My personal ties to town council members will make three of them recuse, leaving only the four votes needed and requiring unanimity for my client. Can I still represent the client before the council?

Plain-English summary

The inquiring attorney represents, in their individual capacities, certain members of a town council; some of those members are personal friends and/or business associates of the attorney. Recently a client sought the attorney's services in a matter before the same town council. The attorney contacted the council members to advise them of the attorney's upcoming involvement, and several members recused themselves from the hearing because of their personal or business relationship with the attorney. The town charter requires four affirmative votes to act favorably on the client's request; because three members recused, the recusals effectively required a unanimous vote of the remaining members. The attorney asked whether he may represent the client before the council knowing that three members will recuse, leaving only four voting members, the minimum required for the council to act.

The panel said Rule 1.7(b) ("Conflict of Interest: General Rule") applies, and quoted it: a lawyer shall not represent a client if the representation may be materially limited by the lawyer's responsibilities to another client or a 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 cited the comments, which explain that loyalty is impaired when the lawyer cannot consider, recommend, or carry out an appropriate course of action because of other responsibilities or interests, and that the critical questions are the likelihood a conflict will eventuate and whether it will materially interfere with the lawyer's independent professional judgment.

Applying the rule, the panel found the lawyer's own interest is his personal relationship with the town council, and that a conflict of interest exists because the attorney is unable to effectively represent the client at the hearing: the limited number of council members qualified to vote materially limits the client's ability to be granted the license. Given the recusals, the panel said that if the attorney reasonably believes the client's interests are adversely affected, this is not a conflict the client can waive. The panel noted its guidance is limited to the Rules of Professional Conduct and does not reach the State Ethics Code or other laws.

In practice

Under this opinion, a lawyer whose personal and business relationships with town council members trigger recusals that leave only the minimum number of members needed to act faces a Rule 1.7(b) material-limitation conflict, because the shrunken voting body materially limits the client's ability to obtain the requested license. The opinion holds that where the lawyer reasonably believes the client's interests are adversely affected, the conflict is not one the client can waive.

Common questions

Q: Can my client just consent so I can represent them before the council?

A: Per the opinion, not here; if the attorney reasonably believes the client's interests are adversely affected by the recusals, this is not a conflict the client can waive.

Q: Why is this a conflict at all?

A: Per the opinion, the lawyer's own interest is his personal relationship with the council, and the recusals materially limit the client's ability to be granted the license, so under Rule 1.7(b) the lawyer cannot effectively represent the client.

Q: What makes a possible conflict a disqualifying one?

A: Per the opinion and the comments to Rule 1.7, the critical questions are the likelihood a conflict will eventuate and whether it will materially interfere with the lawyer's independent professional judgment or foreclose courses of action that should be pursued for the client.

Background and rules framework

The opinion applies Rhode Island Rule 1.7(b) (conflict of interest: general rule / material limitation), corresponding to Model Rule 1.7(b), and its comments on when loyalty is impaired. The panel treated the lawyer's personal relationship with the council as the lawyer's "own interest," found the recusals materially limited the client, and concluded the conflict is non-waivable where the lawyer reasonably believes the client's interests are adversely affected.

Citations and references

Rules of Professional Conduct:

• MR 1.7(b) (conflict of interest: material limitation)
• RI RPC 1.7(b); comments to Rule 1.7

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 92-32: May Represent School Department While Opposing the Town's Zoning Board
• RI EAP Op. 92-41: Town Solicitor Defending the Town in a Councilmember's Tax Suit
• RI EAP Op. 92-56: Lawyer-Spouse Hearing Officer and Attorney Husband

Currency note

This opinion was issued in early 1993 (Opinion 92-86, issued March 15, 1993), 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, which renumbered and amended Rule 1.7 (conflict of interest: current clients). 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.

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%2092-86.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS ADVISORY PANEL
Opinion 92-86, Request #314
Issued March 15, 1993

An attorney seeks Panel advice with regard to the following circumstances. The attorney represents in their individual capacities, certain members of a town council. Some of the members of the town council are personal friends and/or business associates of the attorney. Most recently, a client sought the inquiring attorney's services in a matter before the same town council. The attorney contacted the town council members to advise them of the attorney's future involvement in an upcoming hearing. Several members of the town council recused themselves from the hearing due to the personal and/or business relationship with the attorney. The attorney's concern is that the town charter requires four affirmative votes to act favorably upon his client's request. Because three members recused themselves from the proceedings as a result of their relationship with the inquiring attorney, the recusals effectively required a unanimous vote of the remaining council members for approval or grant of his client's request. The question is whether the attorney may appear and represent a client before this town council when he has knowledge that three members will recuse themselves leaving only four voting members, the minimum number required for the council to act.

The Panel believes that Rule 1.7(b) entitled "Conflict of Interest: General Rule" applies to this inquiry. The Rule states that:

(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.

The comments to the Rule state that "loyalty to a client is impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyer's other responsibilities or interests. The conflict in effect forecloses alternatives that would otherwise be available to the client. A possible conflict does not itself preclude the representation. The critical questions are the likelihood that a conflict will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client."

In this case, the lawyer's own interest is his personal relationship with the town council. There exists a conflict of interest because the attorney is unable to effectively represent the client in the hearing. The limited number of councilpeople qualified to vote is materially limiting the client's ability to be granted the license. Given the recusals, if the attorney reasonably believes that his client's interests are adversely affected, this is not a conflict that the client can waive. The Panel's guidance is restricted to interpretations of the Rules of Professional Conduct and does not extend to issues under the State Ethics Code or any other rules, regulations or laws that may have a bearing on the issues raised by this inquiry.