My firm has been hired to defend an insured, but the plaintiff's lawyer works at a firm my firm currently represents in an unrelated matter. Is that a conflict of interest?

Plain-English summary

The inquiring attorney's firm (Law firm A) was retained by an insurer to defend its insured in an accident case. The plaintiff subrogor is represented by Law firm B, which Law firm A currently represents in an unrelated matter. The particular lawyer at Law firm B handling the plaintiff's case is not involved in the unrelated matter Law firm A handles for Law firm B. The attorney asked whether representing the insured is a Rule 1.7 conflict.

The panel analyzed the question under Rule 1.7(a)(2), the material-limitation prong. It first noted that a firm is treated as one lawyer for conflicts purposes under Rule 1.10, so the fact that the specific Law firm B lawyer opposing the insured is not the lawyer involved in the unrelated matter does not remove the concern. A concurrent conflict would exist if there is a substantial risk that Law firm A's representation of the insured will be materially limited by its responsibilities to Law firm B, will materially limit those responsibilities, or will be materially limited by Law firm A's own interest in continuing to represent Law firm B in future matters.

The panel held that whether such a risk exists depends on a good-faith evaluation of factors the panel could not weigh without specific facts. Adopting the approach of Maine Professional Ethics Commission Op. 205 (2011), the panel listed non-exhaustive factors: the relative importance of the matter to the represented lawyer, the relative size of the expected fee, the relative importance of each matter to each lawyer and client, the sensitivity of each matter, the substantial similarity between the two representations, and the nature of the relationships involved.

The panel concluded that if, after applying those factors, the attorney determines a concurrent conflict exists as to either client, the firm may still represent the insured only if it reasonably believes it can provide competent and diligent representation despite the risk, obtains each affected client's informed written consent, and otherwise complies with Rule 1.7(b).

In practice

Under this opinion, and under the Rhode Island rule as it stood at the time, representing a client adverse to a law firm that your own firm concurrently represents in an unrelated matter is not a per se conflict. The panel held the analysis turns on a good-faith, fact-specific evaluation under Rule 1.7(a)(2) of whether there is a significant risk that either representation will be materially limited. Where that risk is found, the opinion holds the representation may proceed only on satisfaction of Rule 1.7(b): a reasonable belief in competent and diligent representation, plus each affected client's informed written consent.

Common questions

Q: Is it automatically a conflict to be adverse to a law firm my firm represents in another matter?

A: No. The panel said the attorney and firm must make a good-faith evaluation under Rule 1.7(a)(2) of whether the concurrent representation creates a significant risk of material limitation; there is no automatic bar.

Q: Does it matter that the specific opposing lawyer is not involved in the unrelated matter my firm handles?

A: No. The panel applied Rule 1.10, under which a firm is treated as one lawyer for conflicts purposes, so the individual lawyer's non-involvement does not change the analysis.

Q: If I decide a conflict exists, can I still take the case?

A: The panel said yes, if the firm reasonably believes it can provide competent and diligent representation despite the risk, obtains each affected client's informed written consent, and otherwise complies with Rule 1.7(b).

Background and rules framework

The opinion applies Rule 1.7 (Model Rule 1.7, conflict of interest: current clients), specifically the Rule 1.7(a)(2) material-limitation prong and the Rule 1.7(b) consent conditions, together with Rule 1.10 (Model Rule 1.10, imputation of conflicts), under which a firm's lawyers are treated as one lawyer for conflicts analysis. The panel drew its factor list from Maine Professional Ethics Commission Op. 205 (2011) but framed the factors as guidance for the required Rule 1.7(a)(2) evaluation.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest: current clients)
• MR 1.10 (imputation of conflicts of interest)
• RI RPC 1.7, 1.10

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• Maine Professional Ethics Commission Op. 205 (2011) (non-exhaustive factors for evaluating material-limitation risk in concurrent representations)

See also

• RI EAP Op. 2024-11: No Conflict Representing Clients in Unrelated Matters Before an Opposing Lawyer-Judge
• RI EAP Op. 2024-06: Need Not Withdraw Over a Nonclient Sibling's Disclosure
• RI EAP Op. 2025-04: Imputed Conflict and a Screened Associate

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%2016-01.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Rhode Island Supreme Court
Ethics Advisory Panel Op. 2016-01
Issued March 10, 2016

FACTS:

The inquiring attorney and his/her law firm (Law firm A) have been retained by an insurance company to represent its insured, which is the owner and lessor of a vehicle that was involved in an accident. The plaintiff subrogor in the case is represented by a law firm (Law firm B) that Law firm A currently represents in an unrelated matter. The inquiring attorney states that the attorney from Law firm B who represents the plaintiff subrogor is not involved in the unrelated matter. The inquiring attorney seeks the Panel's advice about whether it is a conflict of interest to represent the insured under these circumstances.

ISSUE PRESENTED:

The inquiring attorney asks whether it is a conflict of interest under Rule 1.7 of the Rules of Professional Conduct to represent the insured when his/her law firm is also currently representing opposing counsel's law firm in an unrelated matter.

OPINION:

The inquiring attorney and his/her law firm must make a good faith professional evaluation of relevant factors to decide whether under Rule 1.7(a)(2) the concurrent representation will present a significant risk that the representation of either client will be materially limited. If they conclude that such a risk exists, the inquiring attorney and his/her law firm may represent the insured if they further comply with paragraph (b) of Rule 1.7.

REASONING:

The Rule of Professional Conduct that applies to this inquiry is Rule 1.7 entitled "Conflict of interest: Current Clients." It states as follows.

Rule 1.7. Conflict of interest: Current clients. (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

A firm of lawyers is essentially one lawyer for purposes of the rules governing conflicts of interests under Rule 1.7. That the lawyer from Law firm B who represents the plaintiff subrogor is not involved in the unrelated matter is not relevant to a conflicts analysis under Rule 1.7. See Rule 1.10 "Imputation of conflicts of interests: General rule."

The facts of this inquiry must be analyzed under the second prong of Rule 1.7(a). Under Rule 1.7(a)(2), there would exist a concurrent conflict of interest where there is a substantial risk that Law firm A's representation of the insured (a) will be materially limited by its responsibilities to Law firm B, (b) will materially limit its responsibilities to Law firm B, or (c) will be materially limited by its own personal interests in, for example, continuing to represent Law firm B in future matters.

The risk must be substantial; the limitation on either representation must be material. Whether and to what extent a concurrent representation will be thus affected will depend on the inquiring attorney's good faith evaluation of various factors applied to specific facts that are unknown to the Panel.

Faced with a similar inquiry in Maine Professional Ethics Commission Op. 205 (2011), the Maine ethics commission stated:

These factors may include

1. The relative importance of the matter to the represented lawyer

2. The relative size of the fee expected by the representing lawyer

3. The relative importance to each lawyer and to each lawyer's client of the matter involving the third party clients

4. The sensitivity of each matter

5. The substantial similarity between the subject matter or issues of the two representations, and

6. The nature of the relationship of one lawyer to the other and of each lawyer to his third party client. (Citation omitted)

Id. at 2-3.

The Maine commission recognized that these factors are not exhaustive, but provide some direction to attorneys about the analysis required to comply with Rule 1.7(a)(2). Id at 3.

The Panel agrees with Maine's approach, and advises the inquiring attorney and Law firm A to consider the above factors, along with others known to them that may apply. If after doing so, the inquiring attorney concludes that a concurrent conflict of interests exists as to either client, the inquiring attorney and Law firm A may represent the insured, but only if there is a reasonable belief that they can provide competent and diligent representation notwithstanding the risk, they obtain the informed, written consent of each affected client, and they otherwise comply with Rule 1.7(b).

The Panel concludes that the inquiring attorney and his/her law firm must make a good faith professional evaluation of relevant factors to decide whether, under Rule 1.7(a)(2), the concurrent representation will present a significant risk that the representation of either client will be materially limited. If they conclude that such a risk exists, the inquiring attorney and his/her law firm may represent the insured if they further comply with paragraph (b) of Rule 1.7.