Our city law department defends municipal employees in a negligence suit but has also prosecuted some of them. Can we keep representing those employees?

Plain-English summary

The inquiring attorney is a member of a municipality's law department. Over the past several years the attorney defended the municipality and several municipal employees in a negligence lawsuit. During that time, the attorney acted as prosecutor against two of the same employees in matters unrelated to the negligence lawsuit, and internal disciplinary action is pending against a third employee. Two of the employees do not consent to continued representation by the municipality's law department in the negligence lawsuit. The attorney asked whether the law department may continue to represent, in the negligence lawsuit, those employees it has prosecuted or who are in adverse positions to the municipality.

The opinion applies Rule 1.7(a), which bars representing a client whose representation will be directly adverse to another client unless the lawyer reasonably believes the representation will not adversely affect the relationship with the other client and each client consents after consultation.

The opinion finds the municipality's law department has a lawyer-client relationship with both the municipality and the employees, and that the employees who have been prosecuted (or will be) have interests directly adverse to the municipality. It concludes that representation is not proper unless the lawyer reasonably believes it will not adversely affect the relationship with the other client and each client consents after consultation. Because two of the affected employees do not consent, the opinion concludes representation by the municipality's law department is impermissible.

In practice

Under this opinion, a public law office that simultaneously represents the municipality and its employees, and that has prosecuted some of those employees, faces directly adverse concurrent representation under Rule 1.7(a). The opinion frames the employees' adverse position to the municipality as the conflict and treats each affected client's consent as required. Because two employees withheld consent, the opinion holds the department may not continue to represent them.

Common questions

Q: Can a city law department defend employees it has also prosecuted?

A: Not without consent. The opinion concludes the department may not continue to represent employees it has prosecuted or who are adverse to the municipality, where Rule 1.7's conditions are not met.

Q: Why are the employees' interests adverse to the city?

A: The opinion finds employees who have been prosecuted by the law department have interests directly adverse to the municipality, which the department also represents.

Q: What made the continued representation impermissible here?

A: Two of the affected employees do not consent, so Rule 1.7(a)'s consent requirement is not satisfied and the opinion concludes representation is impermissible.

Background and rules framework

The opinion interprets Rhode Island Rule of Professional Conduct 1.7(a) (conflict of interest: general rule), the analog of Model Rule 1.7. Rule 1.7(a) bars directly adverse concurrent representation unless the lawyer reasonably believes the relationship with the other client will not be adversely affected and each client consents after consultation. The opinion applies it to a municipal law department representing both the municipality and its employees.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / RI RPC 1.7(a) (conflict of interest; directly adverse representation and consent)

See also

• RI EAP Opinion 93-74: water board counsel's firm appearing before the zoning board under 1.7
• RI EAP Opinion 93-79: school committee counsel opposing the town before a state agency under 1.7

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%2093-83.pdf

Original opinion text

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

(FINAL)
ETHICS ADVISORY PANEL
OPINION #93-83, REQUEST #425
Issued October 19, 1993

The inquiring attorney is a member of the law department of a municipality. He/she has defended the municipality and several municipal employees in a negligence lawsuit over a period of the past several years. During that time, the inquiring attorney acted as prosecutor against two (2) of the same employees for matters unrelated to the negligence lawsuit. Internal disciplinary action is pending against a third employee. Two (2) of the above-mentioned employees do not consent to their continued representation by the municipality's law department in the negligence lawsuit. The inquiring attorney asks whether the law department may continue to represent in the negligence lawsuit those employees who have been prosecuted by the law department, or who are in adverse positions to the municipality.

Rule 1.7 entitled "Conflict of Interest: General Rule" provides in pertinent part as follows:

Rule 1.7. Conflict of Interest: General Rule. - (a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:

(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and

(2) each client consents after consultation.

Based on the facts of this inquiry, the Panel believes that the members of the law department may not continue to represent those employees it has prosecuted, or employees in adverse positions to the municipality, under Rule 1.7. In this case, the municipality's law department has a lawyer/client relationship with the municipality and the employees. The employees who have been prosecuted, or will be prosecuted, have interests directly adverse to the municipality. Thus, representation is not proper unless the lawyer reasonably believes the representation will not adversely affect the relationship with the other client and each client consents after consultation. Here, two of the affected employees do not consent, therefore, representation is impermissible by the municipality's law department.