My firm represents a municipal water board being sued in one matter, while I personally represent a private client (through separate outside counsel) suing that same board in an unrelated matter. Both clients gave oral consent. Is that enough under Rule 1.7(b), or do I need it in writing?

Plain-English summary

An attorney whose firm serves as counsel to a municipal water supply board asked the panel what additional steps, if any, he should take to comply with Rule 1.7 under the circumstances he described. The reservoir supplying most of the municipality's water drains into a river the opinion calls "the M river." Client A, a private individual, had retained the inquiring attorney's firm to seek relief from state agency restrictions on developing land along the M river's bank. Under an old public law, the water supply board is required to release a certain amount of water into the river to benefit riverside property, and Client A retained separate outside counsel to sue the water supply board to compel that release. When that complaint arrived, one of the inquiring attorney's partners consulted with Client A about the possible conflict from the firm prosecuting one matter for A while another firm lawyer defended the water board being sued by A, and A consented to continued representation by the firm; the partner did not believe his representation of A on the land-use matter would be adversely affected by the firm's defense of the water board. The inquiring attorney separately disclosed the potential conflict to the water supply board, which also consented to continued representation despite another firm member representing A, and the inquiring attorney did not believe his representation of the board would be adversely affected by his partner's representation of A. The inquiring attorney asked whether the oral consent of both clients was sufficient.

The panel quoted Rule 1.7(b), which bars a lawyer from representing a client whose representation may be materially limited by the lawyer's responsibilities to another client or third person, or by the lawyer's own interests, unless the lawyer reasonably believes the representation will not be adversely affected and the client consents after consultation. The panel held that, under the circumstances outlined, oral consent after consultation from both affected clients satisfies Rule 1.7(b)'s requirements, while noting that obtaining written consent may be advisable in this and many similar situations.

Currency note

This opinion was issued in September 1989, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.7(b) 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: Does client consent to a conflict of interest have to be in writing under Rule 1.7(b)?

A: Not under this opinion's facts. The panel held that oral consent after consultation from both affected clients satisfies Rule 1.7(b), though it noted written consent may be advisable in this and similar situations.

Q: My firm represents a government client on one matter, and I have a client suing that same government entity in a different matter through outside counsel. Is that automatically a conflict?

A: The opinion does not treat this arrangement as automatically prohibited. It required disclosure and consultation with both clients, followed by consent, under Rule 1.7(b)'s materially-limited-representation standard.

Q: What has to happen before continuing representation in this kind of cross-representation situation?

A: Per the opinion, the lawyer must reasonably believe the representation will not be adversely affected and must obtain each client's consent after consultation, as Rule 1.7(b) requires.

Background and rules framework

The opinion applies Rule 1.7(b) of the Rhode Island Rules of Professional Conduct, as adopted effective November 15, 1988, governing conflicts of interest arising from a lawyer's responsibilities to another client or a third person, to a law firm's simultaneous representation of a municipal water supply board and, through a different firm lawyer, a private client in a separate matter involving the same board.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest, general rule)
• RI RPC 1.7(b) (conflict from responsibilities to another client or third person, as adopted November 15, 1988)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Opinion 89-01: Associate Accepting Part-Time State Employment Defending Claims While the Firm Represents Claimants Under the Same Statute
• RI EAP Opinion 89-09: State Agency Staff Attorney's Personal Claim Pending Against a Different Branch of the Same Municipality She Faces in Agency Litigation

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%2089-19.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 89-19, REQUEST #66
Issued September 14, 1989

An attorney seeks Panel advice as to what additional steps, if any, he ought to take to comply with the provisions of Rule 1.7 of the Rhode Island Rules of Professional Conduct under the circumstances he outlines.

The attorney advises the Panel that his firm is counsel to a municipal water supply board. The reservoir representing most of this municipality's water resources drains into a certain river, hereinafter "the M river." Client A, a private individual, has retained the attorney's firm to represent him in connection with his development of property along the bank of the M river.

The attorney's firm's representation of Client A consists principally of seeking relief from restrictions imposed by a state agency on the development of land which is contiguous to water. The attorney further advises the Panel that under an old public law, the water supply board is required to release a certain amount of water into the M river to benefit riverside property. Client A retained an attorney outside the inquiring attorney's firm to bring suit against the water supply board to compel the water supply board to release the appropriate flowage. Upon receiving this complaint, one of the inquiring attorney's partners consulted with Client A concerning the possible conflict of interest posed by prosecuting one suit for A while another attorney in the same firm defends a client being sued by A. After this consultation A consented to continued representation by the inquiring attorney's firm. The inquiring attorney's partner states that he does not believe that his representation of A in connection with state agency regulation of land contiguous to water will be adversely affected by the firm's defense of the water supply board.

The inquiring attorney further advised the Panel that he disclosed to the water supply board the potential conflict of interest. The inquiring attorney states that the water supply board also consents to his continued representation despite the fact that another member of the firm represents A. The inquiring attorney states that he does not believe that his representation of the water supply board will be adversely affected by his partner's representation of A in the other case. The inquiring attorney asks Panel advice as to whether the oral consent of both clients involved is sufficient under the circumstances.

Rule 1.7 codified the general rule concerning conflicts of interest. Section (b) provides, in pertinent part:

A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

(1) The lawyer reasonably believes the representation will not be adversely affected, and

(2) The client consents after consultation. * * *

The Panel takes the position that under the circumstances as outlined, oral consent after consultation from both affected clients satisfies the requirements of Rule 1.7(b). The Panel notes, however, that in this and many similar situations obtaining written consent may be advisable.

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.