I sit on the board of a nonprofit that is being sued, and I want to represent it in the litigation. Do the ethics rules let me serve as both director and its lawyer?

Plain-English summary

The inquiring attorney is a member of the board of a local non-profit organization (the "Entity"). The Entity was sued for personal injuries sustained at an August 2022 event it held, when a firework launched by a professional fireworks company allegedly malfunctioned and shot toward the crowd before exploding. The attorney did not attend the event and wishes to represent the Entity in the litigation.

The panel concluded the attorney is not prohibited from representing the Entity, provided he or she believes the representation will not be materially limited by his or her responsibilities to the Entity, or otherwise complies with Rule 1.7(b). The inquiry is governed by Rule 1.7, which is grounded in the duty of loyalty and is meant to ensure that a lawyer's range of options is not materially limited by other interests or responsibilities that might impair the lawyer's ability to consider, recommend, or carry out an appropriate course of action (quoting Op. 93-80).

The panel relied on Comment [34] to Rule 1.7, which addresses a lawyer who also serves on a client organization's board. The comment directs the lawyer to determine whether the two roles may conflict, weighing the frequency of such situations, the potential intensity of the conflict, the effect of resigning from the board, and the possibility of the organization obtaining other counsel. If there is a material risk that the dual role will compromise the lawyer's independent professional judgment, the lawyer should not serve as a director or should cease acting as the organization's lawyer when conflicts arise, and should advise the board that some board discussions with the lawyer present as director might not be privileged.

Applying that comment, the panel found the representation permissible under Rule 1.7(a) if the attorney believes it will not be materially limited by his or her responsibilities to the Entity; otherwise it is prohibited unless the attorney complies with Rule 1.7(b), including obtaining the Entity's written informed consent (citing Comment [19] and Rule 1.0(e)). In a footnote, the panel added that if the attorney takes the representation, he or she must strictly comply with Rules 1.8 and 1.13.

In practice

Under this opinion, a Rhode Island lawyer who sits on a nonprofit's board may represent that nonprofit in litigation so long as the lawyer reasonably believes the dual role will not materially limit the representation; if there is a significant risk of material limitation, the lawyer must satisfy Rule 1.7(b), including obtaining the organization's written informed consent. The panel pointed the lawyer to Comment [34]'s factors for weighing the director and lawyer roles and noted that any such representation must also comply with Rules 1.8 and 1.13.

Common questions

Q: Can I be both a board member and the lawyer for the same nonprofit?

A: The panel said yes, if you reasonably believe the dual role will not materially limit your representation of the organization, or you comply with Rule 1.7(b), including obtaining the organization's written informed consent.

Q: What should I weigh before taking the case?

A: Comment [34] directs the lawyer to consider how often conflicts may arise, their potential intensity, the effect of resigning from the board, and whether the organization could get advice from another lawyer, and to recuse or decline if a material risk compromises independent judgment.

Q: Are board discussions privileged if I attend as a director?

A: The panel, quoting Comment [34], noted the lawyer should advise the board that matters discussed while the lawyer is present in the capacity of director might not be protected by the attorney-client privilege.

Q: Are there other rules I must follow if I take the representation?

A: Yes. The panel noted in a footnote that the attorney must strictly comply with Rules 1.8 and 1.13 if he or she undertakes the representation.

Background and rules framework

The opinion applies Rule 1.7 (Model Rule 1.7, concurrent conflicts of interest), relying heavily on Comment [34], which governs a lawyer who also serves as a director of a client organization. Rule 1.7(a)(2) treats a representation as conflicted when there is a significant risk it will be materially limited by the lawyer's responsibilities to a third person or the lawyer's own interests; Rule 1.7(b) permits representation despite a conflict on informed written consent and the other paragraph (b) conditions. The panel also flagged Rule 1.8 (Model Rule 1.8, specific conflict rules) and Rule 1.13 (Model Rule 1.13, organization as client) as governing any resulting representation.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflicts of interest)
• MR 1.8 (conflicts of interest; specific rules)
• MR 1.13 (organization as client)
• RI RPC 1.7, 1.8, 1.13

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. 93-80 (Rule 1.7 ensures a lawyer's range of options is not materially limited by other interests or responsibilities)

See also

• RI EAP Op. 93-80: When Other Responsibilities Materially Limit a Representation
• RI EAP Op. 2024-10: Town Solicitor and the Organization as Client
• ABA Formal Op. 92-365: Trade Associations as Clients

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-2025-06.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. 2025-6
Issued May 8, 2025

FACTS

The inquiring attorney is a member of the board of a local non-profit organization (the "Entity"). The Entity has been sued for personal injuries sustained at an event held by the Entity in August 2022, when a firework launched by a professional fireworks company allegedly malfunctioned and shot toward the crowd before exploding. The inquiring attorney did not attend the event in question. He or she wishes to represent the Entity in the litigation.

ISSUE PRESENTED

The inquiring attorney asks whether he or she is prohibited under the Rules of Professional Conduct from representing the Entity?

OPINION

It is the Panel's opinion that the inquiring attorney is not prohibited under the Rules of Professional Conduct from representing the Entity, provided that he or she believes the representation will not be materially limited by his or her responsibilities to the Entity, or that he or she otherwise complies with Rule 1.7(b).

REASONING

Rule 1.7 pertains to conflicts of interest:

(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). Among other purposes, Rule 1.7 is intended to ensure that "'a lawyer's range of options is not materially limited by other interests or responsibilities which might impair the lawyer's ability to consider, recommend, or carry out an appropriate course of action.'" Rhode Island Supreme Court Ethics Advisory Op. 93-80 (quoting Annotated Model Rules of Professional Conduct, 114 (2nd ed. 1992)).

In this case, the inquiring attorney is a member of the Entity's board and seeks to represent the Entity in litigation. Comment [34] to Rule 1.7 squarely addresses this scenario in detail and is worth including in full:

A lawyer for a corporation or other organization who is also a member of its board of directors should determine whether the responsibilities of the two roles may conflict. The lawyer may be called on to advise the corporation in matters involving actions of the directors. Consideration should be given to the frequency with which such situations may arise, the potential intensity of the conflict, the effect of the lawyer's resignation from the board and the possibility of the corporation's obtaining legal advice from another lawyer in such situations. If there is material risk that the dual role will compromise the lawyer's independence of professional judgment, the lawyer should not serve as a director or should cease to act as the corporation's lawyer when conflicts of interest arise. The lawyer should advise the other members of the board that in some circumstances matters discussed at board meetings while the lawyer is present in the capacity of director might not be protected by the attorney-client privilege and that conflict of interest considerations might require the lawyer's recusal as a director or might require the lawyer and the lawyer's firm to decline representation of the corporation in a matter.

Accordingly, the representation contemplated by the inquiring attorney is permissible under Rule 1.7(a) if he or she believes that the representation will not be materially limited by his or her responsibilities to the Entity in the manner described in Comment [34]. See Rhode Island Supreme Court Ethics Advisory Op. 93-80. Otherwise, the representation is prohibited unless the inquiring attorney complies with the requirements of Rule 1.7(b), including obtaining the written informed consent of the Entity. See Rule 1.7, Comment [19] (setting forth the requirements for obtaining written informed consent from a client); see also Rule 1.0(e) (defining "informed consent").

Should the inquiring attorney take on the representation, he or she must strictly comply with Rules 1.8 and 1.13.