I'm part-time counsel to a state grant program, and part of my salary comes from that program. It denied a city federal reimbursement, and now the contractor the city stiffed as a result wants me to sue the city privately. Can I take the case, and can I refer it to attorneys I share office space and a phone line with instead?

Plain-English summary

The attorney maintains a private practice and also holds a part-time position as legal counsel to a state office ("Office X") within the Governor's Executive Department. The "Y Grant Program" falls under Office X's jurisdiction, and thirty percent of the attorney's salary as counsel to Office X is paid by the Y Grant Program. An individual, Mr. S, contacted the attorney about a claim his architectural firm had against City X: Mr. S had performed services on a project for City X that was added to an existing contract as an extension, without public bidding. Mr. S told the attorney the city had planned to be reimbursed with federal funds for the project, but that the city violated federal guidelines by failing to open the project to public bid and so was not entitled to federal reimbursement, which the Y Grant Program officially refused; Mr. S believes this refusal is why the city will not pay him. The attorney confirmed with the Y Grant Program's director that the refusal was given and is final, though she mentioned the Department of Environmental Management might separately fund part of the project. The attorney states he was unaware of the matter until Mr. S contacted him and that no one handling the Y Grant Program has sought his opinion on it. He asked whether he may represent Mr. S against City X, and separately whether he may instead refer Mr. S to another attorney who rents nearby office space.

The panel quoted Rule 1.7(b), barring representation that may be materially limited by the lawyer's responsibilities to another client, a third person, or his own interests, unless he reasonably believes the representation will not be adversely affected and the client consents after consultation. Because the Y Grant Program both denied the federal funds at issue and pays part of the attorney's salary, the panel found his relationship to the Program could be a limiting interest under Rule 1.7(b). It assumed the attorney met Rule 1.7(b)(1)'s reasonable-belief requirement, and held that to satisfy Rule 1.7(b)(2) he must obtain Mr. S's informed consent after a consultation disclosing his relationship with the Y Grant Program, citing New Jersey Advisory Committee on Professional Ethics Opinion 373 for the principle that informed consent requires full disclosure, meaning a reasonable effort to expose present problems and anticipate future perils through specific details and an explanation of foreseeable consequences, not conclusory statements, citing DeBott v. Parker, 560 A.2d 1323, 1329 (1988). The panel held the attorney may properly represent Mr. S provided he satisfies Rule 1.7(b)(1) and (2).

On the referral question, the panel assumed the attorney was asking about referring Mr. S absent compliance with Rule 1.7(b)(1) and (2); if those requirements are met, the attorney could refer Mr. S to any attorney regardless of partnership status. The attorney disclosed that he rents space from attorneys "M" and "J," maintains his own stationery, pays his own malpractice insurance, and has an independent-contractor relationship with them, but shares a phone with them that is answered "M and J." The panel quoted Rule 7.5(d), permitting lawyers to state or imply they practice in a partnership only when that is the fact, and explained that to avoid the appearance of a partnership where none exists, an attorney must maintain separate stationery, business cards, building directories, and announcements, and phones must be answered with the attorney's own name or a neutral salutation such as "Law Offices." The panel held that answering the shared phone "M and J" creates the appearance of an association with Attorneys M and J and violates Rule 7.5(d); it could not opine on any building signs or diagrams without seeing them, citing its own Digest of Ethics Advisory Panel Opinion 88-5, and found all other aspects of the office arrangement consistent with a group of independent attorneys. Because the phone answering creates the appearance of an association, the panel held that absent compliance with Rule 1.7(b)(1) and (2), it would be improper for the attorney to refer Mr. S's case to Attorneys M or J or their associates.

Currency note

This opinion was issued in January 1990, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.7 and 7.5 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: If a government program I'm affiliated with denied a benefit to a party, can I represent someone suing that party privately?

A: Only with informed consent, per this opinion. The panel held the attorney may represent Mr. S against the city if he obtains Mr. S's informed consent after disclosing his relationship with the Y Grant Program, satisfying Rule 1.7(b)(1) and (2).

Q: What counts as "informed consent" under Rule 1.7(b)?

A: The opinion states informed consent requires full disclosure, meaning a reasonable effort to expose present problems and anticipate future perils through specific details and an explanation of foreseeable consequences, not conclusory statements.

Q: Can I avoid the conflict by just referring the case to attorneys down the hall instead of handling it myself?

A: Not if your shared office setup creates an appearance of partnership. The panel held that because the attorney's shared phone was answered "M and J," creating an appearance of association under Rule 7.5(d), referring the case to those attorneys without the same Rule 1.7(b) informed consent would be improper.

Q: How should a shared office phone be answered to avoid implying a partnership that doesn't exist?

A: Per the opinion, phones must be answered with either the attorney's name alone or a neutral salutation such as "Law Offices" that does not give rise to the appearance of an association.

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 from a lawyer's responsibilities to a third person or the lawyer's own interests, and Rule 7.5(d), barring lawyers from implying a partnership that does not exist, to an inquiry about representing a private client against a city that a state program partly funding the attorney's government salary had denied reimbursement to, and about referring that client to office-sharing attorneys.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest: general rule)
• MR 7.5 (firm names and letterheads)
• RI RPC 1.7(b), 7.5(d), as adopted November 15, 1988

Statutes:

• None cited.

Cases:

• DeBott v. Parker, 560 A.2d 1323, 1329 (1988), cited for the standard that informed consent requires full disclosure through specific details and an explanation of foreseeable consequences, not conclusory statements.

Other opinions cited:

• New Jersey Advisory Committee on Professional Ethics, Opinion 373, cited for the requirement that informed consent requires full disclosure.
• RI EAP Digest of Ethics Advisory Panel Opinion 88-5, cited for the panel's inability to opine on building signs or diagrams without reviewing them.

See also

• ABA Formal Op. 507: Office Sharing Arrangements with Other Lawyers
• ABA Formal Op. 97-409: Conflicts of Interest: Successive Government and Private Employment
• RI EAP Op. 90-11: Rule 1.7 Zoning Board Appearance

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%2090-16.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 90-16, REQUEST #84
Issued January 18, 1990

An attorney seeks Panel advice as to whether he may properly represent a certain individual under the circumstances he describes.

The attorney advises the Panel that he maintains a private practice and also holds a part time position as legal counsel to a certain state office ("Office X") which is part of the Governor's Executive Department. The attorney states that the "Y Grant Program" is under the jurisdiction of Office X; thirty percent of the attorney's salary as legal counsel to Office X is paid by the Y Grant Program.

The attorney advises the Panel that he was contacted by an individual, Mr. S, regarding a claim which Mr. S believes his architectural firm has against City X. The attorney states that Mr. S performed services on a specific project for City X, and that this work was added to an existing contract which Mr. S's firm had with City X, as an extension. The attorney indicates that City X did not publicly bid the services at issue.

The attorney states that Mr. S informs him that he is aware that the City was planning to be reimbursed with federal funds for the projects in which he was one of the participants. Mr. S informs the attorney that the City violated federal guidelines by failing to open the project to public bid and, as a result, was not entitled to reimbursement with federal funds. Reimbursement was officially refused by the Y Grant Program. Mr. S states that he believes this is why the City refuses to pay him.

The attorney states that he asked the Program Director of the Y Grant Program if she was aware of the claim for reimbursement by the City and she responded that she did, indeed give the refusal required by federal guidelines. This refusal is final, but the Program Director indicated that she was aware that some resolution was possible apart from her office in that the Department of Environmental Management might fund some of the project in the absence of reimbursement with federal funds. The attorney states that he was not aware of this matter until contacted by Mr. S. The attorney states that no one from that section of Office X which handles the Y Grant Program has asked him for his opinion or advice. The attorney asks if he may properly represent Mr. S in his attempts to collect the money due him from City 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

Since the Y Grant Program is both the entity denying federal funds and is also responsible for paying the attorney's salary, the attorney's relationship to the Y Grant Program could be considered a limiting interest within the meaning of Rule 1.7(b). The Panel assumes that the attorney has met the requirement of Rule 1.7(b)(1) in that he reasonably believes that his representation of Mr. S will not be adversely affected by his relationship with the Y Grant Program. In order to fulfill the requirement of Rule 1.7(b)(2) the attorney must obtain consent from Mr. S after a consultation in which the attorney discussed his relationship with the Y Grant Program. Client consent must be informed consent and informed consent requires full disclosure. See, e.g. New Jersey Advisory Committee on Professional Ethics Opinion 373. "Full disclosure" involves a reasonable effort to expose present problems and to anticipate future perils. Full disclosure is not a set of conclusory statements but a recitation of specific details and an explanation of foreseeable consequences. DeBott v. Parker, 560 A.2d 1323 at 1329 (1988).

The Panel takes the position that the attorney may properly represent Mr. S in connection with Mr. S's attempt to collect money due him provided the attorney satisfies the requirements of Rule 1.7(b)(1) and (2).

In a second part of his letter the attorney asks the Panel whether he may properly refer Mr. S to another attorney who rents office space nearby. In responding to this portion of the attorney's inquiry the Panel assumes that the attorney is asking about the propriety of a referral in the absence of compliance with Rule 1.7(b)(1) and (2). If the requirements of Rule 1.7(b)(1) and (2) are met then the inquiring attorney could, of course, refer Mr. S to another attorney regardless of whether that attorney was the inquiring attorney's partner or not.

The inquiring attorney advises the Panel that he rents space from attorneys named Mr. M and Mr. J. The attorney states that he has his own stationery, pays his own malpractice insurance and that any professional relationship with Messrs. M and J is on an independent contractor basis. The attorney states that he shares a phone with Messrs. M and J and that this phone is answered "M and J".

Rule 7.5 titled "Firm Names and Letterheads" provides, in pertinent part that

(d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.

To avoid the appearance of a partnership or other affiliation when none exists, an attorney must maintain his or her own stationery, and must use separate business cards, building directories and other announcements. Phones must be answered with either the attorney's name alone or with a neutral salutation such as "Law Offices" which does not give rise to the appearance of an association. Thus, the Panel takes the position that for the attorney's business phone to be answered "M and J" creates the appearance that he is associated with Attorneys "M and J" and thus violates Rule 7.5(d). In the absence of pictures or diagrams of the signs on the building it is impossible for the Panel to render an opinion as to their propriety. See Digest of Ethics Advisory Panel Opinion 88-5. All other aspects of the office arrangement described is consistent with a group of independent attorneys. In the absence of compliance with Rule 1.7(b)(1) and (2), however, the phone answered "M and J" creates the appearance of an association and would make it improper for the attorney to refer the case to Attorneys M or J or to their associates.

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.