I'm a part-time municipal solicitor who also has a private firm. When my firm's private client sues the town, can an assistant solicitor I supervise represent the town?

Plain-English summary

The inquiring attorney is the solicitor for a municipality and also a member of a private law firm. On occasion, clients of his firm become involved in litigation with the municipality; in those instances the inquiring attorney and his firm have withdrawn from the private client, and the municipality has engaged other private counsel. The attorney asked whether an assistant solicitor, employed by the municipality and under the attorney's direct supervision, could instead represent the municipality in these situations.

The panel framed the question as the interplay of Rule 1.10 (imputed disqualification: general rule) and Rule 1.11 (successive government and private employment). It assumed that the inquiring attorney's involvement with the private client was such that neither he nor his firm could represent an opposing party against that client under Rules 1.7 and 1.10, and asked whether a similar rule of imputed disqualification applies to the municipal solicitor's office. The panel noted that Rule 1.11's proscriptions are not as broad as Rule 1.10's, and that Rule 1.11's screening and waiver provisions exist so that disqualification does not deter movement between government and private practice.

While Rule 1.11 does not expressly address simultaneous government and private practice, the panel reasoned that the rules for such simultaneous practice should not be less restrictive than those for successive practice, and that Rule 1.10 applies to a part-time government lawyer because his firm's private clients are imputed to him for as long as he remains associated with the firm. The panel accepted that, by analogy to Rule 1.11, there may be situations in which one "part-time" member of a government law office can be so screened from a matter that the whole office is not disqualified, but concluded that this was not such a case: the matter could be referred only to a subordinate under the inquiring attorney's supervision. On those facts the panel could not conclude the inquiring attorney could be effectively screened or removed so as to avoid the imputed disqualification and the appearance of impropriety the rules are meant to prevent.

In practice

Under this opinion, a part-time municipal solicitor who also practices privately carries his firm's private-client conflicts into the solicitor's office through Rule 1.10, and the analogy to Rule 1.11 permits screening only where the conflicted lawyer is genuinely removed from the matter. The opinion holds that referral to a subordinate the solicitor supervises does not accomplish that screening, so the office is not able to take on the matter against the solicitor's private client. The panel added that its guidance is limited to the Rules of Professional Conduct and does not reach the State Ethics Code or other laws.

Common questions

Q: Do my private firm's client conflicts follow me into my part-time government office?

A: Per the opinion, yes; Rule 1.10 imputes the private clients of the part-time government lawyer's firm to him for as long as he remains associated with the firm.

Q: Can I just hand the matter to an assistant solicitor I supervise?

A: Per the opinion, no on these facts; the panel could not conclude the inquiring attorney was effectively screened when the only person to whom he could refer the matter was a subordinate under his own supervision.

Q: Is screening ever possible within a government law office?

A: Per the opinion, by analogy to Rule 1.11 there may be situations in which one part-time member is so screened or removed that the whole office is not disqualified, but the panel found this was not such a situation.

Background and rules framework

The opinion applies Rhode Island Rules 1.10 (imputed disqualification) and 1.11 (successive government and private employment), corresponding to Model Rules 1.10 and 1.11, and assumes a personal conflict under Rules 1.7 and 1.10. The panel read the comments to Rule 1.10 as covering lawyers in an organization's legal department or a legal services organization, read Rule 1.11's screening provisions as narrower than Rule 1.10's imputation, and drew an analogy from successive practice to simultaneous part-time practice.

Citations and references

Rules of Professional Conduct:

• MR 1.10 (imputed disqualification: general rule)
• MR 1.11 (successive government and private employment)
• MR 1.7 (conflict of interest: current clients)
• RI RPC 1.10, 1.11 (including 1.11(b) and 1.11(d)), 1.7; comments to Rules 1.10 and 1.11

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 92-63: City Solicitor and Successive Government/Private Work
• RI EAP Op. 92-39: Former Government Investigator Barred Under 1.11
• RI EAP Op. 92-33: Office-Sharing With a Council Member Is Not a Firm

Currency note

This opinion was issued in early 1993 (Opinion 92-70, issued January 13, 1993), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.10 and 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 the conflict-of-interest and government-employment 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.

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%2092-70.pdf

Original opinion text

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

ETHICS ADVISORY PANEL
Opinion 92-70, Request #292
Issued January 13, 1993

The inquiring attorney is the Solicitor for a municipality and is also a member of a law firm engaged in private practice. On occasion, clients of his law firm become involved in litigation with the municipality. In such instances, the inquiring attorney and his private law firm have withdrawn from representation of the private client, and the municipality has engaged other private counsel to represent the municipality. The inquiring attorney asks whether an assistant solicitor, who is employed by the municipality and is under the inquiring attorney's direct supervision, can represent the municipality in these situations.

This inquiry raises issues as to the interplay of Rules 1.10 (Imputed Disqualification: General Rule) and Rule 1.11 (Successive Government and Private Employment). Rule 1.10 covers the circumstances under which members of the same "firm" may not represent opposing parties where any member of the firm could not individually represent that party by reason of a "conflict" under specified Rules of Professional Conduct. For purposes of our response, we assume that the inquiring attorney's involvement with the private client is such that neither he nor his firm could represent an opposing party against the private client consistent with Rules 1.7 and 1.10. The issue, then, is whether a similar rule of imputed disqualification is applicable to the municipal solicitor's office.

The comments to Rule 1.10 indicate that, in addition to traditional law firms, the rule is also intended to cover "lawyers employed in the legal department of a corporation or other organization, or in a legal services organization." In this context we understand the term "legal services organization" to mean a legal aid or public defender office and the term "other organization" to mean a non-governmental organization.

Rule 1.11 sets forth principles applicable to successive private and governmental employment. The comments confirm that these principles are not as broad in their proscriptions as is Rule 1.10. For example, Rule 1.11 would allow a lawyer leaving a public agency to be associated with a firm that represents a party adverse to the public agency if the lawyer is appropriately "screened" from the matter. The comments explain:

"[T]he rules governing lawyers presently or formerly employed by a governmental agency should not be so restrictive as to inhibit transfer of employment to and from the government. The government has a legitimate need to attract qualified lawyers as well as to maintain high ethical standards. The provisions for screening and waiver are necessary to prevent the disqualification from imposing too severe a deterrent against entering public service."

Rule 1.11(b) prohibits a lawyer who has been employed by a government agency from representing a client before that agency for one year after the lawyer leaves that agency. The comments explain that this rule "is intended to prevent the appearance of impropriety." Under Rule 1.11(d), if the inquiring attorney had left private practice to become a full-time employee of the municipal solicitor's office, he could not "participate in a matter in which the lawyer participated personally and substantially while in private practice...unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer's stead in the matter." The comments further state that this rule "does not disqualify other lawyers in the agency with which the lawyer in question has become associated."

While Rule 1.11 does not expressly contemplate simultaneous government and private practice, the rules applicable to such simultaneous practice should not be less restrictive than those expressly applicable to successive private and governmental practice. Rule 1.10 is applicable to the part-time government lawyer because for so long as the part-time government employee remains associated with a private law firm, the private clients of the part-time government lawyer's firm will be imputed to him under Rule 1.10.

The Panel believes that by analogy to Rule 1.11 there may be situations in which one "part-time" member of a government law office may be so screened or removed from involvement with a matter between the government and his private client so that the entire government law office is not disqualified from exercising its customary duties. However, the Panel is unable to conclude that the instant case is such a situation. In the instant case, the matter could be referred by the inquiring attorney only to a subordinate who is under the supervision of the inquiring attorney.

The Panel is unable to conclude in this situation that the inquiring attorney can be effectively screened or removed from the matter so as to avoid the imputed disqualification under Rules 1.10 and 1.11 and the appearance of impropriety that these rules were intended to avoid.

The Panel's guidance is restricted to interpretations of the Rules of Professional Conduct and does not extend to issues under the State Ethics Code or any other rules, regulation or laws that may have bearing on the issues raised by this inquiry.