As a volunteer city solicitor handling a zoning fight against a manufacturer, can I take private work drafting an agreement for that manufacturer's trade association?

Plain-English summary

The inquiring attorney is in private practice and serves as a volunteer City Solicitor of City A. The attorney attends City A's zoning board meetings and gives legal advice on pertinent issues. The zoning board has recently been involved in a stop work order against a manufacturer in City A, and the City Solicitor's Office must represent City A against the manufacturer in an appeal related to the stop work order. In addition, the president of the manufacturing company inquired whether the attorney would be interested in drafting an agreement for a trade association of which the manufacturing company is a member; the trade association has retained the attorney's law firm in the past.

The panel said Rhode Island Rule 1.11(d) ("Successive Government and Private Employment") applies. Rule 1.11(d)(2) provides that, except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not negotiate for private employment with any person who is involved as a party, or as attorney for a party, in a matter in which the lawyer is participating personally and substantially. The panel concluded that a conflict does exist based on Rule 1.11(d)(2) and the facts presented, because the rule prohibits a government lawyer from negotiating for private employment with any person who is involved as a party, or as attorney for a party, in a matter in which the lawyer is participating personally or substantially.

In practice

Under this opinion, a city solicitor who is participating personally and substantially in a zoning matter against a manufacturer has a Rule 1.11(d)(2) conflict in negotiating private employment tied to that party. The opinion grounds the conflict in the rule's bar on a public officer negotiating private employment with a person involved as a party (or as counsel for a party) in the matter the officer is handling.

Common questions

Q: Can I take the private drafting work offered by a party I am opposing as city solicitor?

A: Per the opinion, the panel found a conflict under Rule 1.11(d)(2), which bars a public officer from negotiating for private employment with a person involved as a party in a matter the officer is participating in personally and substantially.

Q: What triggers the Rule 1.11(d)(2) bar?

A: Per the opinion, the lawyer's serving as a public officer and negotiating private employment with a person involved as a party, or as attorney for a party, in a matter in which the lawyer is participating personally and substantially.

Q: Does the trade association's past relationship with my firm change the result?

A: Per the opinion, the panel found a conflict based on Rule 1.11(d)(2) and the facts presented; it did not treat the prior relationship as removing the conflict.

Background and rules framework

The opinion applies Rhode Island Rule 1.11(d) (successive government and private employment), corresponding to Model Rule 1.11. The panel read Rule 1.11(d)(2) as prohibiting a public officer from negotiating private employment with a person involved as a party, or as counsel for a party, in a matter in which the officer is participating personally and substantially, and found that bar triggered on these facts.

Citations and references

Rules of Professional Conduct:

• MR 1.11 (special conflicts of interest for former and current government officers and employees)
• RI RPC 1.11(d), 1.11(d)(2)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 92-41: Town Solicitor Defending the Town Against a Council Member's Tax Suit
• RI EAP Op. 92-39: Rule 1.11 Bars a Former Government Investigator From Adverse Representation

Currency note

This opinion was issued in 1992 (Opinion 92-63), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.11 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, which renumbered and amended Rule 1.11 (special conflicts for government officers and employees). 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.

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%2092-63.pdf

Original opinion text

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

ETHICS ADVISORY PANEL
Opinion 92-63, Request #289
Issued July 23, 1992

An attorney seeks Panel advice as to whether a conflict of interest exists. The attorney is in private practice and a volunteer City Solicitor of City A. The attorney attends City A's zoning board meetings and gives legal advice on pertinent issues. Recently the zoning board has been involved in a stop work order against a manufacturer in City A. The City Solicitor's Office must represent City A against the manufacturer in an appeal related to the stop work order. In addition, the President of this manufacturing company inquired as to whether the attorney would be interested in drafting an agreement for a trade association of which the manufacturing company is a member. The trade association has retained the attorney's law firm in the past.

It appears that Rhode Island Rule of Professional Conduct 1.11(d) "Successive Government and Private Employment" applies to this inquiry. The Rule states that:

(d) Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not:

(2) negotiate for private employment with any person who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially ....

It is the Panel's opinion that a conflict does exists based on Rule 1.11(d)(2) and the facts presented. The Rule prohibits a government lawyer from negotiating for private employment with any person "who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally or substantially."