Opposing counsel in my client's divorce is also a probate judge before whom I represent a different client in an unrelated matter. Is that a conflict of interest that forces me to withdraw?

Plain-English summary

The inquiring attorney represents one client ("Client 1") in a divorce proceeding. The lawyer for the opposing party in that divorce is also a probate judge, and the inquiring attorney separately represents a different client ("Client 2") as an heir against a surviving spouse in an unrelated contested probate matter before that judge. The attorney asked whether this situation creates a conflict of interest requiring withdrawal from representing Client 1.

The panel concluded that no conflict exists and the attorney need not withdraw from either representation. Applying Rule 1.7, which is grounded primarily in the lawyer's duty of loyalty, the panel found the interests of Client 1 and Client 2 are not directly adverse because they are unrelated parties in unrelated matters (a divorce proceeding and a contested probate matter). The panel compared Opinion 2006-01, where representing the driver and passenger of a car in unrelated matters was not a conflict because the parties' interests were not directly adverse.

The panel also found neither representation was materially limited by the attorney's responsibilities to the other client or any other party, citing Opinion 2014-06 (no conflict between an attorney's representation of a municipality as its solicitor in criminal matters and of private clients in criminal matters involving separate municipalities). The panel expressly restricted its guidance to interpretations of the Rules of Professional Conduct and noted it does not extend to issues under the Code of Judicial Conduct or any other rules, regulations, or laws bearing on the inquiry.

In practice

Under this opinion, a Rhode Island lawyer who represents two clients who are unrelated parties in unrelated matters does not have a concurrent conflict of interest under Rule 1.7 merely because the opposing counsel in one matter also sits as the judge in the other. The panel held that the representations were neither directly adverse nor materially limited by the lawyer's responsibilities to the other client, so no withdrawal was required. The panel confined its analysis to the Rules of Professional Conduct and did not opine on the Code of Judicial Conduct, which may separately bear on the arrangement.

Common questions

Q: Is it a conflict to represent two clients in completely unrelated matters?

A: The panel said no. Under Rule 1.7(a), the representations were not directly adverse because the clients were unrelated parties in unrelated matters, and neither representation was materially limited by the lawyer's responsibilities to the other.

Q: Does it matter that opposing counsel in one case is also the judge in my other case?

A: The panel found no Rule 1.7 conflict on these facts and did not treat the overlap as creating direct adversity or material limitation between the two client representations. It expressly declined to address the Code of Judicial Conduct or other laws that might bear on the situation.

Q: What is the test the panel applied?

A: The panel applied Rule 1.7(a): a concurrent conflict exists if one representation is directly adverse to another client, or if there is a significant risk that a representation will be materially limited by the lawyer's responsibilities to another client, a former client, a third person, or the lawyer's personal interest. Neither prong was met here.

Background and rules framework

The opinion applies Rule 1.7 (Model Rule 1.7, concurrent conflicts of interest), reproducing paragraphs (a) and (b) and relying on Comment [2]'s four-step framework: identify the client(s), determine whether a conflict exists, decide whether any conflict is consentable, and if so obtain each affected client's informed consent confirmed in writing. Because the panel found no conflict at the second step, the consent steps were not reached.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflicts of interest)
• RI RPC 1.7

Statutes:

• None cited.

Cases:

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

Other opinions cited:

• RI EAP Op. 2006-01 (no conflict representing a car's driver and passenger in unrelated matters where interests were not directly adverse)
• RI EAP Op. 2014-06 (no conflict between representing a municipality as solicitor and private clients in criminal matters involving separate municipalities)

See also

• RI EAP Op. 2006-01: Representing Adverse Parties in Unrelated Matters
• RI EAP Op. 2014-06: Part-Time Prosecutor Taking Private Criminal Clients
• RI EAP Op. 2024-05: Cross-Examining a Current Client Witness Is a Nonconsentable 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-2024-11.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. 2024-11
Issued November 14, 2024

FACTS

The inquiring attorney represents a client ("Client 1") in a divorce proceeding. The lawyer for the opposing party in the divorce proceeding is also a probate judge before whom the inquiring attorney represents a different client ("Client 2") as an heir against a surviving spouse in an unrelated contested matter.

ISSUE PRESENTED

The inquiring attorney asks whether a conflict of interest exists such that he or she must withdraw from representing Client 1 under the Rules of Professional Conduct?

OPINION

It is the Panel's opinion that a conflict of interest does not exist, such that the inquiring attorney need not withdraw from representing either Client 1 or Client 2 under the Rules of Professional Conduct.

REASONING

Conflicts of interest are governed by Rule 1.7:

(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." 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). "The focus of conflicts of interest analysis under Rule 1.7 is loyalty to every client and effective representation . . . ." Rhode Island Supreme Court Ethics Advisory Panel Op. 2014-06. Accordingly, "[r]esolution 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].

Here, the inquiring attorney represents Client 1 in a divorce proceeding. Counsel for the opposing party in the divorce proceeding also serves as the probate judge overseeing an unrelated contested matter in which the inquiring attorney represents Client 2.

Pursuant to Rule 1.7(a), a concurrent conflict of interest exists when "the representation of one client will be directly adverse to another client . . . [or when] 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 Panel finds that under the facts as described by the inquiring attorney, no conflict of interest exists here. The interests of Client 1 and Client 2 are not directly adverse because they are unrelated parties involved in unrelated matters—one a divorce proceeding, the other a contested probate matter. See Rhode Island Supreme Court Ethics Advisory Panel Op. 2006-01 (determining that it was not a conflict of interest for the inquiring attorney to represent the driver and passenger of a car involved in a motor vehicle accident in unrelated matters because the parties' interests were not directly adverse). Additionally, neither representation is materially limited by the inquiring attorney's responsibilities to either Client 1 and Client 2 or any other party. See Rhode Island Supreme Court Ethics Advisory Panel Op. 2014-06 (finding that no conflict of interest existed between an attorney's representation of a municipality in criminal matters as its solicitor and of private clients in criminal matters involving separate municipalities). Therefore, the inquiring attorney is under no obligation to withdraw from representing either Client 1 or Client 2.

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 or any other rules, regulations, or laws that may have bearing on the issues raised by this inquiry.