I represent one family in a tort suit against an abuser and another family in a criminal-injuries-compensation claim over the same abuser. Do I have a conflict of interest representing both?

Plain-English summary

A and B were dating, and each had a minor child who had been sexually assaulted by B's father. A and A's child retained the inquiring attorney for a tort action against the perpetrator; they obtained a judgment, successfully prosecuted a fraudulent-conveyance claim over the perpetrator's only asset (a parcel of real estate he had conveyed to his spouse), and secured a pre-judgment attachment. Separately, B and B's child had a pending criminal-injuries-compensation action against the State of Rhode Island for the assaults on B's child, B later retained the inquiring attorney for a Family Court petition for physical possession of her child; the attorney then represented B and her child in the compensation action. At a pre-trial conference, the master raised concerns about whether B should continue as a plaintiff given her relationship with A. The attorney asked whether he had a conflict of interest.

The panel addressed distinct possible conflicts under Rule 1.7. On representing both B and B's child in the compensation case, the panel found no facts showing that B and her child had adverse interests or that the attorney's responsibilities to one would materially limit the representation of the other, so the joint representation was permissible. Whether it was in the child's best interests for B to continue as parent and next friend was, the panel noted, a matter of substantive law outside legal ethics.

On the relationship between the two matters, the panel concluded the interests of A and A's child were not directly adverse to those of B and B's child; both were seeking compensation for injuries caused by the same perpetrator. If compensation were awarded to B or B's child under the Act, the State would have the right to recover all or part of those funds from the perpetrator. The panel lacked facts to determine whether the judgment and attachment adversely affected B's child or materially limited that representation. It explained that the State, rather than B or her child, had an interest in recovery from the perpetrator, and an award under the Act did not depend on the State's recovery. On the facts presented, it concluded that Rule 1.7 did not preclude representing both sets of clients. The panel added that its advice was for the attorney's benefit in avoiding discipline and was not binding on a tribunal, which retained authority to decide the propriety of the representation.

Currency note

This opinion was issued in March 1999, 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: Can one lawyer represent two families who were both harmed by the same abuser?

A: Yes, on the facts presented. The panel found no direct adversity and no conflict from the State's limited recovery, and concluded Rule 1.7 did not preclude representing both sets of clients.

Q: Did the attachment on the abuser's only asset create a conflict between the two families?

A: The panel lacked facts to determine whether the judgment and attachment adversely affected B's child or materially limited that representation. It found no direct adversity between the families and concluded that Rule 1.7 did not preclude the dual representation on the facts presented.

Q: Could the lawyer represent both a parent and that parent's child in the compensation claim?

A: Yes. The opinion found no facts showing the parent and child had adverse interests or that representing one would materially limit the representation of the other, so the joint representation was permissible under Rule 1.7.

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) bars a representation directly adverse to another client absent a reasonable belief of no adverse effect on the relationship and each client's consent after consultation. 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, subject to a similar reasonable-belief-and-consent exception. The opinion referred to the Rhode Island criminal-injuries-compensation statute, G.L. sec. 12-25-1 et seq., and to G.L. sec. 12-25-26 (the State's right to recover from the perpetrator), and cited O'Rourke v. Power on a tribunal's independent authority over disqualification.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / RI RPC 1.7(a), 1.7(b) (conflict of interest: directly adverse and material-limitation)

Statutes:

• R.I. Gen. Laws sec. 12-25-1 et seq. (criminal injuries compensation Act)
• R.I. Gen. Laws sec. 12-25-26 (State's right of recovery against the perpetrator)

Cases:

• O'Rourke v. Power, 690 A.2d 342 (R.I. 1997), a tribunal's unfettered authority to decide the propriety of a representation

See also

• RI EAP Op. 99-07: Child-support agency conflicts and imputation
• RI EAP Op. 99-08: Dual law and investment-advisory practice

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%2099-05.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. 99-05, Request No. 757
March 10, 1999

Facts:

A and B, who are dating each other, each has a minor child that was sexually assaulted by B's father (the perpetrator). A and his child retained the inquiring attorney to represent them in a tort action against the perpetrator. The plaintiffs obtained a judgment against the perpetrator, whose only asset was a parcel of real estate which he owned jointly with his spouse, and which just prior to the commencement of the civil case he conveyed to his spouse. The spouse in turn listed the property for sale and has entered into a purchase and sale agreement with a buyer. On behalf of the plaintiffs, the inquiring attorney successfully prosecuted a claim for fraudulent conveyance and obtained a pre-judgment attachment on the property. At the present time, A, A's child, the perpetrator, his spouse, and the buyer are negotiating a settlement. The judgment in favor of A and A's child exceeds the perpetrator's and his spouse's equity in the real estate.

About a year before A's tort case was filed, B and B's child retained an attorney and instituted a criminal injuries compensation action seeking compensation from the State of Rhode Island pursuant to G.L.sec. 12-25-1 et seq. (the Act) for the sexual assaults upon B's child by the perpetrator. About a year and a half later, and while A's tort case against the perpetrator was pending, B retained the inquiring attorney to represent her in a Family Court petition for physical possession of the child. The court granted B and B's former spouse joint custody of the child and awarded physical possession to B. The inquiring attorney now represents B and B's child in the pending criminal injuries compensation action.

At a pre-trial conference of the criminal injuries compensation matter, the master raised concerns about whether it is in the best interests of the child for B to continue as a plaintiff because of B's relationship with A, and further because B did not bring a tort action on behalf of her child against her father. The inquiring attorney now questions whether he/she has a conflict of interest.

Issue Presented:

The inquiring attorney asks the following: (a) Does the inquiring attorney have a conflict of interest if he/she represents both B and B's child in the criminal injuries compensation matter? (b) Does either the relationship between A and B, or the state's right under the Act to Final Op. 99-05 Page 2

proceed against B's father whose only asset will be exhausted by the judgment in favor of A and A's child create a conflict of interest for the inquiring attorney in the representation of B and B's child in the criminal injuries compensation case and the representation of A and A's child in the tort case against B's father?

Opinion:

(a) The representation of both B and B's child in the criminal injuries compensation case is permissible under the Rules of Professional Conduct. (b) The inquiring attorney may represent A and A's child in the tort case, and B and B's child in the criminal injuries compensation action.

Reasoning:

Rule 1.7 regarding conflict of interest provides:

Rule 1.7. Conflict of Interest: General Rule. - (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.

(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 Final Op. 99-05
Page 3

of the implications of the common representation and the advantages and risks involved.

There are no facts that lead the Panel to conclude that B and B's child have interests that are adverse, or that the inquiring attorney's responsibilities to one would materially limit the representation of the other. The representation of both is therefore permissible under Rule 1.7. Whether it is in the best interests of B's child for B to continue to serve as parent and next friend of the child in the criminal injuries case is a matter of substantive law outside the area of legal ethics.

In the Panel's view, the relationship between A and B does not create a conflict of interest for the inquiring attorney. The critical questions are whether the interests of A and A's child are directly adverse to the interests of B and B's child (Rule 1.7(a)), and whether the representation of B and B's child are materially limited by the inquiring attorney's responsibilities to A and A's child (Rule 1.7(b)). Based on the facts, the Panel is of the opinion that the interests of A and A's child are not directly adverse to those of B and B's child. Both sets of clients are seeking compensation for injuries caused by the same perpetrator, B's father. The Panel lacks sufficient facts to determine whether A's and A's child's judgment against the perpetrator and their subsequent attachment of his only asset are adverse to the interests of B's child or are material limitations to the representation of B's child. It does not otherwise appear that A or A's child, and B and B's child have claims against each other or adverse interests.

If compensation is awarded to B or B's child pursuant to the Act, the state has the right to proceed against the perpetrator for recovery of all or part of the funds. See G.L. sec.12-25-26. The perpetrator's only asset is the real estate on which there exists an attachment for the benefit of A and A's child. The state, and not B or B's child, would have an interest in the perpetrator's assets. Moreover, an award of compensation to B under the Act is not contingent upon the state's success in recovering from the perpetrator. The fact that the state's right of recovery against the perpetrator is substantially limited by A's and A's child's judgment and attachment does not create a conflict of interest in the inquiring attorney's representation of B and B's child.

Based on the facts as presented the Panel concludes that Rule 1.7 does not preclude the inquiring attorney from representing B and B's child in the criminal injuries compensation case

and A and A's child in the tort case against B's father. The Panel's advice is provided for the benefit of the inquiring attorney for the purpose of avoiding disciplinary action. It is not binding on a tribunal which has unfettered authority to render an independent decision on the propriety of the inquiring attorney's representation of B and B's child. See O'Rourke v. Power, 690 A.2d 342 (R.I. 1997).