My law partner was just appointed to the town council my clients are suing. Can I keep prosecuting the lawsuit even though it now targets my partner's board?

Plain-English summary

Attorneys A and B practice in a partnership and together represented several clients in a Superior Court lawsuit against a municipality's mayor, treasurer, and council. Attorney B was recently appointed a member of the council of the same municipality. As a result, Attorney B filed a motion to withdraw as counsel and indicated he or she would abstain from voting or participating in any matter affecting the rights of the clients in the lawsuit. Attorney A asked whether he or she may continue to represent the clients, in effect prosecuting a lawsuit against his or her own partner.

The opinion concludes that Attorney B is prohibited from continuing to act as counsel under Rule 1.7(b), which bars representation that may be materially limited by the lawyer's responsibilities to another client or third person or by the lawyer's own interests absent the reasonable-belief and consent conditions. Because of Attorney B's disqualification under Rule 1.7, the opinion applies Rule 1.10(a), under which, while lawyers are associated in a firm, none may knowingly represent a client when any one of them practicing alone would be prohibited by Rules 1.7, 1.8(c), 1.9, or 2.2.

The opinion notes that under Rule 1.10(d) the affected client may waive the disqualification under the conditions stated in Rule 1.7. Here, however, it concludes Attorney A cannot reasonably believe that the representation of the clients will not be adversely affected despite the clients' consent, and therefore Attorney A may not continue to represent the clients.

In practice

Under this opinion, one partner's new role on the sued municipal council disqualifies that partner under Rule 1.7(b), and Rule 1.10 imputes the disqualification to the partner who remains on the case. The opinion treats the Rule 1.10(d) waiver as unavailable on these facts, not because consent is impossible, but because it finds the remaining partner cannot reasonably believe the representation would be unaffected -- one of the two conditions Rule 1.7 requires. Attorney B's motion to withdraw and pledge to abstain did not cure the imputed conflict.

Common questions

Q: Can the remaining partner keep the case after the other partner joins the defendant council?

A: No. The opinion concludes Attorney A may not continue, because Attorney B's Rule 1.7(b) disqualification is imputed to Attorney A under Rule 1.10.

Q: Does the client's consent cure the conflict?

A: Not here. The opinion notes Rule 1.10(d) allows waiver under Rule 1.7's conditions, but finds Attorney A cannot reasonably believe the representation will not be adversely affected even with consent.

Q: Did Attorney B's abstention and motion to withdraw solve the problem?

A: No. The opinion still finds Attorney B disqualified under Rule 1.7(b) and imputes that disqualification to Attorney A under Rule 1.10.

Background and rules framework

The opinion interprets Rhode Island Rules of Professional Conduct 1.7(b) (conflict of interest: general rule) and 1.10 (imputed disqualification), analogs of the corresponding Model Rules. Rule 1.7(b) bars materially limited representation absent reasonable belief and consent; Rule 1.10(a) imputes one firm lawyer's Rule 1.7/1.8(c)/1.9/2.2 disqualification to the others, and Rule 1.10(d) permits waiver under Rule 1.7's conditions.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / RI RPC 1.7(b) (conflict of interest; material limitation)
• MR 1.10 / RI RPC 1.10(a), (d) (imputed disqualification; waiver under Rule 1.7)

See also

• RI EAP Opinion 93-47: after firm dissolution a lawyer may take an adverse lease matter under 1.10(c)
• RI EAP Opinion 93-66: "an association of independent attorneys" and firm status under 1.10

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%2093-82.pdf

Original opinion text

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

(FINAL)
ETHICS ADVISORY PANEL
OPINION #93-82, REQUEST #424
Issued December 8, 1993

Attorneys A and B practice law in a partnership and together represented several clients in a Superior Court lawsuit against a municipality's mayor, treasurer and council. Attorney B was recently appointed as a member of the council of the same municipality. As a result, Attorney B has filed a motion to withdraw as counsel in the lawsuit and indicates he/she will abstain from voting or participating in any matter affecting the rights of the clients involved in the lawsuit. Attorney A inquires whether he/she may continue to represent the clients, in effect prosecuting a lawsuit against his/her partner.

Under the facts of this inquiry, the Panel believes that Attorney B is prohibited from continuing to act as counsel in the lawsuit pursuant to Rule 1.7(b). Rule 1.7(b) states:

(b) A lawyer shall not represent a client if the representation of that 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, unless:

(1) the lawyer reasonably believes the representation will not be adversely affected; and

(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

As a result of Attorney B's disqualification under Rule 1.7, Attorney A is also prohibited from continuing to represent the clients in the lawsuit pursuant to Rule 1.10. That Rule states:

Rule 1.10. Imputed Disqualification: General Rule. - (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 notes that pursuant to paragraph (d) of Rule 1.10, the affected client may waive the disqualification under the conditions stated in Rule 1.7. However, in this case the Panel believes that Attorney A cannot reasonably believe that the representation of the clients will not be adversely affected despite consent by the clients. Thus, the Panel concludes Attorney A may not continue to represent the clients.