I'm suing Jones Company for my client. A colleague at my firm, unaware of my case, represented a bank lending to Jones and got Jones's financials. Do I have to withdraw?

Plain-English summary

Attorney A, the inquiring attorney, and Attorney B were in the same firm. Attorney A represented Smith in a suit against Jones Company. While that suit was pending, Jones Company applied for a loan, and the financial institution retained Attorney B to represent it in the loan transaction, giving Attorney B documents with financial information about Jones Company. Attorney B was unaware of the pending lawsuit, and Attorney A was unaware of Attorney B's involvement in the financing, until shortly before the closing, where Jones Company was represented by the firm defending it in the lawsuit. Attorney A asked whether a conflict required withdrawal from representing Smith, and whether he could withdraw even absent a conflict to avoid the appearance of impropriety.

The panel concluded there was no conflict requiring withdrawal. Under Rule 1.10(a), Attorney A would be disqualified only if Attorney B were disqualified under Rules 1.7, 1.8(c), 1.9, or 2.2. Attorney B did not represent Jones Company, which had its own counsel, and the facts did not show that representing Smith would be materially limited by Attorney B's responsibilities to the financial institution under Rule 1.7(b). Because Attorney B would have no conflict in representing Smith, neither would Attorney A. The panel added, however, that although there was no conflict, a serious appearance of impropriety existed, particularly if Jones Company's financial position was material to the lawsuit, and it advised Attorney A to give serious consideration to withdrawing, which he could do at his option under Rule 1.17(b) if it caused no material adverse effect on Smith. It noted that Attorney B, having obtained Jones Company's financial information from the lender client, had a Rule 1.6 duty of confidentiality and could not disclose that information to Attorney A.

Currency note

This opinion was issued in February 1997, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.10, 1.7, and 1.6 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 also removed the "appearance of impropriety" concept from most rules. 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: Does a firm colleague's work for the opposing party's lender disqualify the litigator?

A: The opinion concluded it did not, because the colleague represented the lender rather than the opposing company, and there was nothing disqualifying to impute under Rule 1.10(a).

Q: Was the litigator required to withdraw at all?

A: No. The opinion found no conflict requiring withdrawal, though it advised serious consideration of withdrawal because of the appearance of impropriety, especially if the company's financials were material.

Q: Can the colleague share the company's financial information?

A: No. The opinion held that Attorney B, having received Jones Company's financial information from the lender client, had a Rule 1.6 duty of confidentiality and could not disclose it to Attorney A.

Background and rules framework

The opinion applied Rhode Island Rules of Professional Conduct 1.10(a), 1.7(b), 1.6, and 1.17(b). Rule 1.10(a) imputes a lawyer's disqualification under Rules 1.7, 1.8(c), 1.9, or 2.2 to the firm. Rule 1.7(b) bars representation materially limited by the lawyer's responsibilities to a third person absent a reasonable belief of no adverse effect and consent. The panel found neither trigger, so no imputation arose, then addressed the appearance of impropriety separately and noted the optional-withdrawal path under Rule 1.17(b) and the confidentiality duty under Rule 1.6.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.10 / RI RPC 1.10(a) (imputed disqualification)
• Model Rule 1.7 / RI RPC 1.7(b) (representation materially limited by duties to a third person)
• Model Rule 1.6 / RI RPC 1.6 (confidentiality of information)
• RI RPC 1.17(b) (withdrawal at the lawyer's option, as numbered at the time)

See also

• RI EAP Op. 97-03: A firm on both sides must withdraw
• RI EAP Op. 97-13: When a spouse works at the opposing firm

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%2097-02.pdf

Original opinion text

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

Final

RHODE ISLAND SUPREME COURT
ETHICS ADVISORY PANEL
OPINION NO. 97-02, REQUEST NO. 699
Issued February 13, 1997

FACTS:

Attorney A, who is the inquiring attorney, and Attorney B are members of the same law firm. Attorney A represents Smith in a suit against Jones Company during the pendency of which Jones Company applied for a loan from a financial institution. The financial institution re- tained Attorney B to represent it in the loan transaction, and gave to Attorney B documents con- taining financial information about Jones Company. Attorney B was not aware of the pending lawsuit, and Attorney A was not aware of Attorney B's involvement in the Jones Company fi- nancing, until shortly before the closing. At the closing Jones Company was represented by the law firm that defends it in the pending lawsuit.

ISSUES PRESENTED:

The inquiring attorney asks (a) whether there is a conflict of interest which requires him/her to withdraw from continued representation of Smith; and (b) whether he/she may with- draw even if there is no conflict of interest to avoid the appearance of impropriety and potential conflict among the parties.

OPINION:

There is no conflict of interest requiring Attorney A to withdraw from representing Smith in the lawsuit. Under Rule 1.17(b) of the Rhode Island Supreme Court Rules of Profes- sional Conduct, Attorney A may withdraw at his/her option if withdrawal can be accomplished without adverse effect on the interests of Smith.

However, although there is no conflict of interest, there exists a serious appearance of impropriety, particularly if the financial position of Jones Company is material to the lawsuit. The Panel advises Attorney A to give serious consideration to withdrawing from the representa- tion of Smith.

REASONING:

Under Rule 1.10(a) of the Rhode Island Supreme Court Rules of Professional Conduct entitled "Imputed Disqualification: General Rule," Attorney A would be prohibited from con- tinuing to represent Smith if Attorney B were so prohibited by the rules pertaining to Final Op. 97-02 Page 2

conflicts of interest namely, Rule 1.7, Rule 1.8(c), Rule 1.9, or Rule 2.2. See Rule 1.10(a). At- torney B did not represent Jones Company, which was represented at the closing and in the law- suit by its own counsel. In addition, it does not appear from the facts provided that the represen- tation of Smith was or would be materially limited by Attorney B's responsibilities to a third party, i.e., the financial institution. See Rule 1.7(b). Therefore, it does not appear that Attorney B would have a conflict of interest were he/she to undertake the representation of Smith. Be- cause there would be no such conflict of interest for Attorney B, there would likewise be none for Attorney A. Accordingly, Attorney A is not required to withdraw from representing Smith.

Attorney A may choose to withdraw from representing Smith under Rule 1.17(b) if the "withdrawal can be accomplished without material adverse effect on the interests of the client."

Attorney B obtained the financial information on Jones Company from his/her client, the financial institution, as part of his/her legal services for the loan transaction. Under Rule 1.6, At- torney B has an obligation to maintain the confidentiality of all information which relates to the representation of a client and may not disclose information about Jones Company to Attorney A.