I represent a class suing an academic institution. Can I also represent an employee of that institution in a separate suit against it?

Plain-English summary

The inquiring attorney represents a group of clients in a class-action lawsuit against an academic institution. The attorney seeks to also represent an employee of the same institution in a lawsuit against the institution, and asked whether the class-action representation precludes representing the employee.

The opinion applies 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, unless the lawyer reasonably believes the representation will not be adversely affected and the client consents after consultation.

The opinion concludes that, on the facts presented, Rule 1.7 does not preclude the attorney from representing the employee, because the employee's interests do not appear adverse to the interests of the clients in the class-action lawsuit.

In practice

Under this opinion, representing both a class suing an institution and an employee suing the same institution is not precluded where the two sets of clients' interests are not adverse. The opinion keys its conclusion to that factual finding -- the employee's interests do not appear adverse to the class clients' -- so it does not treat the shared adversary (the institution) as, by itself, creating a Rule 1.7 conflict.

Common questions

Q: Does suing an institution for a class stop me from suing it for an employee too?

A: Not on these facts. The opinion concludes Rule 1.7 does not preclude representing the employee because the employee's interests do not appear adverse to the class-action clients' interests.

Q: What is the key factor in the opinion's analysis?

A: Whether the two clients' interests are adverse. The opinion finds the employee's interests do not appear adverse to those of the class-action clients.

Background and rules framework

The opinion interprets Rhode Island Rule of Professional Conduct 1.7(b) (conflict of interest: general rule), the analog of Model Rule 1.7. Rule 1.7(b) bars materially limited representation absent the lawyer's reasonable belief the representation will not be adversely affected and the client's consent after consultation; the opinion applies it to conclude there is no material limitation where the clients' interests are not adverse.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / RI RPC 1.7(b) (conflict of interest; material limitation)

See also

• RI EAP Opinion 93-65: representing a mother and grandparents in a custody placement under 1.7
• RI EAP Opinion 93-60: an adjunct-attorney representing a professor in a tenure suit 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%2093-86.pdf

Original opinion text

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

(FINAL)
ETHICS ADVISORY PANEL
OPINION #93-86, REQUEST #429
Issued October 19, 1993

The inquiring attorney represents a group of clients in a class-action lawsuit against an academic institution. The inquiring attorney seeks to represent an employee of the same academic institution in a lawsuit against the academic institution. The inquiring attorney asks whether his/her representation of the clients in the class-action lawsuit precludes him/her from representing the employee.

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

(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.

Under the facts presented in the inquiring attorney's inquiry, the Panel does not believe Rule 1.7 precludes the inquiring attorney from representing the employee because the employee's interests do not appear adverse to the interests of the clients in the class-action lawsuit.