I represent a doctor before the medical board and my co-counsel wants to cross-examine the board's expert, a doctor I have separately represented. Does Rule 1.7 forbid it?

Plain-English summary

Attorney A represented Doctor X in several matters, including an investigation by the Board of Medical Licensure and Discipline. Attorney B, not professionally affiliated with Attorney A, served as co-counsel for Doctor X in the board matter. The board engaged Doctor Y as an expert to review records relating to the allegations against Doctor X, and Attorney A had previously represented Doctor Y in malpractice actions and board proceedings. Attorney A proposed that Attorney B, rather than Attorney A, cross-examine Doctor Y, and asked whether that was permissible.

The Panel applied Rule 1.7. It found that on these facts the representation of Doctor Y was not directly adverse to the representation of Doctor X, and that the representation of Doctor X would not be materially limited by Attorney A's responsibilities to Doctor Y. The Panel concluded that Rule 1.7 did not prohibit Attorney A's continued representation of Doctor X and that Attorney B, as co-counsel, could handle the cross-examination of Doctor Y.

The Panel added a reminder tied to the earlier representation of Doctor Y: Attorney A remained obligated not to reveal or use confidential information obtained during that representation to Doctor Y's disadvantage.

Currency note

This opinion was issued in 1993 (Opinion 93-89, issued October 19, 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 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Can co-counsel cross-examine a witness that the lead attorney has separately represented?

A: On these facts, yes. The Panel concluded that Rule 1.7 did not prohibit Attorney B, as co-counsel, from cross-examining Doctor Y, because the two representations were not directly adverse and neither was materially limited.

Q: Did the attorney's prior representation of the expert witness end the matter?

A: No. The Panel reminded Attorney A that he remained obligated not to reveal or use confidential information obtained while representing Doctor Y to Doctor Y's disadvantage.

Q: What test did the Panel apply under Rule 1.7?

A: The Panel asked whether the representation of one client was directly adverse to the other (Rule 1.7(a)) and whether either representation would be materially limited by the lawyer's responsibilities to the other (Rule 1.7(b)); finding neither, it permitted the arrangement.

Background and rules framework

The opinion interprets Rhode Island Rule of Professional Conduct 1.7 (conflict of interest: general rule), the analog of Model Rule 1.7. Rule 1.7(a) barred representing a client directly adverse to another client absent reasonable belief and consent, and Rule 1.7(b) barred representation that would be materially limited by the lawyer's responsibilities to another client or third person absent reasonable belief and consent. The Panel also drew on the confidentiality duty owed to a former client whose information the lawyer had obtained.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / RI RPC 1.7(a), (b) (conflict of interest: directly adverse and material limitation)

See also

• RI EAP Opinion 2024-05: cross-examining a current-client witness is a nonconsentable conflict requiring withdrawal
• RI EAP Opinion 91-23: cannot represent co-defendants once evidence exculpates one under Rule 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%2093-89.pdf

Original opinion text

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

(FINAL)
ETHICS ADVISORY PANEL
OPINION #93-89, REQUEST #432
Issued October 19, 1993

Attorney A represents Doctor X in various matters, including an investigation by the Board of Medical Licensure and Discipline ("the board"). Attorney B, who is not professionally affiliated with Attorney A, is serving as co-counsel with Attorney A in representing Doctor X in the matter before the board. Attorney A has learned that the board has engaged Doctor Y as an expert to review records relating to the allegations against Doctor X. Attorney A has represented Doctor Y in a number of malpractice actions and in proceedings brought by the board. Attorney A proposes that Attorney B cross-examine Doctor Y in the matter before the board and inquires as to whether this arrangement is ethically permissible.

Rule 1.7 entitled "Conflict of Interest: General Rule" provides as follows:

(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.

(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. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

Under the facts of this inquiry, it does not appear to the Panel that the representation of Doctor Y is directly adverse to the representation of Doctor X, nor does it appear that the representation of Doctor X will be materially limited by Attorney A's responsibilities to Doctor Y. The Panel therefore concludes that Rule 1.7 does not prohibit the continued representation of Doctor X by Attorney A and that Attorney B, as co-counsel, is permitted to handle the cross-examination of Doctor Y. The Panel, however, reminds Attorney A of his/her obligation not to reveal or use confidential information obtained during the representation of Doctor Y to Doctor Y's disadvantage.