I represent A on a personal injury claim and A's spouse B on a loss-of-consortium claim, but A and B are now divorcing and B may claim part of A's lost-wages recovery. Can I keep representing both, even with a signed conflict waiver?

Plain-English summary

The inquiring attorney represented A on a personal injury claim. A's spouse, B, and A's child, C, had loss-of-consortium claims related to A's injury. After A consulted the attorney, A and B filed for divorce; the attorney represented neither of them in the divorce. A told the attorney that B's divorce lawyer had indicated B might seek a portion of A's lost-wages damages as part of the divorce settlement, and that A's own divorce lawyer might advise A not to pursue lost-wages damages because the injury was serious enough to warrant policy limits without that claim. The attorney disclosed the potential conflict over the division of settlement funds, included a provision to that effect in a written fee agreement, and A and B signed the agreement purporting to waive the conflict and asked the attorney to represent both in the personal injury matter.

The panel concluded that the attorney could not represent both A on the personal injury claim and B on the loss-of-consortium claim. Under Rhode Island's equitable-distribution statute, B might be entitled to a portion of A's lost-wages damages, giving B an interest in A's personal injury recovery adverse to A's, so Rule 1.7(a) precluded representing both in a dispute over the division of funds. Beyond that, the panel found the dual representation as a whole conflicted: the decision to pursue or forgo a lost-wages claim could benefit one client while harming the other, so the representation of A would be materially limited by responsibilities to B. Because it was not reasonable to believe the representation of one would not adversely affect the other, Rule 1.7(b) precluded the attorney from representing B.

Currency note

This opinion was issued in November 1997, 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. 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 Treat this page as historical context, not current guidance.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: Why did the pending divorce create a conflict between the injured client and the spouse?

A: The opinion explained that under the equitable-distribution statute the divorcing spouse might be entitled to part of the client's lost-wages damages, giving the spouse an interest in the client's recovery that was directly adverse under Rule 1.7(a).

Q: Did the signed conflict waiver let the lawyer represent both?

A: No. The opinion concluded it was not reasonable to believe that representing one would not adversely affect the other, so the conflict was not consentable and Rule 1.7(b) precluded the dual representation despite the signed fee agreement.

Q: Was the conflict only about splitting the money?

A: No. The opinion found that, apart from the adverse claims to the recovery, the choice whether to pursue a lost-wages claim could benefit one client at the other's expense, materially limiting the representation of A by the lawyer's responsibilities to B.

Background and rules framework

The opinion applied Rhode Island Rule of Professional Conduct 1.7 (Model Rule 1.7) as originally adopted. Rule 1.7(a) barred representing a client if the representation would be directly adverse to another client absent a reasonable belief of no adverse effect and each client's consent after consultation. Rule 1.7(b) barred representation that may be materially limited by the lawyer's responsibilities to another client absent a reasonable belief of no adverse effect and consent after consultation. The panel tied the adverse interest to Rhode Island's equitable-distribution statute, G.L. § 15-5-16.1, and found the reasonable-belief condition unmet, so consent could not cure the conflict.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / RI RPC 1.7(a), 1.7(b) (conflict of interest: general rule)

Statutes:

• R.I. Gen. Laws § 15-5-16.1 (equitable distribution of marital property)

See also

• RI EAP Op. 98-01: A firm cannot drop the driver to take the insured
• RI EAP Op. 99-05: Concurrent representation of victims of the same perpetrator, no conflict
• RI EAP Op. 99-07: Child-support agency conflicts of interest

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%2097-21.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. 97-21, Request No. 729
                              Issued November 13, 1997

Facts:

    The inquiring attorney represents A in connection with a personal injury claim. B and C,

who are A's spouse and child, respectively, have loss of consortium claims related to A's per-
sonal injury. After consulting the inquiring attorney about the personal injury matter, A and B
filed for divorce. The inquiring attorney represents neither A nor B in the divorce action. A has
informed the inquiring attorney that B's divorce lawyer has indicated that as part of the divorce
settlement, B may seek a portion of A's damages for lost wages. A has also informed the inquir-
ing attorney that A's divorce lawyer may advise A not to seek damages for lost wages because
A's injury is serious enough to warrant payment of the policy limits even without a lost wages
claim. The inquiring attorney has informed A and B that the divorce raises the possibility of a
conflict over the division of settlement funds, and has included a provision to that effect in a
written fee agreement. Nevertheless, A and B want the inquiring attorney to represent both of
them in the personal injury matter, and have signed the fee agreement, waiving the conflict.

Issue Presented:

   The inquiring attorney asks whether he/she may represent both A and B in the personal

injury matter.
Opinion:

    The inquiring attorney may not represent A in his/her personal injury claim and B in

his/her loss of consortium claim.

Reasoning:

     Rule 1.7 entitled "Conflict of Interest: General Rule" states:
      (a) A lawyer shall not represent a client if the representation of that cli-
      ent 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.

Final 97-21
Page 2

     (b) A lawyer shall not represent a client if the representation of that
     client may be materially limited by the lawyer's responsibilities to an-
     other 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 represen-
           tation of multiple clients in a single matter is undertaken,
           the consultation shall include explanation of the implica-
           tions of the common representation and the advantages and
           risks involved.

     As part of the distribution of assets in the divorce proceeding, B may be entitled to a

portion of A's damages for lost wages pursuant to the equitable distribution statute. See
G.L. § 15-5-16.1. B therefore has an interest in A's personal injury recovery which is adverse to
A's interest. As the inquiring attorney has correctly disclosed to A and B, Rule 1.7(a) would pre-
clude him/her from representing both claimants in a dispute over the division of funds.

      Quite apart from the conflict of interest that arises from the adverse claims to the even-

tual recovery, a conflict arises in the dual representation as a whole. The inquiring attorney must
consider that the decision to pursue or to forestall pursuing a claim for lost wages as part of A's
personal injury matter may adversely affect one client while at the same time work to benefit the
other. The Panel is of the opinion that the inquiring attorney's representation of A would be ma-
terially limited by his/her responsibilities to B. In the face of such a direct conflict it is not rea-
sonable to believe that the representation of A will not adversely affect the representation of B
and vice versa. The Panel therefore concludes that pursuant to Rule 1.7(b), the inquiring attor-
ney is precluded from representing B in the loss of consortium claim.