For years, a colleague at my firm defended B for B's insurer while I pursued A's indemnity claim against B. B's case has settled and I've now sued B for A. B says I have a conflict. Can I continue?

Plain-English summary

The inquiring attorney represented A in a lawsuit in which A and B were co-defendants and A had a claim against B under the insurance and indemnity clauses of an agreement between them. Before A's lawsuit was filed, the attorney had demanded that B's insurer defend and indemnify A under the agreement. At about the same time, and unknown to the inquiring attorney, another attorney in the same firm, Attorney C, was retained by B's insurer to defend B in a separate matter. Both lawsuits were pending for about two and a half years, during which the inquiring attorney again notified B's insurer and B's counsel of A's indemnity claim. Attorney C learned of the inquiring attorney's representation of A and A's claim against B shortly before B's lawsuit settled. Several months after that settlement, the inquiring attorney sued B on A's behalf for money damages under the agreement, and B asserted a conflict of interest.

The panel concluded that the inquiring attorney was precluded under Rule 1.7(b) from continuing to represent A and advised withdrawal. For roughly two and a half years, the inquiring attorney and Attorney C in the same firm had each represented clients whose interests, A's and B's, were adverse; even after discovering the fact, they did not disclose it or seek the clients' consent to waive disqualification under Rules 1.10(d) and 1.7. Because B was now challenging the representation, it appeared unlikely B would have consented, and the panel held that the settlement of B's lawsuit did not place the problem within the former-client rubric. The firm's representation of A would be materially limited by its continuing duties of confidentiality and loyalty to B: cross-examining B and conducting third-party discovery on A's indemnity claim would pit the duty of loyalty to one client against the other and risk breaching B's confidences, so under Rule 1.7(b) the attorney should withdraw.

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 1.7, 1.10, and 1.9 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. 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: If one lawyer in a firm represents A and another represents B, are they in conflict?

A: The opinion applied Rule 1.10 to treat the firm as one: because members of the firm concurrently represented A and B, whose interests were adverse, the firm faced a concurrent conflict.

Q: Does settling the second client's case fix the conflict?

A: No. The opinion concluded that the settlement of B's lawsuit did not convert the concurrent-representation problem into a mere former-client conflict, citing Alabama Opinion 92-21.

Q: Why must the lawyer withdraw from A?

A: The opinion held that the firm's continuing duties of confidentiality and loyalty to B materially limited its representation of A under Rule 1.7(b), because cross-examining B and conducting discovery on A's claim would pit one client's interests against the other's.

Background and rules framework

The opinion applied Rhode Island Rules of Professional Conduct 1.7(b), 1.10, and 1.6. Rule 1.10(a) imputes one lawyer's disqualification under Rules 1.7, 1.8(c), 1.9, or 2.2 to the whole firm, and Rule 1.10(d) allows a waiver under Rule 1.7's conditions. Rule 1.7(b) bars representation materially limited by the lawyer's responsibilities to another client absent a reasonable belief of no adverse effect and consent. The panel drew on Alabama Opinion 92-21 and ABA Formal Opinion 92-362 for the conclusions that withdrawal does not create a former-client posture and that examining one's own client is a material limitation.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / RI RPC 1.7(b) (representation materially limited by duties to another client)
• Model Rule 1.10 / RI RPC 1.10(a), 1.10(d) (imputed disqualification; waiver)
• Model Rule 1.6 / RI RPC 1.6 (confidentiality), continuing duty to B

Other opinions cited:

• Alabama State Bar Disciplinary Commission Op. 92-21 (1992): a firm may not represent one client against another, and withdrawal does not create a former-client conflict
• ABA Comm. on Ethics and Professional Responsibility, Formal Op. 92-362 (1992): examining one's own client is a material limitation on the representation

See also

• RI EAP Op. 98-01: A firm cannot drop the driver to take the insured
• RI EAP Op. 97-06: Former solicitor and of-counsel city conflicts

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%2097-03.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. 97-03, REQUEST NO. 704
                            Issued February 13, 1997

FACTS

The inquiring attorney represents A in a lawsuit (A's lawsuit) in which A and B are co-

defendants. A has a claim against B under the insurance and indemnity clauses of an agreement
entered into by A and B (the Agreement). B is represented by an attorney from a different law
firm. Before A's lawsuit was filed, the inquiring attorney had made demands upon B's insurer to
defend and indemnify A pursuant to the Agreement. At about the same time, but unbeknownst
to the inquiring attorney, another attorney in the same law firm, Attorney C, was retained by B's
insurer to defend B in a separate matter (B's lawsuit).

Both lawsuits were pending for about two and one-half years, during which time the inquir-

ing attorney again notified B's insurer and also notified the attorney representing B in A's lawsuit
of A's indemnity claim against B. Attorney C learned about the inquiring attorney's representa-
tion of A and A's claim against B shortly before B's lawsuit was settled. Several months after the
settlement of B's lawsuit, the inquiring attorney, on A's behalf, commenced an action against B
seeking money damages under the Agreement. B then notified the inquiring attorney that he/she
has a conflict of interest in the representation of A.

ISSUES PRESENTED

The inquiring attorney asks whether he/she may continue to represent A against Attorney C's
former client B under Rule 1.9(a) of the Rhode Island Supreme Court Rules of Professional
Conduct.

OPINION

The inquiring attorney is precluded under Rule 1.7(b) from continuing to represent A in the
pending lawsuit. The Panel advises the inquiring attorney to withdraw from the representation of
A in the lawsuit.

REASONING

This inquiry demonstrates the importance of diligent conflicts screening which law firms
must conduct before undertaking and during the representation of clients. Resolving questions of
Final
Op. 97-03
Page 2

conflicts of interest is primarily the responsibility of the lawyer or law firm undertaking repre-
sentation. See Comment to Rule 1.7.

Pertinent to this inquiry is Rule 1.10 entitled "Imputed Disqualification: General Rule" which
provides:

           (a) While lawyers are associated in a firm, none of them
           shall knowingly represent a client when any one of them
           practicing alone would be prohibited from doing so by
           Rules 1.7, 1.8(c), 1.9, or 2.2.
                                         ***
           (d) A disqualification prescribed by this rule may be
           waived by the affected client under the conditions stated in
           Rule 1.7.

For approximately two and one-half years, the inquiring attorney and Attorney C in the same

law firm were each representing clients, namely A and B, whose interests were adverse. Even
after discovering this fact, the attorneys did not disclose the conflict to the clients, or seek to ob-
tain the clients' consent to waive disqualification under Rules 1.10(d) and 1.7. Since B now chal-
lenges the inquiring attorney's representation of A in the pending lawsuit, it appears unlikely that
B would have consented and waived a conflict under Rule 1.7(a) during the period of simultane-
ous representation. The Panel is of the opinion that under these facts, the eventual settlement of
B's lawsuit does not place the conflicts problem presented in this inquiry within the rubric of
conflicts with a former client. See Alabama State Bar Disciplinary Commission Op. 92-21
(1992) (law firm may not represent one client against another even if subject matter of suits are
unrelated, and withdrawal from representation of one client will not make situation a conflict
with former client.)

Applicable to this inquiry is Rule 1.7(b). Rule 1.7(b) states:

           (b) A lawyer shall not represent a client if the representation of
           that client may be materially limited by the lawyer's responsibili-
           ties to another client or to a third person, or by the lawyer's own in-
           terests, unless:

                   (1) the lawyer reasonably believes the representation
                   will not be adversely affected; and

Final
Op. 97-03
Page 3

                   (2) the client consents after consultation. When repre-
                   sentation of multiple clients in a single matter is under-
                   taken, the consultation shall include explanation of the
                   implications of the common representation and the ad-
                   vantages and risks involved.

 The Panel is of the opinion that the law firm's representation of A would be materially lim-

ited by the firm's responsibilities to B. The law firm has continuing duties of confidentiality and
of loyalty to B. See Rule 1.6 and Rule 1.7. Cross-examining B on behalf of A and conducting
third party discovery on A's indemnity claim against B are likely to pit the duty of loyalty to one
client against the duty of loyalty to the other, and pose the risk of breaching the duty of confiden-
tiality to B. See ABA Committee on Ethics and Professional Responsibility Formal Op. 92-362
(1992). (In general, examining one's own client and conducting discovery on behalf of another
client are material limitations on lawyer's representations.) A deferential cross-examination of B
would compromise the representation of A, and an aggressive one could jeopardize B's confi-
dences. As these hazards would constitute material limitations on the inquiring attorney's repre-
sentation of A under Rule 1.7(b), the Panel advises the inquiring attorney to withdraw from the
representation of A in the pending lawsuit.