I'm a part-time deputy probate judge for a town and I also have a private law practice. Can I represent clients before that same town's zoning board?

Plain-English summary

The inquiring attorney had recently been appointed a deputy probate judge for a municipality, serving on a part-time basis when the probate judge was unavailable, while maintaining a law practice. He asked whether representing clients in matters before the municipality's zoning board created a conflict of interest.

The panel concluded he could, subject to Rule 1.7(b). The attorney had to determine whether he could be an effective advocate for clients against the zoning board of the municipality for which he served as a probate judge. He could appear before the board on a client's behalf so long as he reasonably believed his responsibilities to the municipality would not adversely affect the representation and the clients consented after full disclosure. The panel cited its own Opinion 95-7 and a Kansas ethics opinion.

The panel added that once the attorney assumed his duties as a probate judge, he also had to consider Rule 1.12(a), which bars a lawyer from representing anyone in connection with a matter in which the lawyer participated personally and substantially as a judge unless all parties consent after consultation. In a footnote, the panel noted that under the Code of Judicial Conduct a part-time judge may not act as a lawyer in a proceeding in which the judge has served as a judge, or in any related proceeding. The panel expressly limited its guidance to the Rules of Professional Conduct and not the Code of Judicial Conduct or the State Ethics Code.

Currency note

This opinion was issued in February 1999, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.7 and 1.12 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 Treat this page as historical context, not current guidance.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: Can a part-time municipal judge represent private clients against that same municipality's boards?

A: On these facts, yes, under Rule 1.7(b). The opinion allowed the part-time deputy probate judge to appear before the town's zoning board if he reasonably believed his responsibilities to the municipality would not adversely affect the representation and the clients consented after full disclosure.

Q: What must the lawyer decide before taking such a matter?

A: The opinion directed him to determine whether he could be an effective advocate for clients against the zoning board of the municipality for which he serves as probate judge, which is the Rule 1.7(b) material-limitation question.

Q: Does serving as a judge restrict his private practice in other ways?

A: Yes. The opinion pointed to Rule 1.12(a), which bars representing anyone in a matter the lawyer handled personally and substantially as a judge absent all parties' consent, and noted the Code of Judicial Conduct's separate limits on part-time judges.

Background and rules framework

The opinion applied Rhode Island Rules of Professional Conduct 1.7 (Model Rule 1.7) and 1.12 (Model Rule 1.12) as originally adopted. Rule 1.7(b) bars a representation that may be materially limited by the lawyer's responsibilities to another client or third person, or by the lawyer's own interests, absent a reasonable belief of no adverse effect and client consent after consultation. Rule 1.12(a) bars a lawyer from representing anyone in a matter in which the lawyer participated personally and substantially as a judge, arbitrator, or law clerk, unless all parties to the proceeding consent after consultation. The opinion also referenced the Code of Judicial Conduct's separate restrictions on part-time judges but declined to opine on them.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / RI RPC 1.7(b) (material-limitation conflict)
• Model Rule 1.12 / RI RPC 1.12(a) (former judge, arbitrator, or law clerk)

Other opinions cited:

• RI EAP Op. 95-7 (1995) (public-official lawyer appearing before a municipal body): cited on the Rule 1.7(b) analysis
• Kansas Bar Assn. Ethics Advisory Comm. Op. 92-17 (1992): cited on the same point

See also

• RI EAP Op. 99-13: Agency lawyer adverse to a city
• RI EAP Op. 99-07: Child-support agency conflicts and imputation

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%2099-03.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. 99-03, Request No. 775
                                Issued February 11, 1999

Facts:

    The inquiring attorney was recently appointed a deputy probate judge for a municipality. As

such, he/she serves as probate judge on a part-time basis and when the probate judge is unavailable
or unable to perform his or her duties. The attorney has a law practice.

Issue Presented:

    The inquiring attorney asks whether he/she has a conflict of interest under the Rules of

Professional Conduct in representing clients in matters before the municipality's zoning board.

Opinion:

    The inquiring attorney may represent clients before the municipality's zoning provided that

pursuant to Rule 1.7(b) he/she reasonably believes that the representation will not be adversely
affected, and the clients consent after consultation.

Reasoning:

     Rule 1.7(b) states 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.

Final Op. 99-03
Page 2

     The inquiring attorney must determine whether he/she can be an effective advocate for clients

against the zoning board of the municipality for which he/she is a probate judge. The attorney may
appear before the zoning board on behalf of clients so long as he/she reasonably believes that his/her
responsibilities to the municipality will not adversely affect the representation, and the clients consent
after full disclosure. See R.I. Sup. Ct. Ethics Advisory Panel Op. 95-7 (1995); Kansas Bar Assoc.
Ethics Advisory Comm. Op. 92-17 (1992).

    Once the inquiring attorney assumes his/her duties as a probate judge, he/she must also

consider Rule 1.12(a) which provides that " ... a lawyer shall not represent anyone in connection with
a matter in which the lawyer participated personally and substantially as a judge ... unless all parties to
the proceeding consent after consultation." 1

     The Panel's guidance is restricted to interpretations of the Rules of Professional Conduct and

does not extend to issues under the Code of Judicial Conduct, the State Ethics Code, or any other
rules, regulations or laws that may have bearing on the issues raised by this inquiry.
1
Under the Code of Judicial Conduct, a part-time judge " ... shall not act as a lawyer in a
proceeding in which the judge has served as a judge or in any other proceeding related thereto."
Code of Judicial Conduct, Applications, paragraphs (C)(2) and (D)(2).