retain separate counsel to represent his or her interests in the ongoing civil action against the Town Council. The inquiring attorney may also, if he or she reasonably believes that the Councilor's expected conduct at the upcoming Superior Court hearing is reasonably certain to result in substantial injury to the Town Council, disclose information relating to his or her representation of the Councilor at the hearing to the limited extent necessary to forestall injury to the Town Council.

REASONING

Rule 1.13 of the Rules of Professional Conduct pertains to an attorney's representation of an organization:

(a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.

(b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law.

(a) Except as provided in paragraph (d), if:

(1) despite the lawyer's efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and

(2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.

(d) Paragraph (c) shall not apply with respect to information relating to a lawyer's representation of an organization to investigate an alleged violation of law, or to defend the organization or an officer, employee or other constituent associated with the organization against a claim arising out of an alleged violation of law.

(e) A lawyer who reasonably believes that he or she has been discharged because of the lawyer's actions taken pursuant to paragraphs (b) or (c), or who withdraws under circumstances that require or permit the lawyer to take action under either of those paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the organization's highest authority is informed of the lawyer's discharge or withdrawal.

(f) In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing.

(g) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization's consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.

Rule 1.13 encompasses a lawyer's representation of governmental organizations like a town council. See Rule 1.13, Comment [9] (recognizing that "[t]he duty defined in this Rule applies to governmental organizations"). In applying this Rule, the Panel has consistently reasoned that town solicitors represent the municipality and its constituent bodies, not individual Town Council members. See Rhode Island Ethics Advisory Panel Op. 2002-02; Rhode Island Ethics Advisory Panel Op. 92-41; see also Rule 1.13, Comment [2].

In this case, the Councilor's conduct as described by the inquiring attorney has materially interfered with the inquiring attorney's representation of the Town Council in the ongoing civil action. Such conduct includes refusing to sit for a deposition without the presence of an associate attorney from the inquiring attorney's firm thereby causing the suspension of the deposition, obtaining a potentially fraudulent medical note to continue to avoid sitting for the suspended deposition, communicating with opposing counsel to influence the timing of rescheduling the suspended deposition, making misrepresentations to the Town Council about the inquiring attorney's representation in the civil suit, filing a motion for a protective order in the Superior Court as a pro se litigant without informing the inquiring attorney, and making an untruthful statement to the court at the initial hearing. Based on these events, the inquiring attorney believes that the Councilor is likely to behave in manner at subsequent Superior Court hearings that will cause the court to levy sanctions against him or her and/or the Town Council.

The Panel finds that these facts, taken as a whole, implicate the inquiring attorney's duty under Rule 1.13(b) to "proceed as is reasonably necessary in the best interest of the organization." This duty is triggered whenever a lawyer knows that a member of the organization he or she represents "intends to act . . . in a matter related to the representation that is . . . a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization . . . ." The inquiring attorney's fear that the Councilor is likely to draw sanctions from the Superior Court that could redound to the Town Council fits within this paradigm. See Rule 1.13, Comment [4] (noting that "[i]n determining how to proceed under paragraph (b), the lawyer should give due consideration to the seriousness of the violation and its consequences, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters, and any other relevant considerations").

In seeking to redress the risk so identified, Rule 1.13(b) directs that the lawyer consider "refer[ring] the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law." This remedy becomes more imperative "[i]f [the] constituent persists in conduct contrary to the lawyer's advice . . . ." Rule 1.13, Comment [4]. Here, the appropriate "higher authority" to which the inquiring attorney should report the Councilor's conduct is the Town Council. However, the inquiring attorney states that the Town Council is aware of the Councilor's behavior—and has been aware of his or her animus toward the inquiring attorney for years—but has not acted to resolve the situation. The risk of harm to the Town Council as identified by the inquiring attorney therefore remains live and, as such, the inquiring attorney's concomitant duty to act reasonably in the best interests of the Town Council remains undischarged.

Under such circumstances—where "the organization's interest [is] adverse to those of one or more of its constituents," a lawyer "should advise any constituent, whose interest the lawyer finds adverse to that of the organization of the conflict or potential conflict of interest, that the lawyer cannot represent such constituent, and that such person may wish to obtain independent representation." Rule 1.13, Comment [10]. In doing so, the lawyer must take care "to assure that the individual understands that, when there is such adversity of interest, the lawyer for the organization cannot provide legal representation for that constituent individual, and that discussions between the lawyer for the organization and the individual may not be privileged." Id. Thus, the Panel finds that the inquiring attorney should inform the Councilor that in light of the events described herein, his or her interests are adverse to those of the Town Council such that the inquiring attorney no longer represents the Councilor in the civil action and the Councilor should retain separate counsel for him or herself. The inquiring attorney should also inform the Councilor—and ensure that the Councilor understands—that any discussions they may have pertaining to the civil action are no longer privileged.

Relatedly, Rule 1.13(c) permits an attorney to disclose information relating to the representation that would otherwise be confidential under Rule 1.6 if the organization's highest authority refuses or fails to act to remedy "a threatened or ongoing action" that is "clearly a violation of law" and the inquiring attorney "reasonably believes that the violation is reasonably certain to result in substantial injury to the organization." See Rule 1.13(c), Comment [6]. Such disclosure may only be on topics and to the extent the lawyer "reasonably believes necessary to prevent substantial injury to the organization." Rule 1.13(c); see also Rule 1.13, Comment [6] (noting that the violation in question must be "related to the lawyer's representation of the organization"). The suitability of such disclosure is enhanced in the governmental organization context due to the important, public nature of the client and its business. See Rule 1.13, Comment [9] (observing that "in a matter involving the conduct of government officials, a government lawyer may have authority under applicable law to question such conduct more extensively than that of a lawyer for a private organization in similar circumstances. Thus, when the client is a governmental organization, a different balance may be appropriate between maintaining confidentiality and assuring that the wrongful act is prevented or rectified, for public business is involved"). Accordingly, the Panel finds that should the Town Council persist in failing to act here, the inquiring attorney may find it necessary to disclose certain information relating to his or her representation of the Councilor in the underlying civil action to address the risk of sanction against the Town Council engendered by the Councilor's conduct at the upcoming Superior Court hearing. In choosing to invoke this option, the inquiring attorney must remain mindful of the limitations on disclosure imposed by Rule 1.6.