I'm a solo lawyer affiliated 'of counsel' with another attorney who also works as a business broker and refers his brokerage clients to me. Are his conflicts imputed to me so that I can't represent those clients?

Plain-English summary

The inquiring attorney (Attorney A) ran a sole law practice and was affiliated "of counsel" with Attorney B "as needed." The two kept separate offices in different municipalities and had no access to each other's client files. Attorney B also worked as a broker of professional practices and businesses; when acting as a broker he refrained from doing the related legal work and instead referred the business clients to Attorney A. The two did not share the legal fees. Attorney A asked whether the of-counsel affiliation precluded him from doing legal work for Attorney B's business clients.

The panel concluded it did not. Attorney B had conflicts of interest under the Rules (citing prior opinions holding that an attorney who is also an insurance broker or a real estate broker may not provide related legal services to the same customers). But those conflicts would be imputed to Attorney A only if the two lawyers were "associated in a firm" under Rule 1.10(a). Whether lawyers constitute a firm, the panel explained, depends on the specific facts, including any formal agreement between them and whether they have mutual access to client information. Because these two maintained separate offices, separate practices, and no access to each other's files, the panel concluded they were not a firm, so Attorney B's conflicts were not imputed to Attorney A.

The panel added that Attorney A still had to independently determine, under Rule 1.7(b), whether his affiliation with Attorney B would materially limit the representation. If so, he could represent a business client of Attorney B only if he reasonably believed the representation would not be adversely affected and obtained the client's consent after consultation.

Currency note

This opinion was issued in May 1999, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 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 Treat this page as historical context, not current guidance.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: Does an of-counsel label by itself make two lawyers a single firm for conflicts purposes?

A: No. The opinion stated that whether two or more lawyers constitute a firm under Rule 1.10 depends on the specific facts, not the label; it pointed to the terms of any formal agreement and whether the lawyers have mutual access to client information as the relevant factors.

Q: Why were Attorney B's conflicts not imputed to Attorney A?

A: Because the panel concluded the two were not a firm. They kept separate offices in different municipalities, ran separate law practices, and had no access to each other's client files, so Rule 1.10(a)'s imputation did not apply.

Q: If there is no imputation, is Attorney A free of any conflicts analysis?

A: No. The opinion directed Attorney A to independently consider, under Rule 1.7(b), whether the affiliation with Attorney B would materially limit the representation, and if so to proceed only with a reasonable belief the representation would not be adversely affected and the client's consent after consultation.

Background and rules framework

The opinion applied Rhode Island Rules of Professional Conduct 1.10 (Model Rule 1.10) and 1.7 (Model Rule 1.7) as originally adopted. Rule 1.10(a) provided that while lawyers are associated in a firm, none of them may knowingly represent a client when any one practicing alone would be barred by Rules 1.7, 1.8(c), 1.9, or 2.2. The opinion relied on the Comment to Rule 1.10, which makes whether lawyers form a "firm" a fact question turning on any formal agreement and mutual access to client information. Rule 1.7(b) bars a representation that may be materially limited by the lawyer's responsibilities to another client or third person, or by the lawyer's own interests, absent a reasonable belief of no adverse effect and client consent after consultation.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.10 / RI RPC 1.10(a) (imputed disqualification; definition of "firm" in the Comment)
• Model Rule 1.7 / RI RPC 1.7(b) (material-limitation conflict)

Other opinions cited:

• RI EAP Op. 96-26 (attorney-insurance broker may not provide estate legal services to insurance customers): cited for Attorney B's underlying conflict
• RI EAP Op. 96-29 (attorney/real estate broker may not provide legal services to a party he brokers for): cited for the same point
• ABA Formal Op. 90-357 (1990) (meaning of the "of counsel" designation): cited in a footnote

See also

• RI EAP Op. 99-07: Child-support agency conflicts and imputation
• RI EAP Op. 99-12: Former-client conflict imputed to the new firm
• ABA Formal Op. 90-357: Use of the designation "of counsel"

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%2099-09.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. 99-09, Request No. 778
                                   Issued May 13, 1999

Facts:

     The inquiring attorney, Attorney A, has a sole law practice. He/she also is affiliated with

Attorney B on an "of counsel" basis as needed. The attorneys maintain separate offices in different
municipalities, and do not have access to each other's client files.
Attorney B simultaneously is a broker of professional practices and businesses. When acting in
his/her capacity as a broker, Attorney B refrains from performing related legal services and refers
business clients to Attorney A. The attorneys do not share the legal fees.

Issue Presented:

   The inquiring attorney asks whether he/she is precluded from performing legal services for

Attorney B's business clients as a result of the "of counsel" affiliation.

Opinion:

    Attorney B's conflicts of interest are not imputed to Attorney A under these facts and therefore,

the inquiring attorney is not precluded from providing legal services for Attorney B's business clients.

Reasoning:

    Attorney B has conflicts of interest under the Rules of Professional Conduct which would

preclude him/her from providing related legal services to his/her business clients. See R.I. Sup. Ct.
Ethics Advisory Panel Op. 96-26 (attorney-insurance broker may not sell life, disability or health
insurance to estate planning law clients and may not provide estate legal services to insurance
customers); R.I. Sup. Ct. Ethics Advisory Panel Op. 96-29 (attorney/real estate broker may not
provide legal services to seller or buyer for whom he/she serves as real estate broker.)

     Rule 1.10 entitled "Imputed Disqualification: General Rule" provides in pertinent part:

             (a) While lawyers are associated in a firm, none of them shall
             knowingly 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.

Final 99-09
Page 2

     Whether two or more lawyers constitute a firm for purposes of Rule 1.10 depends on the

specific facts. See Comment to Rule 1.10. The terms of any formal agreement between the attorneys
are relevant in determining whether they are a firm, as is the fact that they have mutual access to client
information. Id. Although the inquiring attorney states that he/she is affiliated with Attorney B on an "of
counsel" basis as needed, the facts disclose that the two attorneys maintain separate offices, have
separate law practices, and do not have access to each other's client files.1 Based on the facts as
presented, the Panel is of the opinion that the conflicts of interest of Attorney B are not imputed to
Attorney A, and that Attorney A may represent the business clients of Attorney B. Before so doing,
Attorney A must independently consider whether his/her affiliation with Attorney B would be a material
limitation on the representation pursuant to Rule 1.7(b) which states:

    Rule 1.7. Conflict of Interest: General Rule. -

            (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.

If the representation is materially limited by the affiliation, Attorney A may represent a business client of
Attorney B provided he/she reasonably believes the representation will not be affected and provided
also that he/she obtains the client's consent after consultation.

1
The designation "of counsel" generally applies to a close, regular, personal relationship that is neither
that of a partner nor an associate, such as a part-time practitioner, a retired partner who remains
associated with a firm, a probationary partner-to-be, or the permanent status in between partner and
associate but having the quality of tenure. See ABA Standing Comm. On Ethics and Professional
Responsibility, Formal Op. 90-357 (1990).
Final 99-09
Page 3

      Accordingly, the Panel concludes that Attorney A is not precluded by Rule 1.10(a) from

representing business clients of Attorney B, but must determine whether he/she otherwise has a conflict
of interest pursuant to Rule 1.7(b) before undertaking the representation.