I am a police-department lawyer and Assistant City Solicitor. Can I do paid research for private law firms or take referral fees in cases involving my city?

Plain-English summary

The inquiring attorney is a member of City A's police department assigned as legal counsel to the department, and also serves as an Assistant City Solicitor representing City A in the Family, District, and Municipal Courts. The attorney asked whether the relationship with City A precludes performing research for law firms on civil cases unrelated to City A, or accepting a fee for cases referred to a law firm that represents clients in matters involving City A, with the attorney paid at an hourly rate as an independent legal researcher.

The opinion first notes that, as an Assistant City Solicitor, the attorney has a client-lawyer relationship with City A (citing Opinion 90-14), so under Rule 1.7 the attorney may not represent any client with interests directly adverse to City A. It then applies Rule 1.11 (successive government and private employment), noting the Panel has applied Rule 1.11 to simultaneous government and private practice (citing Opinion 93-70). Rule 1.11(a) generally prohibits representing a private client in a matter in which the lawyer participated as a public officer or employee, so the attorney is disqualified from any matter in which he participated as a public employee. Under Rule 1.11(d), the attorney may not negotiate private employment or research projects with the firm while any firm member is an attorney in any matter in which the attorney is participating personally and substantially for City A.

The opinion further concludes that, although the attorney would not be a full-time member of the firm, Rule 1.11(a) extends to a government lawyer becoming an independent researcher for a firm, so the relationship triggers imputed disqualification under Rule 1.11(a). Accordingly, the firm may not undertake or continue to represent a private client in a matter in which the attorney participated as a government employee unless the attorney is screened from any participation, receives no part of the fee under Rule 1.11(a)(1), and the municipality is notified. The opinion notes its guidance is limited to the Rules of Professional Conduct.

In practice

Under this opinion, the attorney's dual public roles make City A a current client, so Rule 1.7 bars taking on anyone directly adverse to the city. Rule 1.11 then governs the moonlighting: the attorney cannot do private research or take referral fees in matters he participated in for the city, and cannot even negotiate with a firm while it is opposite him in a City A matter he is handling personally and substantially. The opinion extends Rule 1.11(a)'s imputation to an independent-researcher arrangement, so a firm using him must screen him, deny him any fee, and notify the municipality to take a matter he worked on as a government employee.

Common questions

Q: Can a city solicitor also do paid research for private law firms?

A: Not without limits. The opinion concludes the attorney may not, under Rule 1.11, work on matters he participated in for the city, and may not represent interests directly adverse to City A under Rule 1.7.

Q: Does Rule 1.11 apply even though the attorney holds both jobs at once?

A: Yes. The opinion notes the Panel has applied Rule 1.11 to simultaneous government and private practice, citing Opinion 93-70.

Q: What must a firm do to use the attorney as a researcher on a matter he handled for the city?

A: The opinion states the firm may not take or continue such a matter unless the attorney is screened from participation, receives no part of the fee under Rule 1.11(a)(1), and the municipality is notified.

Background and rules framework

The opinion interprets Rhode Island Rules of Professional Conduct 1.7 (conflict of interest: general rule) and 1.11 (successive government and private employment), analogs of the corresponding Model Rules. Rule 1.7 bars representing a client directly adverse to a current client (City A); Rule 1.11(a) bars private representation in a matter the lawyer handled as a public employee and imputes that disqualification to the lawyer's firm absent screening, no fee, and notice; Rule 1.11(d) bars negotiating private employment with an adverse firm in a matter the lawyer is handling; Rule 1.11(e) defines "matter." The opinion cites its Opinions 90-14 and 93-70.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / RI RPC 1.7 (conflict of interest; current client directly adverse)
• MR 1.11 / RI RPC 1.11(a), (d), (e) (successive government and private employment; imputed disqualification, screening, notice)

Other opinions cited:

• RI EAP Opinion 90-14 (Issued September 18, 1990): Assistant City Solicitor has a client-lawyer relationship with the city
• RI EAP Opinion 93-70 (Issued January 13, 1993): Rule 1.11 applied to simultaneous government and private practice

See also

• RI EAP Opinion 93-62: a legislator-lawyer's partnership with legislative counsel under 1.11
• RI EAP Opinion 93-83: a city law department that both defends and prosecutes employees under 1.7

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%2093-88.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

(FINAL)
ETHICS ADVISORY PANEL
OPINION #93-88, REQUEST #431
Issued October 19, 1993

The inquiring attorney is a member of City A's police department. He/she is assigned to the position of legal counsel for the police department and provides legal advice to it on various issues. He/she also serves as an Assistant City Solicitor for City A whereby he/she represents City A in the Family, District and Municipal Courts. The inquiring attorney asks whether his/her relationship with City A precludes him/her from performing research for law firms on civil cases unrelated to City A, or from accepting a fee for cases referred by him/her to a law firm that represents clients in matters involving City A. The inquiring attorney would be paid at an hourly-rate as an independent legal researcher.

The issues raised by this inquiry implicate several of the Rules of Professional Conduct. At the outset, the Panel notes that inquiring attorney has client/lawyer relationship with City A by virtue of his/her position as an Assistant City Solicitor. See, Opinion #90-14 (Issued September 18, 1990). Thus, under Rule 1.7 (Conflict of Interest: General Rule), the inquiring attorney may not represent any client with interest directly adverse to City A.

Using that as a backdrop, the propriety of the inquiring attorney performing research on civil cases unrelated to City A, or of him/her accepting a fee for cases he/she refers to a law firm representing clients involving City A, is addressed by Rule 1.11 entitled "Successive Government and Private Employment." That Rule provides in pertinent part as follows:

Rule 1.11. Successive Government and Private Employment. - (a) Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated as a public officer or employee. No lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:

(1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.

(d) Except as law may otherwise expressly permit, a lawyer serving as public officer or employee shall not:

(2) negotiate for private employment with any person who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially...

(e) As used in this Rule, the term "matter" includes:

(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties, and

(2) any other matter covered by the conflict of interest rules of the appropriate government agency.

Though Rule 1.11 addresses successive government and private employment, this Panel has applied it to situations involving simultaneous government and private practice. See, Opinion #93-70 (Issued January 13, 1993).

Rule 1.11(a) embodies the general prohibition of representing a private client in connection with a matter in which the lawyer participated as a public officer or employer. Under these facts, the inquiring attorney is employed as both a police officer of City A and as an Assistant City Solicitor of City A. As a result of his/her positions, he/she is disqualified from participation in any matter in which he/she participated as a public employee.

Under Rule 1.11(d), the inquiring attorney may not negotiate private employment or research projects with the private law firm while any member of the private law firm is an attorney in any matter in which the inquiring attorney is participating personally and substantially on behalf of City A.

Further, though the inquiring attorney is not a full-time member of the law firm he/she desires to work for, the Panel believes Rule 1.11(a) extends to situations in which a government lawyer becomes an independent researcher for a firm. Thus, the Panel believes the inquiring attorney's relationship with the law firm triggers the imputed disqualification principle under Rule 1.11(a). Accordingly, the Panel concludes that the law firm with which the inquiring attorney seeks to perform research may not undertake or continue to represent a private client in a matter in which the inquiring attorney participated as a government employee unless the inquiring attorney is screened from any participation in the matter and receives no part of the fee pursuant to Rule 1.11(a)(1) and the municipality is notified.

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 bearing on the issue raised by this inquiry.