Can I keep representing my client at a deposition where the witness being deposed is another current client of mine in an unrelated matter?

Plain-English summary

The inquiring attorney represented Client #2, who was being sued for attorney's fees by a law firm. At a deposition, Client #2 testified that a third-party witness, Client #1, had been present during a discussion of a fee agreement with the law firm. The law firm's attorney sought to depose that third-party witness, who happened to be a present client of the inquiring attorney; the two matters were unrelated. The attorney asked whether he or she could continue to represent Client #2 and attend Client #1's deposition on behalf of Client #2.

The panel applied Rule 1.7(a), which bars representing a client where the representation will be directly adverse to another client unless the lawyer reasonably believes the representation will not adversely affect the relationship with the other client and each client consents after consultation.

On these circumstances, the panel advised that the inquiring attorney may continue to represent Client #2 and attend the deposition if the attorney reasonably believes the representation will not adversely affect the relationship with either client and each client consents to the representation after consultation.

Currency note

This opinion was issued in 1995, 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 restructured the conflict-of-interest rule around informed consent. 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 Treat this page as historical context, not current guidance.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: Was this an outright prohibited conflict?

A: No. The opinion treated it as a consentable conflict under Rule 1.7(a), permitting the representation if the reasonable-belief and dual-consent conditions were met.

Q: What did the lawyer have to do before proceeding?

A: The opinion required the lawyer to reasonably believe the representation would not adversely affect the relationship with either client and to obtain each client's consent after consultation.

Q: Did it matter that the two matters were unrelated?

A: The opinion noted the matters were unrelated, but still ran the conduct through the Rule 1.7(a) consent analysis rather than treating the lack of relation as ending the inquiry.

Background and rules framework

The opinion applied Rhode Island Rule of Professional Conduct 1.7(a) (Model Rule 1.7) as it stood at the time, the general conflict-of-interest rule governing representation directly adverse to another client. Under that provision, such representation was permitted only where the lawyer reasonably believed it would not adversely affect the relationship with the other client and each affected client consented after consultation.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / RI RPC 1.7(a) (conflict of interest; direct adversity to another client; consent after consultation)

See also

• RI EAP Op. 2017-04: Conflict representing a client suing a city while serving as city-council counsel is waivable
• RI EAP Op. 2019-02: No conflict representing a buyer against a former corporate client in an unrelated matter

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%2095-11.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 # 95-11, REQUEST # 569
Issued March 6, 1995

The inquiring attorney represents Client #2 who is being sued for attorney's fees by a law firm. At a deposition, Client #2 testified that a third party witness, Client #1 was present during a discussion of a fee agreement with the law firm. The law firm's attorney seeks to depose this third-party witness relative to this cause of action which happens to be a present client of the inquiring attorney. The matters are not related.

The inquiring attorney seeks advice as to whether he/she may continue to represent Client #2 and attend the deposition of Client #1 on behalf of Client #2.

Rule 1.7 entitled "Conflict of Interest: General Rule" states the following:

(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.

Based upon the following circumstances, the inquiring attorney may continue to represent Client #2 and attend the deposition if the inquiring attorney reasonably believes the representation will not adversely affect the relationship with either client and each client consents to the representation after consultation.