I represent a wife seeking custody in a divorce, and her child says the wife's boyfriend assaulted the child. May I also represent the boyfriend in the sexual assault matter?

Plain-English summary

The inquiring attorney represented a wife in a divorce case in which she sought custody of the children. One of the wife's children alleged that the wife's boyfriend had sexually assaulted the child. The attorney asked whether he could also represent the boyfriend in the sexual assault matter.

The Panel applied Rule 1.7(b), which barred a lawyer from representing a client if the representation might be materially limited by the lawyer's responsibilities to another client or third person, absent the lawyer's reasonable belief that the representation would not be adversely affected and the client's consent after consultation.

On the facts described, the Panel was unable to determine whether representing the boyfriend would violate the rule. It speculated that the representation of the boyfriend could materially limit the attorney's responsibilities to the wife in the divorce and custody matter. The Panel concluded that, to undertake the proposed representation, the attorney had to reasonably believe the representation would not materially limit his responsibilities to the wife and had to obtain the wife's consent after consultation.

Currency note

This opinion was issued in 1993 (Opinion 93-92, issued December 8, 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), including the requirement that a conflict waiver be confirmed in writing. 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 Treat this page as historical context, not current guidance.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 a lawyer represent both a divorce client and her boyfriend accused of assaulting her child?

A: The Panel could not decide on the facts given, but it identified the arrangement as a potential material-limitation conflict under Rule 1.7(b) that required the lawyer's reasonable belief of no material limitation and the wife's consent after consultation.

Q: Why couldn't the Panel give a yes-or-no answer?

A: The opinion states the Panel was "unable to determine" from the facts whether the representation would violate the rule; it speculated only that the boyfriend representation could materially limit the lawyer's responsibilities to the wife.

Q: What did Rule 1.7(b) require before taking the second representation?

A: The lawyer had to reasonably believe the second representation would not materially limit his responsibilities to the wife, and had to obtain the wife's consent after consultation.

Background and rules framework

The opinion interprets Rhode Island Rule of Professional Conduct 1.7(b) (conflict of interest: material limitation), the analog of Model Rule 1.7. The rule barred representation that might be materially limited by the lawyer's responsibilities to another client or third person, or by the lawyer's own interests, unless the lawyer reasonably believed the representation would not be adversely affected and the client consented after consultation. The Panel treated the wife (the existing divorce and custody client) as the responsibility that the proposed boyfriend representation might materially limit.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / RI RPC 1.7(b) (conflict of interest: material limitation; reasonable belief and consent after consultation)

See also

• RI EAP Opinion 2010-07: simultaneous representation of two divorce clients where one spouse alleges an affair
• RI EAP Opinion 93-03: representing a client and the opposing lawyer in a separate matter under Rule 1.7(b)

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%2093-92.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 #93-92 REQUEST #436
Issued December 8, 1993

The inquiring attorney represents a wife in a divorce case in which the wife seeks custody of the children. One of the wife's children alleges that the wife's boyfriend sexually assaulted him/her. The inquiring attorney asks whether he/she may also represent the boyfriend in the sexual assault matter.

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

(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 as described by the inquiring attorney, the Panel is unable to determine whether the inquiring attorney's representation of the boyfriend in the sexual assault matter would violate the above-stated Rule. However, the Panel speculates that the representation of the boyfriend could materially limit the inquiring attorney's responsibilities to the wife in the divorce/custody matter. Thus, in order to undertake the proposed representation the inquiring attorney must reasonably believe that the representation will not materially limit the inquiring attorney's responsibilities to the wife and obtain client consent after consultation.