I'm a part-time assistant city solicitor who also has a private practice with my firm. Which matters can I and my firm handle without a conflict, and does my role disqualify the whole firm from cases against the city?

Plain-English summary

A part-time assistant city solicitor asked what limits her city role placed on her part-time private practice. She prosecutes criminal cases in district court for the city and provides research and legal advice to city department heads, drawing a salary that she neither shares with nor collects a portion of from her firm. She recuses whenever a firm attorney is hired in a matter she would otherwise prosecute, and she does not personally appear before any city board or agency, although other firm attorneys have appeared before the Zoning Board, Probate Court, and the Administrative Adjudication Division.

The panel applied Rule 1.7 (conflict of interest), noting Professor Hazard's observation that the "reasonable belief" requirement amounts to a virtually per se ban on simultaneous representation of adverse interests. It reasoned that accepting a position in the city solicitor's office makes the city a client of the attorney, quoting a New Jersey opinion that an attorney representing a municipality has the entire municipality as a client and should avoid retainers that place the lawyer in opposition to it. The panel concluded that the attorney may properly function as a part-time assistant city solicitor provided that, as a private attorney, she does not represent a client with an interest adverse to the city, consistent with its Opinion 90-14.

The panel then classified categories of matters by whether the private client's interest is directly adverse to the city. Probate: a party to a probate action is generally not in a position adverse to the town or city where the action occurs. Zoning: a party to a zoning action occupies a position directly adverse to the city, because the city's interests are explicitly involved in every matter before its Zoning Board (quoting a New Jersey advisory opinion on municipal attorneys and land development). District court: if the case involves the city in any capacity, the client is sufficiently adverse to bar the attorney and her firm, but the many district-court cases not involving the city are not. Municipal court: because that court hears violations of city ordinances and the housing code, any matter brought there involves the city's interests, so representation is impermissible. Administrative adjudication (traffic): where city police officers are witnesses and part of the prosecution, the party is adverse and the attorney could not represent the client, but where only state police are involved the attorney could. The panel added that whether the city is labeled plaintiff or defendant is not determinative; the adverse nature of the interests controls.

Finally, applying Rule 1.10(a) (imputed disqualification), the panel took the position that while the attorney is a part-time assistant city solicitor, all members of her firm are disqualified from representing a client whose position is directly adverse to the city, consistent with its Opinion 89-1. It concluded that because the attorney could not herself represent a person charged criminally by the city in district court, Rule 1.10(a) prohibits any member of her firm from doing so even though she has recused.

Currency note

This opinion was issued in September 1990, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which amended the conflict-of-interest and imputation rules addressed here, and the statutes cited may have since changed. Treat this page as historical context, not current guidance. Verify against current rules and statutes before relying on anything mentioned here.

Common questions

Q: Can a lawyer serve as a part-time assistant city solicitor and keep a private practice?

A: Under this opinion, yes, provided that as a private attorney she does not represent any client with an interest adverse to the city; the panel treated accepting the position as making the city her client.

Q: Are zoning-board and municipal-court matters treated as adverse to the city?

A: Yes. The panel held that a party before the Zoning Board is directly adverse to the city, and that because municipal court hears city-ordinance and housing-code violations, any matter there involves the city's interests and is impermissible.

Q: Does the solicitor's role disqualify her whole firm, even if she recuses?

A: Yes. Applying Rule 1.10(a), the panel held that while she serves as assistant city solicitor, all firm members are disqualified from representing clients directly adverse to the city, including a defendant the city charges criminally, notwithstanding her recusal.

Q: Is a traffic-adjudication matter always adverse to the city?

A: No. The panel held it depends on the witnesses: where city police are part of the prosecution the party is adverse, but where only state police are involved the attorney could represent the party.

Background and rules framework

The opinion applies Rule 1.7 (conflict of interest: current clients) and Rule 1.10 (imputed disqualification) of the Rhode Island Rules of Professional Conduct, adopted effective November 15, 1988, to a lawyer holding public office as a part-time assistant city solicitor. It refers to Rhode Island statutes on municipal zoning power (§ 45-24-1), probate-court jurisdiction (§ 8-9-2), municipal-court jurisdiction (§ 45-2-19), and administrative adjudication of traffic offenses (§ 31-43-1 et seq.), and to New Jersey ethics opinions on municipal attorneys.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest: current clients)
• MR 1.10 (imputed disqualification)
• RI RPC 1.7, 1.7(a), 1.10, 1.10(a), as adopted November 15, 1988

Statutes:

• R.I. Gen. Laws § 45-24-1 (1956, 1988 Reenactment), municipal power to regulate land use
• R.I. Gen. Laws § 8-9-2 (probate-court jurisdiction)
• R.I. Gen. Laws § 45-2-19 (1956, 1988 Reenactment), municipal-court jurisdiction
• R.I. Gen. Laws § 31-43-1 et seq. (1956, 1982 Reenactment), administrative adjudication of traffic violations

Cases:

• None cited.

Other opinions cited:

• New Jersey Supreme Court Advisory Committee Opinion 193 (municipal attorney should not represent a developer operating in the municipality)
• New Jersey Supreme Court Advisory Committee on Professional Ethics Opinion 173 (an attorney for a municipality has the entire municipality as a client)
• RI EAP Opinion 90-14 (Feb. 27, 1990)
• RI EAP Opinion 89-1 (Feb. 21, 1989)

See also

• RI EAP Op. 90-16: State Counsel's Funding Conflict and Informed Consent to Sue a City
• RI EAP Op. 90-20: Of-Counsel Designation and the Rhode Island Office
• RI EAP Op. 2005-02: Town Solicitor and a Prior Resident Consultation

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%2090-36.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 #90-36, Request #115
Issued September 18, 1990

An attorney seeks Panel advice as to what ethical limitations her part time role as Assistant City Solicitor places on her part time private practice.

The attorney advises the Panel that she is assigned to prosecute criminal cases in the appropriate division of district court on behalf of the city. The attorney states that she also receives outside assignments as part-time Assistant City Solicitor, primarily involving research and legal advice for city department heads and directors. The attorney indicates that she receives a salary from the city and does not give any part of this fee to the firm of which she is a member. Similarly she does not receive a percentage of the fee earned when another attorney in the firm handles a case involving the city.

The attorney states that whenever an attorney in the firm is hired to represent a client in which she, as assistant city solicitor, would handle prosecution she recuses herself and it is handled by another assistant city solicitor. The attorney advises the Panel that she does not appear before any board or agency of the city, but other attorneys in the firm have appeared before the Zoning Board, Probate Court and the Administrative Adjudication Division of the city.

The attorney first asks the Panel whether she may properly continue to serve as assistant city solicitor as long as she has not represented a client with an interest adverse to the city and declines to do so in the future.

Rule 1.7, titled "Conflict of Interest" 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

In reviewing the practical effect of Rule 1.7(a) Professor Hazard notes that the requirement of "reasonable belief" amounts to a virtually per se ban on simultaneous representation of adverse interests, since the words impose an external standard of propriety. 1 G. Hazard The Law of Lawyering 132-133 (1989).

Accepting a position in the city solicitor's office makes the city a client of the attorney. In Opinion 173 the New Jersey Supreme Court Advisory Committee on Professional Ethics notes:

In a broad sense an attorney representing a municipality or any of its agencies has as his 'clients' the entire municipality, and he should avoid any retainers from others which may place him in a position where he appears to be either seeking relief or favor from the municipality or any of its agencies for a private client or to oppose action by the municipality, or its agencies on behalf of a private client.

The Panel takes the position that the attorney may properly function as a part-time assistant city solicitor provided she, as a private attorney, does not represent a client with an interest adverse to the city. Accord: R.I. Ethics Advisory Panel opinion 90-14 (February 27, 1990). The attorney also asks the Panel what effect her role as part-time assistant city solicitor has on the other members of her firm.

Rule 1.10 titled "Imputed Disqualification" 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 Rules 1.7, 1.8(c), 1.9 or 2.2.

The Panel takes the position that while the attorney is a part time assistant city solicitor all members of her firm are disqualified from representing a client whose position is directly adverse to the city. Accord: R.I. Ethics Advisory Panel opinion 89-1 (February 21, 1989). The final question the attorney poses is what constitutes an interest which is "directly adverse" within the meaning of Rule 1.7 in a variety of situations, which the attorney lists.

The attorney first asks whether representing a client in a probate proceedings would place her in a role which is adversarial to the city and thus impermissible.

The general jurisdiction of a probate court in this state is primarily the probate of wills; the granting of administration, the appointment of custodians, of administrators, of guardians of persons and estates, . . . and of conservators; the accepting and allowing of bonds, inventories, and accounts of executors, administrators, and guardians; the granting of leave to sell at public or private sale, or to mortgage property, as hereinafter provided; the making of partition of the real estate of deceased persons; of the adoption of persons eighteen (18) years of age or older; of change of names of persons; of assigning dower to widows; of setting off and allowing real estate and personal property to widows and surviving spouses. G.L. 1956 (1985 Reenactment) § 8-9-2.

The interests of the city thus are generally not implicated, and the Panel takes the position that in general a party to a probate action is not in a position adverse to the town or city in which the action occurs.

The attorney next asks whether the interests of a client who is party to a proceeding before a city zoning board would be adverse to that city within the meaning of Rule 1.7. The power of a city or town to regulate land use is set forth in G.L. 1956 (1988 Reenactment) § 45-24-1:

Power of councils -- Scope of ordinances. -- For the purpose of promoting the public health, safety, morals, or general welfare, the city council of any city, and the town council of any town, upon the approval of the financial town meeting of the town, shall have the power in accordance with the provisions of this chapter within the limits of the city or town by ordinance to regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts and other open spaces, the density of population, the location and use of buildings, structures and land for trade, industry, residence, or other purposes . . .

The city's interests are explicitly involved in every matter brought before its Zoning Board.

"[T]he subject of land development is one in which the likelihood of transactions with a municipality and the room for public misunderstanding are so great that a member of the bar should not represent a developer operating in a municipality in which the member of the bar is the municipal attorney or the holder of any other municipal office of apparent influence." New Jersey Supreme Court Advisory Committee opinion 193.

The Panel takes the position that a party to a zoning action occupies a position directly adverse to the town or city in which the action occurs.

The attorney next asks if the interests of a client who is party to a proceeding in the state district court would be adverse to the city where the court is located. If the case in question involves the city in any capacity, the client would occupy a position sufficiently adverse to bar the attorney and her firm from representing the client. A wide range of cases which do not involve the city in any capacity may be brought in the state district court, however, and these would not involve an interest adverse to the city.

The attorney's next question is whether proceedings in the city's municipal court would constitute adversarial proceedings for purposes of applying Rule 1.7 to her and her firm under the circumstances described. The municipal court in question is authorized to exercise original jurisdiction to "hear and determine causes involving violation of any ordinance . . . of the city and any violation of the provisions of chapter 24.3 of this title entitled 'The Rhode Island Housing Maintenance and Occupancy Code . . .'" G.L. 1956 (1988 Reenactment) § 45-2-19.

Any matter brought in municipal court thus involves the city's interests. It would be impermissible under Rule 1.7 for the attorney or her firm to represent a client on a matter in municipal court.

The attorney next asks whether the interests of a client who is party to a proceeding before a hearing officer of the division for administrative adjudication (AAD) of the Department of Transportation would be adverse for purposes of applying Rule 1.7. This AAD is "charged with the administration and adjudication of traffic violations" G.L. 1956 (1982 Reenactment) § 31-43-1 et seq. Thus, in many instances the city's police officers will be witnesses and an integral part of the prosecution process. In those instances the Panel takes the position that a party to an administrative adjudication hearing occupies a position adverse to the city; the attorney could not properly represent a party under that circumstance. In other situations, however, the state police may be the only witness involved in the prosecution process. If no city police are involved, then the attorney could properly represent a party to an administrative adjudication hearing.

The attorney also asks whether a determination of adversity is affected by whether the city is plaintiff or a defendant in the action. The label of "plaintiff" or "defendant" is not determinative; the adverse nature of the interests at issue, as discussed, is instead the controlling factor.

The attorney's final question is whether a member of her firm may represent a person charged criminally by the city in District Court if the attorney recuses herself and does not participate in the prosecution on behalf of the city.

Rule 1.10 titled "Imputed Disqualification" 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 Rules 1.7, 1.8(c), 1.9 or 2.2.

The Panel takes the position that since the attorney could not herself represent the client at issue Rule 1.10(a) prohibits any member of her firm from representing that client even though she has recused herself.

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.