I've been offered a part-time position in a city solicitor's office limited to advising the Zoning Board, and I want to stay at my private firm. Can I still sue the city in unrelated matters like personal injury cases, and does it matter what my specific duties are?

Plain-English summary

The attorney was offered a position in the city solicitor's office of "City X," which encompasses several different and distinct roles, such as advising the Zoning Board or defending City X in personal injury cases. She wished to remain part of her current law firm while taking the position. She asked whether she could sue City X in her private capacity, for example in a personal injury case, and whether the answer depended on her precise responsibilities within the solicitor's office, such as whether being limited to advising the Zoning Board would let her sue the city in an unrelated personal injury matter. She also asked whether any resulting disqualification would be personal to her or would extend to her entire firm.

The panel quoted Rule 1.7(a)'s bar on representing a client directly adverse to another client absent reasonable belief the representation will not adversely affect the other relationship and consent after consultation, and noted Professor Hazard's observation that the "reasonable belief" requirement amounts to a virtually per se ban on simultaneous representation of adverse interests because it imposes an external standard of propriety. The panel held that accepting a position in the city solicitor's office makes the city a client of the attorney, quoting New Jersey Advisory Committee on Professional Ethics Opinion 173 for the proposition that an attorney representing a municipality has as clients the entire municipality and should avoid retainers that place the attorney in a position of seeking relief from, or opposing, the municipality or its agencies on behalf of a private client. On that basis, the panel held that if the attorney accepts any position in City X's solicitor's office, she may not thereafter represent a client whose position is directly adverse to City X, regardless of whether her specific duties are limited to a single area such as Zoning Board matters. The panel then quoted Rule 1.10(a)'s imputed disqualification provision, barring lawyers associated in a firm from representing a client any one of them would be prohibited from representing under Rules 1.7, 1.8(c), 1.9, or 2.2, and held that if the attorney accepts any position in the solicitor's office, all members of her firm are disqualified from representing a client whose position is directly adverse to City X.

Currency note

This opinion was issued in February 1990, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.7 and 1.10 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: If my government position is limited to one narrow area, can I still sue the government entity in unrelated matters through my private practice?

A: No, according to this opinion. The panel held that accepting a position in the city solicitor's office makes the city a client of the attorney regardless of her specific responsibilities, so she may not thereafter represent a client directly adverse to the city, even in an unrelated area.

Q: Does the conflict extend to the rest of my law firm, or is it just personal to me?

A: It extends to the firm. The panel held that under Rule 1.10's imputed disqualification, if the attorney accepts any position in the solicitor's office, all members of her firm are disqualified from representing a client whose position is directly adverse to the city.

Q: What makes a municipality a "client" for conflicts purposes?

A: The panel held that accepting a position in the city solicitor's office makes the city a client of the attorney, citing New Jersey Advisory Committee on Professional Ethics Opinion 173's observation that an attorney representing a municipality has as clients the entire municipality.

Background and rules framework

The opinion applies Rule 1.7(a) of the Rhode Island Rules of Professional Conduct, as adopted effective November 15, 1988, barring representation directly adverse to another client absent reasonable belief and consent, and Rule 1.10(a), imputing one lawyer's Rule 1.7 disqualification to the entire firm, to an inquiry about accepting a part-time city solicitor's office position while remaining in private practice.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest: general rule)
• MR 1.10 (imputed disqualification)
• RI RPC 1.7(a), 1.10(a), as adopted November 15, 1988

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• New Jersey Supreme Court Advisory Committee on Professional Ethics, Opinion 173, cited for the proposition that an attorney representing a municipality has the entire municipality as a client and should avoid conflicting retainers.

See also

• ABA Formal Op. 97-405: Conflicts in Representing Government Entities
• ABA Formal Op. 97-409: Conflicts of Interest: Successive Government and Private Employment

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%2090-14.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 90-14, REQUEST #89
Issued February 27, 1990

An attorney seeks Panel advice as to whether a conflict of interest would arise under the circumstances she describes.

The attorney advises the Panel that she has been offered a position in the city solicitor's office of City X. The attorney advises the Panel that within the city solicitor's office there are several different and distinct positions including, for example, advising the Zoning Board or defending City X in personal injury cases. The attorney indicates that the position with the city solicitor's office would enable her to maintain a private practice and that she wishes to remain part of the law firm with which she is now associated. The attorney seeks Panel advice as to whether she may sue City X in her capacity as private attorney in, for example, a personal injury case. The attorney asks whether the answer to this query depends on her precise responsibilities within the city solicitor's office. For example, if the attorney's responsibilities to City X are limited to advising the Zoning Board, may she sue the City in a personal injury case? The attorney also asks whether any disqualification which arises is personal to her or whether it disqualifies her entire firm.

Rule 1.7, titled "Conflict of Interest" provides, in pertinent part:

(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

In reviewing the practical effect of Rule 1.7(a) Professor Hazard notes that the requirement of "reasonable belief" amounts to a virtually per se ban on simultaneous representation of adverse interests, since the words impose an external standard of propriety. I G. Hazard The Law of Lawyering 132-133 (1989).

Accepting a position in the city solicitor's office makes the city a client of the attorney. In Opinion 173 the New Jersey Supreme Court Advisory Committee on Professional Ethics notes:

In a broad sense an attorney representing a municipality or any of its agencies has as his 'clients' the entire municipality, and he should avoid any retainers from others which may place him in a position where he appears to be either seeking relief or favor from the municipality or any of its agencies for a private client or to oppose action by the municipality, or its agencies on behalf of a private client.

The Panel takes the position that if the attorney accepts any position in the solicitor's office of City X she may not thereafter represent a client whose position is directly adverse to City X.

Rule 1.10 titled "Imputed Disqualification" provides, in pertinent part:

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9 or 2.2.

The Panel takes the position that if the attorney accepts any position in the solicitor's office of City X all members of her firm are disqualified from representing a client whose position is directly adverse to City X.

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.