I am an assistant town solicitor prosecuting misdemeanors for one town. Can I take the same prosecutor role for a second town, when both towns' cases are scheduled the same day, under Rule 1.7?

Plain-English summary

The inquiring attorney was an assistant solicitor for Town A, prosecuting misdemeanors for the town's police department, with Town A billed on an hourly basis. The attorney wished to apply for an advertised position with Town B in the same prosecutorial role; Town B would bill a flat amount per year, and the prosecutions for both towns were scheduled for the same day. The attorney asked whether prosecuting for both towns posed any conflict and whether the fee arrangements would violate any ethical rules.

The Panel set out Rule 1.7 ("Conflict of Interest: General Rule"), covering directly-adverse conflicts under Rule 1.7(a) and material-limitation conflicts under Rule 1.7(b). It opined that prosecuting cases for Town B would not violate the Rules of Professional Conduct, because the representation of Town A would not be directly adverse to Town B, so the attorney can represent Town B as a special prosecutor for the police department. The Panel suggested that the attorney should gain each client's consent after consultation before undertaking the representation.

As to the fee arrangement, the Panel declined to render an opinion because the request sought guidance on conduct not governed by the Rules of Professional Conduct; it noted, however, that the attorney should be aware that he or she cannot double bill the clients.

Currency note

This opinion was issued in 1994 (Opinion 94-68, issued September 28, 1994), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.7 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which amended Rule 1.7. 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 Treat this page as historical context, not current guidance.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: Can I be the prosecutor for two different towns at once?

A: The Panel concluded yes on these facts. It opined that prosecuting for the second town does not violate the Rules because the two towns' representations are not directly adverse.

Q: Do I need the towns' consent?

A: The Panel suggested the attorney should gain each client's consent after consultation before undertaking the representation.

Q: Is the fee arrangement a problem?

A: The Panel declined to opine on the fee arrangement as conduct not governed by the Rules, but noted the attorney cannot double bill the clients.

Background and rules framework

The opinion interprets Rhode Island Rule of Professional Conduct 1.7 (conflict of interest: general rule), the analog of Model Rule 1.7. Rule 1.7(a) bars directly-adverse concurrent representation absent consent; Rule 1.7(b) bars materially-limited representation absent consent. The Panel found the two municipal prosecutor roles were not directly adverse and recommended consent, while treating the billing structure as outside the Rules except for the bar on double billing.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / RI RPC 1.7(a), (b) (conflict of interest: general rule; directly-adverse and material-limitation conflicts)

See also

• RI EAP Opinion 94-48: lawyer and police officer serving as a municipal prosecutor under Rule 1.7
• RI EAP Opinion 94-58: lawyer serving as a bankruptcy trustee 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%2094-68.pdf

Original opinion text

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

ETHICS ADVISORY PANEL
OPINION #94-68 REQUEST #539
Issued September 28, 1994

The inquiring attorney is currently an assistant solicitor for Town A whose job entails prosecuting misdemeanors for the town's police department. Town A is billed on an hourly basis. The inquiring attorney would like to apply for an advertised position with Town B regarding the same prosecutorial role as described above with Town A. Town B would bill a flat amount per year and the prosecutions for both towns are scheduled for the same day. The attorney asks whether prosecuting for both towns poses any conflict and whether the fee arrangements would violate any ethical rules.

Rule 1.7 entitled "Conflict of Interest: General Rule" states that:

(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.

(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.

The Panel believes that prosecuting cases for Town B will not violate the Rules of Professional Conduct. The representation of Town A would not be directly adverse to Town B therefore the inquiring attorney can represent Town B as a special prosecutor for the police department. The Panel suggests that the attorney should gain each client's consent after consultation before undergoing the representation.

With regard to the fee arrangement, the Panel declines to render an opinion because the request seeks an opinion concerning conduct not governed by the Rules of Professional Conduct, however the attorney should be aware that he/she cannot double bill the clients.