I defend an insurance company's workers' comp claims against one of its large self-insured-up-to-a-deductible clients. A different worker, employed by an unrelated policyholder of the same insurer, now wants me to represent her against the insurer directly. Can I take her case with everyone's consent?

Plain-English summary

The attorney represents Insurance Company X in defense of workers' compensation claims made against a large manufacturing company, Company Y, which is Insurance Company X's insured. This is the only work the attorney does for Insurance Company X, and Company Y is effectively the real party in interest because it has a $100,000 deductible and is self-insured up to that amount. Separately, an individual, Ms. B, asked the attorney to represent her in connection with her own work-related injury. Ms. B's employer is a different insured of Insurance Company X, unrelated to Company Y. The attorney asked whether he may represent Ms. B against Insurance Company X if both Insurance Company X and Ms. B consent.

The panel quoted Rule 1.7(a)'s bar on representing a client directly adverse to another client absent reasonable belief the representation will not adversely affect the other relationship and consent after consultation. Because the attorney represents Insurance Company X in defense of claims against its insured, Company Y, the panel treated both entities as the attorney's clients for conflict-of-interest purposes, and assumed, for purposes of the response, that there is no relationship, direct or indirect, between Ms. B's employer and Company Y. The panel assumed the attorney met Rule 1.7(a)(1)'s reasonable-belief requirement, and held that to satisfy Rule 1.7(a)(2) he must obtain consent from an authorized official within Insurance Company X after a consultation discussing the ramifications of representing Ms. B, and must also obtain Ms. B's consent after a consultation discussing his relationship with Insurance Company X, citing New Jersey Advisory Committee on Professional Ethics Opinion 373 and DeBott v. Parker, 560 A.2d 1323, 1329 (1988), for the principle that informed consent requires full disclosure through specific details and an explanation of foreseeable consequences, not conclusory statements. The panel held the attorney may properly represent Ms. B in connection with her work-related injuries provided he satisfies Rule 1.7(a)(1) and (2).

Currency note

This opinion was issued in May 1990, 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: If I defend an insurer for one of its insureds, can I later sue that same insurer on behalf of someone connected to a different, unrelated insured?

A: Potentially yes, with consent. The panel held the attorney may properly represent Ms. B against Insurance Company X provided he satisfies Rule 1.7(a)(1) and (2), including obtaining informed consent from both the insurer and Ms. B.

Q: Whose consent do I need, and from whom at the insurance company?

A: Per the opinion, the attorney must obtain consent from an authorized official within the insurance company after a consultation discussing the ramifications of the new representation, and must also obtain the new client's consent after disclosing his relationship with the insurance company.

Q: What makes consent "informed" under Rule 1.7(a)(2)?

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.

Background and rules framework

The opinion applies Rule 1.7(a) of the Rhode Island Rules of Professional Conduct, as adopted effective November 15, 1988, barring representation directly adverse to another client absent reasonable belief and informed consent, to an inquiry about an insurance defense attorney representing a new client against the same insurer he represents in unrelated claims involving a different insured.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest: general rule)
• RI RPC 1.7(a), 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.

See also

• RI EAP Op. 90-16: State Counsel Conflict, Referral
• 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%2090-24.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 90-24, REQUEST #103
Issued May 31, 1990

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

The attorney advises the Panel that he represents Insurance Company X in defense of workers' compensation claims made against a certain large manufacturing company (Company Y). The attorney states that this is the only work he does for Insurance Company X and that the real party in interest is Company Y, since Company Y has a $100,000 deductible and is, in effect, self-insured up to that point.

The attorney states that an individual, (Ms. B), has asked him to represent her in connection with her work-related injury. Ms. B's employer is one of Insurance Company X's insureds, and is not Company Y. The attorney asks whether he may represent Ms. B against Insurance Company X if both Insurance Company X and Ms. B consent.

Rule 1.7 provides, in pertinent part:

(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.

Since the attorney represents Insurance Company X in defense of claims made against its insured, Company Y, both entities are the attorney's clients for purposes of a conflict of interest analysis. For purposes of this response, the Panel assumes that there is no relationship, direct or indirect between Ms. B's employer and Company Y. The Panel also assumes that the attorney has met the requirement of Rule 1.7(a)(1) in that he reasonably believes that his representation of Ms. B will not be adversely affected by his relationship with Insurance Company X. In order to fulfill the requirement of Rule 1.7(a)(2), the attorney must obtain consent from an authorized official within Company X after a consultation in which he discussed the ramifications of his representation of Ms. B. The attorney must also obtain Ms. B's consent after a consultation in which he discussed his relationship with Insurance Company X. 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 Ms. B in connection with her work related injuries provided he satisfies the requirement of Rule 1.7(a)(1) and (2).

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.