I represent an injured passenger, and the driver I'm suing now claims he once called me for advice. Will the ethics panel decide whether that phone call created a conflict?

Plain-English summary

An attorney representing the plaintiff passenger in a personal injury action asked the panel whether he could continue that representation after learning that the defendant driver had been arrested for driving under the influence. The police report indicated the driver had called the attorney, but the attorney stated he had no recollection of the call even after reviewing the report.

The panel quoted Rule 1.7, 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. The panel observed that if the defendant driver consented to the attorney's representation of the plaintiff passenger, continued representation would be proper. Absent consent, whether an attorney-client relationship arose from the driver's call became a contested question of fact. The panel found itself not in a position to decide that factual question and held that this kind of contested-fact situation is better handled in the adversarial proceeding the attorney had already initiated in court than in the panel's single-party review procedure. Citing Panel Rule 2(e), which allows the panel to decline jurisdiction when a request does not comply with Rule 3's form requirements, and Rule 3's requirement that a request set out the factual situation in detail, the panel declined to exercise jurisdiction over the inquiry.

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 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. 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 Treat this page as historical context, not current guidance.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 mentioned here.

Common questions

Q: Will the ethics panel decide a factual dispute about whether an attorney-client relationship formed?

A: No. The panel held that a contested fact question, here whether a phone call created an attorney-client relationship, is better handled in an adversarial court proceeding than in the panel's single-party review procedure.

Q: If the opposing party consents to my continued representation, is that enough under Rule 1.7?

A: According to the opinion, if the defendant driver consents to the attorney's representation of the plaintiff passenger, continued representation "would, of course, be proper."

Q: What rule allows the panel to decline to answer a request?

A: The panel cited Rule 2(e), which permits it to decline jurisdiction where a request is not in the form required by Rule 3, and Rule 3's requirement that the request set out the factual situation in detail.

Background and rules framework

The opinion applies Rule 1.7 of the Rhode Island Rules of Professional Conduct, as adopted effective November 15, 1988, governing conflicts of interest between clients, together with the Ethics Advisory Panel's own procedural rules: Rule 2(e), which lets the panel decline jurisdiction over a request that does not meet Rule 3's form requirements, and Rule 3, which requires a request to set out the factual situation in detail and represent that the opinion will not affect the interests of parties to a pending action.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest, general rule)
• RI RPC 1.7 (conflict of interest, general rule, as adopted November 15, 1988)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Opinion 88-24: Panel Declines to Opine on Recommending an Expert Witness Association, Request Made on the Association's Behalf
• RI EAP Opinion 89-03: Panel Declines to Rule on Continued Representation of a Husband in a Marital Dispute After a Prior Joint Adoption

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%2089-04.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 #89-4, REQUEST #46
Issued February 21, 1989

An attorney seeks Panel advice as to whether it is proper for him to continue to represent his client under the circumstances he outlines.

The attorney advises the Panel that he represents the plaintiff in a personal injury action. His client was the passenger in the car. The attorney states that since filing suit on behalf of his client he has learned that the driver of the car was apprehended on suspicion of driving under the influence of liquor. The attorney states that the police report indicates that the driver contacted the attorney himself. The attorney is emphatic that he has no recollection of this call, even after reviewing the report.

Rule 1.7 provides, in pertinent part:

Rule 1.7 CONFLICT 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.

If the defendant driver consents to the attorney's representation of the plaintiff passenger, then continued representation of the plaintiff would, of course, be proper. In the absence of such consent, however, the question of whether or not an attorney-client relationship arose by virtue of the defendant's telephone call to the attorney becomes a question of fact.

Based on the information contained in the attorney's letter, the Panel does not believe itself to be in a position to decide whether, as a matter of fact, an attorney-client relationship arose between the attorney and the defendant driver. The Panel believes that this type of contested fact situation is better handled in an adversarial proceeding such as the one the attorney has initiated in court rather than in the "single party" procedure which Panel review offers.

Ethics Advisory Panel Rule 2, entitled "Jurisdiction," provides, in pertinent part that the Panel may decline to render an advisory opinion if:

(e) The request is not in the form required by Rule 3 hereof.

Rule 3 sets forth the required form for all advisory opinion requests. It provides, in pertinent part:

3. FORM OF REQUEST. A request shall be in writing, shall set out the factual situation in detail and, if possible, the applicable sections of the Code of Professional Responsibility. It shall also contain a representation by the inquirer that the factual situation described directly affects the inquirer's professional conduct and that the opinion of the panel will not affect interests of parties to any pending action.

The Panel declines to exercise jurisdiction to respond to the attorney's inquiry in view of the requirements of Panel Rules 2 and 3.

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.