The mayor appointed me to a narrow municipal committee overseeing one fund. Can my firm keep suing the same municipality and appearing before its boards in unrelated matters?

Plain-English summary

The inquiring attorney was appointed by a municipality's mayor to a "special committee" overseeing the expenditure of a particular fund. The attorney is also a partner in a firm with several actions pending against the same municipality. He asked whether his committee membership conflicts with his firm's continuing representation of litigants adverse to the municipality, or of private clients before the municipality's council or zoning or planning boards, stating that those matters "in no manner relate to" the committee's responsibilities.

The opinion emphasizes that the attorney is a member of, not counsel to, a municipal commission with a relatively narrow function. It distinguishes situations where a firm member sits in a non-legal capacity on a body with broad powers (citing Opinion 89-22, hospital board), and where a lawyer performing legal services for one town board appears before other town boards for adverse clients (citing Opinion 90-11 and Rules 1.7(a) and 1.13). Because the attorney is not counsel for the committee, his membership cannot result in a Rule 1.7(a) violation.

The opinion then considers Rule 1.7(b): even without an attorney-client relationship, a violation could arise if the lawyer's representation of a client "may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests." On these facts, the Panel does not perceive that the firm's representation in matters unrelated to the committee's narrow function would be materially limited by the membership. Drawing guidance from Rule 1.11 (successive government and private employment) and its screening rationale -- that screening and waiver prevent the disqualification rules from too severely deterring public service -- the Panel concludes that other members of the firm are not precluded by the Rules from representing private clients in litigation against the municipality or appearing before its council or zoning or planning boards.

In practice

Under this opinion, the key facts are that the lawyer sits as a member rather than as counsel, the committee's function is narrow, and the firm's matters are unrelated to it. On that combination, there is no Rule 1.7(a) violation (no attorney-client relationship with the committee), no material limitation under Rule 1.7(b), and no Rule 1.11(a) problem because the firm is not handling any matter in which the lawyer participates as a committee member. The opinion limits itself to the Rules of Professional Conduct and does not reach the State Ethics Code.

Common questions

Q: Does serving on a municipal committee disqualify a lawyer's firm from suing that municipality?

A: Not on these facts. The opinion concludes the firm is not precluded from representing clients in unrelated matters adverse to the municipality.

Q: Why is there no Rule 1.7(a) conflict?

A: Because the lawyer is a member of the committee, not its attorney; the opinion holds that without an attorney-client relationship, the membership cannot result in a Rule 1.7(a) violation.

Q: When could a conflict still arise?

A: The opinion notes Rule 1.7(b) could be violated if the lawyer's representation were materially limited by responsibilities to a third person or the lawyer's own interests, but finds no such limitation given the committee's narrow function and the unrelated matters.

Q: How does Rule 1.11 factor in?

A: The opinion draws guidance from Rule 1.11 and its screening rationale, reasoning that the Rule informs what a lawyer may not do while in government service, and finds no bar because the firm's matters do not involve any matter in which the lawyer participates as a committee member.

Background and rules framework

The opinion interprets Rhode Island Rules of Professional Conduct 1.7 (conflict of interest: general rule), 1.11 (successive government and private employment), and 1.13 (organization as client), analogs of the corresponding Model Rules. Rule 1.7(a) addresses direct adversity between clients; Rule 1.7(b) addresses representations materially limited by other responsibilities or the lawyer's own interests; Rule 1.11(a) permits screening of a disqualified lawyer with fee-apportionment and government notice. The opinion also relies on prior Panel Opinions 89-22 and 90-11 to distinguish broad-power board memberships and dual town-board roles.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / RI RPC 1.7(a), 1.7(b) (conflict of interest: general rule)
• MR 1.11 / RI RPC 1.11(a) (successive government and private employment; screening)
• MR 1.13 / RI RPC 1.13 (organization as client)

Other opinions cited:

• RI EAP Opinion 89-22 (partner on a hospital board; representation adverse to the hospital with consent)
• RI EAP Opinion 90-11 (lawyer for one town board appearing before other town boards)

See also

• RI EAP Opinion 92-63: city solicitor may not negotiate private work with an adverse party under 1.11(d)
• RI EAP Opinion 93-17: a part-time municipal judge's law firm is screened by analogy to 1.11

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%2093-24.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Final
ETHICS ADVISORY PANEL
Opinion #93-24, Request #357
Issued June 2, 1993

The inquiring attorney has been appointed by the mayor of a municipality to a "special committee" which is to oversee the expenditure of a particular fund. The attorney is also a partner in a law firm which has several actions pending against the same municipality. The attorney asks whether his membership on this "special committee" conflicts with his firm's continuing representation of litigants adverse to the municipality or of private clients before the municipality's council or zoning or planning board. The attorney states that these other matters "in no manner relate to" the responsibilities of the "special committee."

In this case the inquiring attorney is a member of, and not the attorney for, a municipal commission with a relatively narrowly defined function. The inquiry is, therefore, distinguishable from situations in which a member of a law firm sits in a non-legal capacity on a body having broad powers over a municipality or non-profit corporation, such as a town council or a board of directors. See, e.g., Opinion 89-22 where the Panel ruled that an attorney whose partner sat on the board of directors of a hospital could represent an individual client in a suit adverse to the hospital, but only with the consent of the individual and the hospital.

This inquiry is also distinguishable from a situation in which a lawyer performing legal services for one town-related board seeks to appear before other town boards on behalf of clients with interests adverse to the town. See, e.g., Opinion 90-11, and Rules 1.7(a) and 1.13. As the inquiring attorney is not an attorney for the "special committee," the inquiring attorney's membership on that committee cannot result in a violation of Rule 1.7(a).

Despite the absence of an attorney-client relationship, a violation of Rule 1.7(b) may arise if the inquiring attorney's representation of a client may be "materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests." While the "third person" need not be a client and the "lawyer's own interests" need not involve a client, the Panel does not perceive in the circumstances of this inquiry that the lawyer's representation of clients in matters unrelated to the relatively narrow function of the "special committee" would be materially limited by the inquiring lawyer's membership on the "special committee."

The Panel has, in other situations involving attorneys serving as part-time public employees and officers, found guidance in Rule 1.11, entitled "Successive Government and Private Employment." Rule 1.11(a) states that:

(a) Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated as a public officer or employee. No lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:

(1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with provisions of this rule.

Rule 1.11 was intended to cover successive full-time, rather than concurrent part-time government service and private practice. However, the Panel believes that just as the Rule provides guidance as to that which an attorney may not do after he leaves government service, Rule 1.11 also provides guidance as to what an attorney may not do while he remains in government service.

It should be noted that Rule 1.11(a) allows a disqualified attorney to be screened from certain matters so that other members of his firm may pursue matters that the former public officer could not pursue. While the Panel has reservations about the effectiveness and appropriateness of any screening procedure where the screened partner is concurrently a public officer, the Panel believes that the rationale for allowing screening is relevant to the instant inquiry. That rationale, according to the comments, is that:

The provisions for screening and waiver are necessary to prevent the disqualification rules from imposing too severe a deterrent against entering public service.

According to the inquiry, the matters in which other members of the inquiring attorney's firm would represent interests adverse to the municipality "in no manner relate to" the sphere of responsibilities of the "special committee." The Panel does not perceive that the inquiring attorney's membership on the "special committee" could materially limit his firm's representation of other clients in unrelated matters (Rule 1.7(b)) or that the firm would be representing a client in connection with any matter in which the inquiring lawyer would participate as a member of the "special committee" (Rule 1.11(a)). Under these circumstances, the Panel concludes that other members of the inquiring attorney's firm are not precluded by the Rules of Professional Conduct from representing private clients in litigation against the municipality or from appearing on behalf of clients before the municipality's council or zoning or planning boards.

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, regulations or laws that may have a bearing on the issues raised by this inquiry.