My partner sits on a hospital's Board of Directors, but neither of us has ever done legal work for the hospital. A prospective client wants me to sue a physician on staff there. Can I take the case?

Plain-English summary

An attorney asked the panel about the propriety of undertaking representation of Ms. X, who sought his assistance pursuing a medical malpractice claim against a physician on staff at a local hospital and against the hospital's outpatient clinic. One of the attorney's partners was a member of the hospital's Board of Directors. Neither the attorney nor any member of his firm had ever done legal work for the hospital, and the firm did not represent the hospital in any way at the time. The attorney did not believe his representation of Ms. X would be adversely affected by his partner's board position and asked whether he could undertake the representation.

The panel quoted Rule 1.7(b), barring 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. It also quoted Rule 1.11(a), which bars any lawyer in a firm from knowingly representing a client when any one lawyer in the firm, practicing alone, would be prohibited from doing so by Rule 1.7, and Rule 1.11(d), which allows a disqualification under the rule to be waived by the affected client under the conditions stated in Rule 1.7. The panel held the partner's hospital board position could constitute a limiting interest within the meaning of Rule 1.7(b), and that under Rule 1.11's imputed disqualification provisions, if the partner could not represent a given client, the inquiring attorney was also barred from assuming that representation. But because Rule 1.7(b) allows impropriety to be cured by client consent when a lawyer believes the representation will not be adversely affected, a waiver referenced in Rule 1.11(d), the panel held the inquiring attorney may properly represent Ms. X if he obtains consent after consultation from both Ms. X and a representative of the hospital's governing body.

Currency note

This opinion was issued in December 1989, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.7(b) and 1.11 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 my law partner's board membership at an organization stop me from suing someone affiliated with that organization?

A: Not automatically, but it does raise a conflict that must be addressed. The panel held the board seat could constitute a limiting interest under Rule 1.7(b), imputed to the whole firm under Rule 1.11(a), but curable by consent.

Q: Whose consent do I need if my partner's board seat creates a conflict?

A: According to this opinion, the inquiring attorney needed consent after consultation from both the prospective client, Ms. X, and a representative of the governing body of the hospital where the partner served as a director.

Q: Does it matter that my firm has never actually done legal work for the organization my partner sits on the board of?

A: The opinion does not treat the absence of a legal-work relationship as eliminating the conflict; it still found the board seat could constitute a limiting interest under Rule 1.7(b) and required consent from both affected parties before the representation could proceed.

Background and rules framework

The opinion applies Rule 1.7(b) of the Rhode Island Rules of Professional Conduct, governing conflicts from a lawyer's responsibilities to another client or third person or the lawyer's own interests, together with Rule 1.11's imputed disqualification provisions extending a disqualified lawyer's conflict to the whole firm and permitting its waiver under Rule 1.7's consent conditions, as adopted effective November 15, 1988, to a firm's proposed representation of a malpractice claimant against a hospital physician where a firm partner sat on that hospital's Board of Directors.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest, general rule)
• MR 1.11 (imputed disqualification, general rule)
• RI RPC 1.7(b), RPC 1.11(a), and RPC 1.11(d), as adopted November 15, 1988

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Opinion 89-19: Oral Consent After Consultation Satisfies Rule 1.7(b) When a Firm Represents a Municipal Water Board and a Private Client Suing That Board in a Separate Matter
• 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%2089-22.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 #89-22, REQUEST #73
Issued December 7, 1989

An attorney seeks Panel advice as to the propriety of undertaking representation of a certain individual under the circumstances he describes. The attorney advises the Panel that the individual, Ms. X, sought his assistance in pursuing a medical malpractice claim against a physician on the staff at a local hospital and against the outpatient clinic of the hospital. The attorney states that one of his partners is a member of the Board of Directors of the hospital in question. The attorney adds that neither he nor any member of his firm has ever done any legal work for the hospital in the past, and that his firm does not represent the hospital in any way at the present time. The attorney states that he does not believe that his representation of Ms. X would be adversely affected by his partner's position at the board of directors. The attorney asks whether he may undertake representation of Ms. X.

Rule 1.7, titled "Conflict of Interest: General Rule" provides, in pertinent part:

(b) 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.

Rule 1.11, titled "Imputed Disqualification: General Rule" provides in pertinent part:

(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 Rule 1.7.

(d) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7.

The Panel takes the position that the inquiring attorney's partner's position on the Board of Directors of the hospital in question could constitute a limiting interest within the meaning of Rule 1.7(b). Under the imputed disqualification provisions of Rule 1.11, if the inquiring attorney's partner may not represent a given client, then the inquiring attorney is also barred from assuming that representation.

Rule 1.7(b) provides, however, that when a lawyer believes that the representation of a client will not be adversely affected, any impropriety can be cured by obtaining client consent. This waiver of disqualification provision is referenced in Rule 1.11(d).

The Panel takes the position that the inquiring attorney may properly represent Ms. X if he obtains consent after consultation from Ms. X and from a representative of the governing body of the hospital in question.

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.