I've been offered part-time work representing the state against claims under a specific statute, and I want to keep my associate job at a firm that represents claimants under that same statute. Can I take the state job if I withdraw from my own firm's cases under that statute, or if the firm walls off one isolated associate to handle them instead?

Plain-English summary

An attorney asked the panel whether he could properly accept an offer of part-time employment while remaining an associate of his present firm. He had been offered a position as a part-time attorney hired by the state to represent the state's interests against claims made pursuant to a particular state statute. He wished to remain an associate of his firm, planned to withdraw his own appearance for clients bringing claims under that statute, and stated that as a member of the firm he would not participate in representing any future firm clients seeking recovery under the statute.

The attorney proposed two alternate scenarios. In the first, another associate of the firm would represent all clients seeking recovery under the statute, while a different attorney employed by the state (not the inquiring attorney) would represent the state's interests in claims brought by the inquiring attorney's firm. In the second, all clients using the firm's services to sue the state under the statute would be represented by one designated associate, who would be isolated from the firm's other lawyers in various ways, potentially including a separate clients' account, separate accounting procedures, and separate files and stationery.

The panel noted that the Preamble to the Rhode Island Rules of Professional Conduct states that a lawyer should avoid even the appearance of professional impropriety. It quoted Rule 1.7(a), which bars a lawyer from representing a client directly adverse to another client unless the lawyer reasonably believes the representation will not adversely affect the relationship with the other client and each client consents after consultation, and Rule 1.10(a), which imputes a Rule 1.7 disqualification to every lawyer in a firm while the disqualified lawyer remains associated with it.

The panel held that the inquiring attorney could not properly accept the part-time state employment under either scenario. Representing a client seeking recovery from the state after assuming responsibility to represent the state's interests would itself be improper under Rule 1.7, and Rule 1.10 extends that prohibition to every member of the attorney's firm. As to the isolated-associate proposal, the panel reasoned that the designated associate remains a member of the firm and so is still subject to Rule 1.10's proscription regardless of internal separation. The panel noted it was mindful of the Disciplinary Board's policy on attorneys sharing office space, approved by the court on March 17, 1988, under which even independent attorneys sharing office space are treated as an association of attorneys absent scrupulously maintained separate identities in specific enumerated areas. It was also mindful of other jurisdictions' ethics opinions holding it unreasonable to believe one associate in a small firm can be effectively sequestered, citing Opinion 85-12 of the Committee on Professional Ethics of the Connecticut Bar Association.

Currency note

This opinion was issued in February 1989, shortly after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.7 and Rule 1.10 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, and screening/imputed-disqualification rules in particular have been revised in many jurisdictions since 1989. Treat this page as historical context, not current guidance. Verify against current Rule 1.7 and Rule 1.10 text before relying on anything stated here.

Common questions

Q: Can I take part-time work representing the state in cases under a statute, if I personally withdraw from my firm's cases under that same statute?

A: No, according to this opinion. The panel held that Rule 1.10 imputes the conflict from Rule 1.7 to the entire firm, so the attorney's personal withdrawal from those matters does not cure the problem.

Q: What if my firm designates one isolated associate, with a separate account and separate files, to handle all the claims against the state?

A: Still no, per this opinion. The panel held the isolated associate remains a member of the firm and is therefore still subject to Rule 1.10's imputed disqualification, regardless of internal separation measures.

Q: Did the panel rely on anything besides Rules 1.7 and 1.10?

A: Yes. It noted the Rhode Island Disciplinary Board's March 17, 1988 policy on office-sharing attorneys, and cited Connecticut Bar Ethics Committee Opinion 85-12 for the view that one associate in a small firm cannot realistically be sequestered from the rest.

Background and rules framework

The opinion applies Rule 1.7(a) (barring representation directly adverse to another client absent reasonable belief of no adverse effect and consultation-based consent) and Rule 1.10(a) (imputing a disqualified lawyer's conflict to the entire firm) of the Rhode Island Rules of Professional Conduct, as adopted effective November 15, 1988, to an associate's proposed part-time government employment adverse to his firm's existing client base under a specific statute.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest: current clients)
• MR 1.10 (imputation of conflicts of interest: general rule)
• RI RPC 1.7(a) (bar on representation directly adverse to another client)
• RI RPC 1.10(a) (imputed disqualification within a firm)

Statutes:

• None cited by name (the opinion refers generally to "a certain state statute" under which claims against the state were brought).

Cases:

• None cited.

Other opinions cited:

• Connecticut Bar Association Committee on Professional Ethics Opinion 85-12: one associate in a small firm cannot realistically be sequestered from the firm's other lawyers

See also

• RI EAP Opinion 88-13: Rhode Island-Admitted Lawyer Staffing an Unlicensed Out-of-State Firm's Rhode Island Branch Office

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%2089-01.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 89-1, Request #40
Issued February 21, 1989

An attorney seeks Panel advice as to whether he may properly accept an offer of part-time employment while remaining an associate of his present firm under the specific circumstances he describes. The attorney advises the Panel that he has been offered a position as a part-time attorney hired by the state to represent the state's interests against claims made by pursuant to a certain state statute. The—atterney—advises—the—Panel—that—he—has—been offered-a position-as—a-part=time—attorney—hired-by—-the-state-to_represent--the state's_-interests. against. claims. made .pursuant. to a. certain-state -statute. The attorney advises the Panel that he wishes to remain an associate of his present firm and that he would plan to withdraw his appearance as attorney for clients bringing claims pursuant to the state statute in question. He further advises the Panel that, as a member of his present firm, he would not participate in the representation of any future clients of the firm who sought recovery pursuant to the state statute in question.

The attorney proposes two alternate scenarios to the Panel. First, he asks if he may properly accept the part-time employment if another associate of the firm represents all clients seeking recovery under the pertinent statute while another attorney in the state's employ represents the state's interests in all claims brought by the inquiring attorney's firm.

Second, the attorney asks if he may properly accept the part-time employment if all clients utilizing his firm's services to sue the state pursuant to the statute in question are represented by one associate and that one associate is isolated from the firm's other associates and partners in a variety of ways. The inquiring attorney suggests that this designated associate could have a separate clients' account, separate accounting procedures plus separate files and stationery.

The Preamble to the Rhode Island Rules of Professional Conduct states that "[a] lawyer should avoid even the appearance of professional impropriety." Rule 1.7 provides, in pertinent part:

Rule 1.7 CONFLICTS OF INTEREST: GENERAL RULE

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless

(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and

(2) each client consents after consultation.

Rule 1.10 IMPUTED DISQUALIFICATION: GENERAL RULE

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7.

The Panel takes the position that the inquiring attorney may not properly accept the part-time employment described under either of the scenarios outlined. For him to represent a client seeking recovery from the state after assuming a responsibility to represent the state's interests would be improper under Rule 1.7; Rule 1.10 extends the prohibition to any member of the attorney's firm.

The inquiring attorney has also suggested that all clients invoking the statute in question might be channeled to one, isolated associate of the firm. The fact remains, however, that the isolated associate is still a member of the firm and thus subject to the proscription of Rule 1.10. In adopting this perspective, the Panel is mindful of the Disciplinary Board's policy on attorneys sharing office space, approved by this Court March 17, 1988. In this policy statement, the Disciplinary Board took the position that in order to avoid confusion in the public mind, even independent attorneys who share office space would be considered an association of attorneys despite a disclaimer to the contrary, unless their separate identities were scrupulously maintained in specific enumerated areas. The Panel is also mindful of the opinions of ethics committees in other jurisdictions, holding that it is unreasonable to believe that one associate in a small firm may be effectively sequestered. See e.g. Opinion 85-12 of the Committee on Professional Ethics of the Connecticut Bar Association.

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.