I'm a private attorney appointed to a state licensing board. Can I take part in board decisions involving people I've sued, and can I later represent a client against someone whose case I heard as a board member?

Plain-English summary

An attorney appointed to serve on a state professional regulatory board asked the panel how his board duties interacted with his private practice. He posed two initial questions: what he should do if a matter comes before the board concerning an individual he had previously sued in an unrelated matter, and what he should do if, after participating in a board decision, a case is later referred to him involving the individual who was the subject of that board decision.

The panel concluded that Canons 8 and 9, and the related Ethical Considerations and Disciplinary Rules, barred the attorney from participating as a board member in deliberations involving any individual against whom he had brought suit on behalf of a private client in the past, or against whom he had a suit pending. The panel also held that the attorney could not represent a client against an individual who had been brought before the board if the attorney had participated in that individual's case as a board member, reasoning that confidential information would necessarily have been part of what was given to him as a board member.

The attorney also asked two practical follow-up questions: what to do if a case comes before the board involving someone with whom he is presently in litigation, and what to do if, as a board member, he inadvertently comes into possession of damaging information about someone with whom he is presently in litigation. The panel advised the attorney to recuse himself immediately from any board matter involving an individual with whom he is presently involved in litigation, and to arrange with board staff to review the names of individuals scheduled to come before the board before any information reached him in his capacity as a board member. The panel warned that failing to set up such a screening practice could force the attorney to recuse as a board member and withdraw as attorney in a pending matter.

Currency note

This opinion was issued in 1987, before the Rhode Island Supreme Court's adoption of the 2007 revisions to the Rules of Professional Conduct (which superseded the 1988 Rules of Professional Conduct, themselves adopted after this opinion under the ABA Model Code of Professional Responsibility's Canons, Ethical Considerations, and Disciplinary Rules). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: I sit on a state licensing or regulatory board and I'm also in private practice. Can I take part in a board decision involving someone I've sued?

A: No. The opinion holds that Canons 8 and 9 bar the attorney from participating in board deliberations involving anyone he has sued, or currently has a pending suit against, on behalf of a private client.

Q: After I've participated in a board decision about someone, can I later represent a client against that same person?

A: No. The opinion holds that the attorney may not represent a client against an individual who was the subject of a board matter the attorney participated in, because confidential information from the board role would necessarily be part of what he learned.

Q: What should I do if a case involving someone I'm currently litigating against comes before the board?

A: The opinion advises immediate recusal from that board matter.

Q: How can I avoid accidentally learning confidential board information about someone I'm litigating against?

A: The opinion advises arranging with board staff to review the names of individuals scheduled to come before the board before any information is passed to the attorney in his board capacity, warning that skipping this screening step could force both recusal from the board and withdrawal from the private matter.

Background and rules framework

The opinion applied Canons 8 and 9 of the ABA Model Code of Professional Responsibility, then in force in Rhode Island, along with their related Ethical Considerations and Disciplinary Rules. Canon 9 addresses avoiding even the appearance of professional impropriety; Canon 8 addresses a lawyer's responsibilities toward improving the legal system, which the panel read together with Canon 9 to reach the dual-role conflict presented here.

Citations and references

Rules of Professional Conduct:

• RI Canon 8 (ABA Model Code of Professional Responsibility, then in effect in Rhode Island)
• RI Canon 9 (avoiding the appearance of impropriety)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

No sibling opinions yet indexed.

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%2087-01.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Digest of Ethics Advisory Panel Opinion #87-1

Request #2

Issued September 2, 1987

An attorney appointed to serve on a State professional regulatory board sought the Ethics Advisory Panel's advice concerning the relationship of his private legal responsibilities and his responsibilities as a board member.

The attorney first asked what he should do if a matter comes before the board which concerns an individual the attorney had previously sued in a different matter. Second, the attorney asked what he should do if he participates in a board decision and, later, a case is referred to him which involves the individual who was the subject of the board decision.

Ethics Advisory Panel advice is protective in nature. There is no requirement that an attorney abide by a Panel opinion, but if he or she does, he or she is fully protected from any charge of impropriety.

In response to the two queries posed, the Panel determined that the spirit and content of Canons 8 and 9, and the related Ethical Considerations and Disciplinary Rules, bar the attorney from participating as a board member in deliberations involving any individual against whom he has brought suit on behalf of a private client in the past, or against whom he has a suit pending. Furthermore, the Panel took the position that the attorney may not represent a client against an individual who has been brought before the board if the attorney participated in the individual's case as a board member. The Panel reasoned that confidential information would necessarily be part of the information given to the attorney as a board member.

The attorney's third and fourth queries focus on the practical measures he must take to preserve the integrity of his two roles. First, he asked what he should do if a case comes before the board involving an individual with whom he is presently involved in litigation. Second, he asked what he should do if, as a board member, he inadvertently comes into possession of damaging information concerning an individual with whom he is presently involved in litigation.

The Panel advised the attorney to immediately recuse himself if a case comes before the board involving an individual with whom he is presently involved in litigation. The Panel also advised the attorney to make arrangements with the board staff to review the names of all individuals to be brought before the board before any information is passed to him in his capacity as board member. The Panel warned that failure to establish such a screening practice could result in a conflict situation which would force the attorney to recuse himself as a board member and withdraw as attorney in a pending matter.