As a former city solicitor, can I sue that city for a former employee on a matter I never handled? And can I represent a different city while my of-counsel affiliate is that city's solicitor and I have clients suing that city?

Plain-English summary

The inquiring attorney presented two situations. In the first, the attorney was the former solicitor for City A, and a former city employee asked the attorney to represent him in a claim against City A over retirement benefits. The attorney had not been involved in that matter as solicitor, had acquired no pertinent confidential information, and the case would be a civil action in superior court not requiring appearances before City A or its agencies. In the second, the attorney represented clients adverse to City B, in a pending lawsuit and in a matter before City B's zoning board, and an attorney who was "of counsel" to the inquiring attorney (and listed as such on the letterhead) was later retained as City B's solicitor; the two proposed that the inquiring attorney would represent City B in its civil litigation while the solicitor obtained other counsel for the two matters where the inquiring attorney opposed the city.

On the first situation, the panel concluded there was no conflict. Rule 1.11(a) bars a former government lawyer from representing a private client in a matter in which the lawyer participated as a public officer, but the attorney had not participated in the employee's retirement-benefits matter as solicitor. Rule 1.9 did not bar the representation because the employee's matter was not the same or substantially related to matters the attorney handled as solicitor, subject to the Rule 1.9(b) bar on using City A's information to its disadvantage.

On the second situation, the panel concluded the attorney could not simultaneously represent City B and clients directly adverse to City B. Rule 1.7(a) creates a per se bar on concurrent representation of clients whose interests directly conflict, even on unrelated matters, and the attorney could not reasonably believe the representation of City B would not adversely affect the relationship with the current clients, so consent could not cure it. The "of counsel" relationship with City B's solicitor could constitute an affiliation triggering imputed disqualification under Rule 1.10(a), running in both directions. So long as an attorney affiliated with the inquirer's firm was the city solicitor, the inquirer could not represent clients directly adverse to City B. The panel limited its guidance to the Rules and did not address the State Ethics Code.

Currency note

This opinion was issued in April 1997, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.11, 1.9, 1.7, and 1.10 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. 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 a former government lawyer take a case against the former government client?

A: The opinion concluded yes, where the lawyer did not participate in that matter as a public officer under Rule 1.11(a) and the matter is not substantially related to the prior government work under Rule 1.9.

Q: Can a lawyer represent a city while also representing clients suing that city?

A: No. The opinion held that Rule 1.7(a) imposes a per se bar on concurrent representation of directly adverse clients, and here consent could not cure the conflict.

Q: How does an "of counsel" relationship affect the conflict?

A: The opinion concluded that the of-counsel affiliation with City B's solicitor could trigger imputed disqualification under Rule 1.10(a) in both directions, so the inquirer could not keep clients directly adverse to City B while the affiliate served as solicitor.

Background and rules framework

The opinion applied Rhode Island Rules of Professional Conduct 1.11(a), 1.9, 1.7(a), and 1.10(a). Rule 1.11(a) restricts successive government and private employment; Rule 1.9 governs former-client conflicts; Rule 1.7(a) bars concurrent representation directly adverse to another client absent a reasonable belief of no adverse effect and consent; and Rule 1.10(a) imputes disqualification among lawyers associated in a firm. The panel relied on Hazard and Hodes for the per se character of the Rule 1.7(a) bar and on the Annotated Model Rules and a Georgia opinion for the of-counsel imputation.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.11 / RI RPC 1.11(a) (successive government and private employment)
• Model Rule 1.9 / RI RPC 1.9 (conflict of interest: former client)
• Model Rule 1.7 / RI RPC 1.7(a) (concurrent conflict; per se bar on directly adverse representation)
• Model Rule 1.10 / RI RPC 1.10(a) (imputed disqualification)

Other opinions cited:

• RI EAP Op. 90-36 (1990): interests adverse to a municipal client
• Formal Advisory Op. Bd. of State Bar of Georgia, Op. 93-1: of-counsel vicarious disqualification runs both ways

See also

• RI EAP Op. 99-04: A former prosecutor barred from a parole hearing
• RI EAP Op. 99-09: An of-counsel affiliation is not a firm for imputation
• RI EAP Op. 97-03: A firm on both sides must withdraw

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%2097-06.pdf

Original opinion text

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

Final

                        RHODE ISLAND SUPREME COURT
                           ETHICS ADVISORY PANEL
                         Opinion No. 97-06, Request No. 705
                               Issued April 10, 1997

Facts:

The inquiring attorney has asked the Panel for advice on the proper course of conduct he/she

must take under the Rules of Professional Conduct in two situations.

 In the first situation, the inquiring attorney is the former solicitor for City A. A former em-

ployee of the city has asked the inquiring attorney to represent him/her in a claim against City A
concerning retirement benefits. The inquiring attorney states that he/she was not involved in this
matter as the city's solicitor. He/she further indicates that there was no confidential information
acquired during his/her representation of City A that would be pertinent to the employee's case.
The matter will be filed as a civil action in superior court, and does not require the inquiring at-
torney to appear before City A or its agencies on behalf of the employee.

 In the second situation, the inquiring attorney represents a client against City B in a pending

lawsuit, and represents another client in a matter before City B's zoning board. An attorney who
is "of counsel" to the inquiring attorney and whose name appears as such on the inquiring attor-
ney's letterhead, was subsequently retained by City B as its solicitor. The two attorneys also
have separate law practices in the same office building. The attorneys propose an arrangement
whereby the inquiring attorney will represent City B in the city's civil litigation. The solicitor
has retained other counsel to represent City B in the two matters in which the inquiring attorney
is an advocate against the city.

Issues Presented:

 (1) Does the inquiring attorney have a conflict of interest in representing the former em-

ployee against City A in the superior court action? (2) May the inquiring attorney represent City
B at the same time he/she represents clients whose interests are adverse to City B?

Opinion:

 (1) The inquiring attorney may represent the employee as there is no conflict of interest un-

der the Rules of Professional Conduct which precludes the inquiring attorney from representing
the employee against the attorney's former client City A.
(2) The inquiring attorney may not simultaneously represent City B and clients whose in-
terests are adverse to City B.
Final
Op. No. 97-06
Page 2

Reasoning:

  Situation I: Rule 1.11(a) entitled "Successive Government and Private Employment" con-

tains a broad prohibition that bars former government lawyers from representing clients in mat-
ters related to their governmental service. It provides:

            (a) Except as law may otherwise expressly permit, a lawyer shall
            not represent a private client in connection with a matter in which
            the lawyer participated as a public officer or employee.

 Rule 1.9 is also pertinent to this inquiry because the inquiring attorney's prospective client

has interests which are directly adverse to the attorney's former client, City A. Rule 1.9 states:

   A lawyer who has formerly represented a client in a matter shall not thereafter:
         (a) represent another person in the same or a substantially related
         matter in which that person's interests are materially adverse to the
         interests of the former client unless the former client consents after
         consultation; or (b) use information relating to the representation to
         the disadvantage of the former client except as Rule 1.6 or Rule 3.3
         would permit or require with respect to a client or when the infor-
         mation has become generally known.

 The Panel concludes that the inquiring attorney is not prohibited by Rule 1.11 from repre-

senting the employee in a superior court action because the inquiring attorney did not participate
in matters relating to the employee retirement benefits while he was City A's solicitor. The Panel
further concludes that there is no conflict of interest under Rule 1.9, as the matter in which the
inquiring attorney will represent the employee against City A is not the same or substantially re-
lated to matters in which he/she represented City A as its solicitor. The attorney may not use in-
formation relating to the representation of City A to its disadvantage. See Rule 1.9(b).

 Situation II: It is the Panel's opinion that the inquiring attorney is precluded under Rule

1.7(a) from representing City B at the same time that he/she represents clients whose positions
are directly adverse to the municipality. Even if the matters are wholly unrelated, there is a clear
case of direct conflict where clients oppose each other in litigation, and Rule 1.7(a) applies. See
Hazard and Hodes, The Law of Lawyering, at 243 (2d ed. 1994 Supp.). Rule 1.7(a) states:
Final
Op. No. 97-06
Page 3

        (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 ad-
        versely affect the relationship with the other client; and

            (2) each client consents after consultation.

 The interests of the inquiring attorney's current clients in the pending lawsuit and in the zon-

ing matter are adverse to City B. See R.I. Sup. Ct. Ethics Advisory Panel Op. 90-36 (1990). In
commenting on the practical effect of Rule 1.7(a), Hazard and Hodes note that the rule contem-
plates a per se ban on concurrent representation of clients whose interests are in direct conflict.
See Hazard and Hodes, at 236.3. The Panel is of the opinion that the inquiring attorney could
not reasonably believe that his/her representation of City B would not adversely affect the rela-
tionship with his/her current clients who have interests directly adverse to those of City B. Ac-
cordingly, client consent will not resolve the conflict.

 The "of counsel" relationship between the inquiring attorney and the solicitor for City B can

constitute an affiliation sufficient to trigger application of imputed disqualification under Rule
1.10(a) See Annotated Model Rules of Professional Conduct, at 168 (3rd ed. 1996). Moreover,
the vicarious disqualification runs in both directions. See Formal Advisory Op. Bd. of State Bar
of Georgia, Op. 93-1. Rule 1.10(a) states:

        (a) While lawyers are associated in a firm, none of them shall know-
        ingly 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.

 Under the present circumstances, there is an impermissible conflict of interest under Rule

1.7(a) and Rule 1.10(a) in that the inquiring attorney represents clients whose interests are di-
rectly adverse to City B, at the same time that an attorney affiliated with the inquirer's firm
serves as the city's solicitor. So long as an attorney affiliated with the inquirer's firm is the city
solicitor, the inquirer may not represent clients whose interests are directly adverse to City B.

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 or any other rules, regulations, or laws that
may have bearing on the issue raised by this inquiry.