I'm a state agency lawyer suing a city, and a colleague at my agency sits on that city's council. Do I have a conflict of interest?

Plain-English summary

The inquiring attorney was a lawyer at a state agency handling litigation the State had filed against a city over an agreement concerning a parcel of real estate. Another lawyer at the same agency served on that city's council and had been named as a party, in his capacity as councilperson, in a separate lawsuit brought by a real estate company against the city. The State's interest in that separate suit was common with the real estate company and against the city defendants. The colleague had not been on the council when the disputed agreement was made, had represented that he would not participate as a councilmember if the matters came before the council, and had no responsibilities for the cases, which were assigned solely to the inquiring attorney.

The panel concluded that the colleague's position on the city council could constitute a limiting interest within the meaning of Rule 1.7(b), but that the rule permits waiver. The panel concluded the inquiring attorney could properly represent the State provided he reasonably believed the representation would not be adversely affected and obtained the consent of the appropriate State representative after consultation. On the facts presented, the panel stated, such a belief did not appear to be unreasonable. The panel noted its guidance was limited to the Rules and did not extend to the State Ethics Code or other laws.

Currency note

This opinion was issued in June 1999, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.7(b) 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 Treat this page as historical context, not current guidance.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: Was the colleague's council seat a conflict for the agency lawyer?

A: Potentially. The opinion stated the other lawyer's position on the city council could constitute a limiting interest within the meaning of Rule 1.7(b), but that the rule permits waiver.

Q: Could the agency lawyer still represent the State?

A: Yes, on these facts. The opinion concluded the lawyer could represent the State provided he reasonably believed the representation would not be adversely affected and obtained the consent of the appropriate State representative after consultation.

Q: Did the panel find the lawyer's belief reasonable?

A: The opinion stated that, based on the facts presented, a belief that the representation would not be adversely affected did not appear to be unreasonable, noting the colleague was not on the council when the agreement was made, would abstain, and had no role in the cases.

Background and rules framework

The opinion applied Rhode Island Rule of Professional Conduct 1.7(b) (Model Rule 1.7(b)) as originally adopted, which bars a lawyer from representing a client if the representation 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.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7(b) / RI RPC 1.7(b) (conflict of interest: representation materially limited by responsibilities to others or the lawyer's own interests)

See also

• RI EAP Op. 2023-4: Simultaneous town and agency representation, no conflict
• RI EAP Op. 2013-04: May a city council member represent private clients before the city
• ABA Formal Op. 97-405: Conflicts in representing government entities

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%2099-13.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. 99-13, Request No. 772
Issued June 10, 1999

Facts:

    The inquiring attorney is an attorney at a state agency. Another lawyer at the agency is a

member of the city council of City X. During litigation between the State and a real estate company
several years ago, the State entered into an agreement with City X, the mayor of City X, and the city
council (collectively, the City) regarding a parcel of real estate (Parcel Y) located in City X. At the
same time, the State agreed to convey, and did convey, Parcel Y to the real estate company. The
agreement between the State and the City is presently the subject of litigation filed by the inquiring
attorney on behalf of the State against the City.

    The real estate company has filed a separate lawsuit against City X, its mayor, and the city

council, including the other agency lawyer who is named as a party in his/her capacity as councilperson.
Parcel Y is the subject of this lawsuit. The inquiring attorney states that the State has a common interest
with the real estate company and against the named defendants in this separate suit.

    The inquiring attorney states that the other agency lawyer was not a member of the city council

when City X and the State entered into the agreement that is now in dispute. He/she also states that the
other lawyer has represented that he/she will not participate as a councilmember should the
aformentioned matters be considered by the council. The inquiring attorney further states that he/she is
the only attorney in the agency who is assigned to the matters, and that the other agency lawyer has no
responsibilities for any aspect of these cases.

Issue Presented:

     The inquiring attorney asks whether he/she has a conflict of interest in representing the State

against the City.

Opinion:

    The inquiring attorney may represent the State against the City provided that pursuant to Rule

1.7(b) he/she believes that the representation of the State will not be adversely affected and he/she
obtains consent from the appropriate representative of the State after consultation.

Reasoning:

     Rule 1.7, entitled "Conflict of Interest: General Rule" provides in pertinent part:

Final 99-13
Page 2

            (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 is of the opinion that the other lawyer's position on the city council could constitute a

limiting interest within the meaning of Rule 1.7(b). The rule permits waiver, however. The Panel
concludes that the inquiring attorney may properly represent the State provided that he/she reasonably
believes that the representation will not be adversely affected
and that he/she obtains the consent of the appropriate representative of the State after consultation. The
Panel is of the opinion that based on the facts as presented, such a belief does not appear to be
unreasonable.

    The Panel's guidance is restricted to interpretations of the Rules and does not extend to issues

of the State Ethics Code or any other rules, regulations or laws that may have a bearing on the issues
raised by this inquiry.