A court retained me to represent it in pending investigations. May I keep actively practicing before that same court while I represent it as an institution?

Plain-English summary

The inquiring attorney had been retained by a court to represent it regarding several pending investigations. The court advised the attorney of the "rule of necessity," which permits a court to hear matters affecting its own interests and its right to be represented by counsel. The attorney asked whether he could actively practice before the court while representing it as an institution, and what limitations, if any, applied.

The Panel described the situation as one in which the attorney sought to appear before a tribunal with which he also had a client-lawyer relationship. It opined that nothing in the Rules of Professional Conduct prohibited a lawyer from appearing before a court he also represented, and that the client-lawyer relationship with the court imposed no ethical restraints on the attorney's ability to practice before it.

On the "rule of necessity," the Panel concluded it lacked the basis to interpret and apply that rule to the facts. It emphasized that its guidance was restricted to the Rules of Professional Conduct and did not extend to the State Ethics Code, the Code of Judicial Conduct, or any other rules, regulations, or laws bearing on the inquiry.

Currency note

This opinion was issued in 1993 (Opinion 93-90, issued December 8, 1993), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process. 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: May a lawyer who represents a court also practice before that court?

A: On these facts, yes. The Panel opined that nothing in the Rules of Professional Conduct prohibited a lawyer from appearing before a court he also represented.

Q: Did the client-lawyer relationship with the court create ethical limits on appearing there?

A: No. The Panel stated it did not believe the client-lawyer relationship with the court imposed any ethical restraints on the attorney's ability to practice before it.

Q: Did the Panel resolve the "rule of necessity" question?

A: No. The Panel concluded it lacked the basis to interpret and apply the rule of necessity, noting its guidance is confined to the Rules of Professional Conduct.

Background and rules framework

The inquiry turned on whether a lawyer's client-lawyer relationship with a court restricted the lawyer from appearing before that court. The Panel found no such restriction in the Rules of Professional Conduct and cited no specific rule number. It expressly declined to reach the "rule of necessity" and confined its guidance to the conduct rules, disclaiming any view under the State Ethics Code, the Code of Judicial Conduct, or other law.

Citations and references

Rules of Professional Conduct:

• The opinion cites no specific Rule of Professional Conduct; it rests on the general absence of any prohibition in the Rules.

See also

• RI EAP Opinion 2023-4: simultaneous town and municipal-agency representation is not a conflict
• RI EAP Opinion 93-79: school committee counsel may oppose the town before a state agency under Rule 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%2093-90.pdf

Original opinion text

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

ETHICS ADVISORY PANEL
OPINION #93-90 REQUEST #433
Issued December 8, 1993

The inquiring attorney has been retained by a court to represent it regarding several pending investigations. The inquiring attorney was advised by the Court of the "rule of necessity" that permits a court to hear matters affecting its own interests and its right to be represented by counsel. The inquiring attorney asks whether he/she may actively practice before the Court while representing it as an institution and what, if any, limitations exist in this regard.

These facts present a unique situation in which the inquiring attorney seeks to appear before a tribunal with which he/she also has a client/lawyer relationship.

The Panel opines that there is nothing in the Rules of Professional Conduct prohibiting a lawyer from appearing before a court that he/she also represents. The Panel does not believe that the inquiring attorney's client/lawyer relationship with the Court imposes any ethical restraints on his/her ability to practice before the Court.

The Panel notes that the inquiring attorney raises the "rule of necessity" with respect to the ability of the Court to hear matters affecting it and its right to be represented by counsel. The Panel has reviewed the rule of necessity and concludes that it does not have the basis to interpret and apply that rule to the facts of this inquiry. 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, Code of Judicial Conduct, or any other rules, regulations or laws that may have bearing on the issues raised by this inquiry.