A director of a state agency is suing the agency in his individual capacity. Does the agency's counsel have to withdraw?

Plain-English summary

The inquiring attorney asked whether the appearance of a director of a state agency as a party plaintiff in his individual capacity, in a case against the state agency, requires the legal counsel for the state agency (the defendant) to withdraw.

The panel took the position that the counsel's withdrawal from his primary responsibilities at the state agency will not cure the conflict created by the director being involved on both sides of the case. Instead, the panel stated that another government officer, not subject to the director's authority, should be designated to make final decisions regarding the case, and the director should advise the court by formal declaration that he has, in such manner, removed himself entirely and effectively from all control over the state agency's conduct and disposition of the case.

Currency note

This opinion was issued in 1991, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which renumbered and amended the conflict-of-interest rules. 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 Treat this page as historical context, not current guidance.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: Does the agency's counsel have to withdraw?

A: Per the opinion, no. The panel stated that counsel's withdrawal would not cure the conflict created by the director being on both sides of the case.

Q: What is the source of the conflict?

A: Per the opinion, the director is involved on both sides of the case, as the individual plaintiff and as the head of the defendant agency.

Q: What does the panel say should happen instead?

A: Per the opinion, another government officer not subject to the director's authority should be designated to make final decisions, and the director should advise the court by formal declaration that he has removed himself entirely from all control over the agency's conduct and disposition of the case.

Background and rules framework

The opinion cites no numbered Rule of Professional Conduct. The panel resolved the inquiry on general conflict-of-interest principles as applied to government representation: the conflict arises from the person, the director, standing on both sides of the case, so it cannot be cured by the lawyer's withdrawal. The panel's remedy shifts decision-making authority to an independent officer and requires the director to disclaim control on the record.

Citations and references

Rules of Professional Conduct:

• None cited. The panel resolved the inquiry on general conflict-of-interest principles applied to government representation.

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 91-79: Suing a City After Representing Its Council
• RI EAP Op. 91-69: A Firm as Counsel to an Agency and a Corporation Before It
• RI EAP Op. 91-63: A Government Lawyer Representing Private Clients Before Other Agencies

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%2091-83.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 #91-83, Request #214
Issued December 4, 1991

An attorney seeks Panel advice as to whether the appearance of a director of a state agency as a party plaintiff in his individual capacity in a case against the state agency requires the legal counsel for the state agency/defendant to withdraw.

The Panel is of the opinion that the legal counsel's withdrawal from his primary responsibilities at the state agency will not cure the conflict created by the director being involved on both sides of the case. Rather, another government officer, not subject to the director's authority, should be designated to make final decisions regarding this case, and the director should advise the court by formal declaration that he has in such manner removed himself entirely and effectively from all control over the state agency's conduct and disposition of the case.