Two of my firm's clients are now in a contract dispute with each other, and one objects to my firm continuing to represent the other. Will the ethics panel decide whether I can continue?

Plain-English summary

An attorney asked the panel whether it was permissible under the Code of Professional Responsibility for his firm to continue representing client A, where a dispute had arisen between client A and client B, another firm client. The firm had represented client A on a range of matters for many years and had represented client B in several isolated matters in recent years. Client A and client B had entered into a contractual relationship, with client B represented by outside counsel and the firm representing client A with the full knowledge and consent of all parties. A dispute over interpretation of that contract had since arisen and was pending in court. Client B objected to the firm's continued representation of client A, citing the firm's prior representation of client B and information client B claimed the firm may have obtained during that representation.

The panel stated it could not reach any conclusion as to whether relevant, privileged information had been conveyed to the firm during the earlier representation of client B. The panel commended the inquiring attorney for having sought and received the consent of both parties before undertaking the representation of client A. It nonetheless took the position that a contested fact situation of this kind must be resolved in an adversary proceeding. The panel quoted its own Rule 2 ("Jurisdiction"), which permits it to decline to render an advisory opinion where "the request contains insufficient information on which the Panel can make a judgment" or "the request is not in the form required by Rule 3," and Rule 3, which requires a representation that "the opinion of the Panel will not affect interests of parties to any pending action." On that basis, the panel held it could not respond to the inquiry in view of Panel Rules 2(e), 2(f), and 3.

Currency note

This opinion was issued in 1988, before the Rhode Island Supreme Court's adoption of the 2007 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Common questions

Q: My firm represents two clients who are now suing each other over a contract between them. Will the ethics panel tell me whether I can keep representing one of them?

A: Not once the dispute is already in litigation, according to this opinion. The panel held that Panel Rules 2(e), 2(f), and 3 bar it from opining on a contested-fact situation of this kind, and that it must instead be resolved in the adversary proceeding.

Q: Does the panel say whether privileged information from representing client B could affect the analysis?

A: The panel stated it "cannot reach any conclusions as to whether relevant, privileged information was conveyed to the firm" during the earlier representation; it did not resolve that factual question.

Q: Did the panel have any praise for how the attorney set up the original dual representation?

A: Yes. The opinion states the panel "commends the inquiring attorney for having sought and received the consent of both parties prior to his representation of client A."

Background and rules framework

The opinion applies the Ethics Advisory Panel's own procedural jurisdiction rules, Rule 2 (permitting declination where the request lacks sufficient information for a judgment or does not meet Rule 3's form requirements) and Rule 3 (requiring a representation that the requested opinion will not affect the interests of parties to a pending action), to a request that turned on contested facts in litigation already pending between two of the firm's clients.

Citations and references

Rules of Professional Conduct:

• RI EAP Rule 2(e) (declining an opinion where the request lacks sufficient information)
• RI EAP Rule 2(f) (declining an opinion where the request does not meet Rule 3's form)
• RI EAP Rule 3 (requiring a representation that the opinion will not affect parties to a pending action)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Opinion 88-16: Representing a Wife in Divorce Against a Current Client Husband Who Shared Confidential Financial Information: another 1988 panel opinion on conflicts arising between representations of related clients, though the panel reached a substantive holding there rather than declining to opine.

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%2088-19.pdf

Original opinion text

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

DIGEST OF ETHICS ADVISORY PANEL
OPINION #88-19, REQUEST #32
Issued July 28, 1988

An attorney seeks Panel advice as to whether it is permissible under the Code of Professional Responsibility for his firm to continue to represent one client ("client A") where a dispute has arisen between client A and another client of the firm ("client B").

The attorney advises the Panel that the firm has represented client A on a range of matters for many years. The attorney further advises the Panel that within the last several years the firm has represented client B in several isolated matters. The attorney explains that client A entered into a contractual relationship with client B; that client B was represented by outside counsel and that the attorney's firm represented client A with the full knowledge and consent of all. The attorney explains, further, that a dispute has now arisen concerning the interpretation of that contract, and the case is presently pending in court.

Client B objects to the firm's continued representation of client A because of its representation of client B in other unrelated matters and because of information which client B claims the firm may have obtained during such representation.

The Panel takes the position that it cannot reach any conclusions as to whether relevant, privileged information was conveyed to the firm during the earlier representation. The Panel commends the inquiring attorney for having sought and received the consent of both parties prior to his representation of client A. However, the Panel takes the position that a contested fact situation such as this must be resolved in an adversary proceeding.

Ethics Advisory Panel Rule 2, entitled "Jurisdiction" provides, in pertinent part, that the Panel may decline to render an advisory opinion if:

(e) The request contains insufficient information on which the Panel can made a judgment.

and

(f) The request is not in the form required by Rule 3 hereof.

Rule 3 sets forth the required form for all advisory opinion requests. It provides, in pertinent part, that an inquiry must contain a representation that "the opinion of the Panel will not affect interests of parties to any pending action."

The Panel takes the position that it cannot respond to your inquiry in view of Panel Rules 2(e), 2(f) and 3.

Ethics Advisory Panel advice is protective in nature. There is no requirement that an attorney abide by a Panel opinion, but if he or she does, he or she is fully protected from any charge of impropriety.