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As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

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Rhode Island Legal Ethics

1.7   Conflict of Interest: General Rule

1.7:100   Comparative Analysis of Rhode Island Rule

Primary Rhode Island References: RI Rule 1.7
Background References: ABA Model Rule 1.7, Other Jurisdictions
Commentary:

1.7:101      Model Rule Comparison

Rhode Island has adopted the ABA Model Rule version of RI Rule 1.7

1.7:102      Model Code Comparison

Rhode Island has not adopted a Model Code comparison. See MR 1.7 and other jurisdictions.

1.7:200   Conflicts of Interest in General

Primary Rhode Island References: RI Rule 1.7
Background References: ABA Model Rule 1.7, Other Jurisdictions
Commentary: ABA/BNA § 55:101, ALI-LGL §§ 121-124, Wolfram §§ 7.1-7.6

The attorney's belief under RI Rule 1.7 must be "reasonable". Under RI Rule 1.7 the attorney's "reasonable belief" was the standard used in determining whether the representation of one client will adversely affect the relationship with another client. RI Eth. Op. 95-32 (1995). In a matter in which an attorney represented a woman in an uncontested divorce and the attorney asked whether he could assist the husband in implementing their agreement, the Ethics Panel opined that in the situation, the wife's interest being directly adverse to the husband's interest, the attorney could not reasonably believe that the representation of the husband will not adversely affect the attorney-client relationship with the wife. Therefore, the attorney could not assist the husband in the proceeding. RI Eth. Op. 96-22 (1996). The reasonable belief standard was again stated in RI Eth. Op. 96-23 (1996). In a case where parties are in direct conflict with each other, it has been held that it is not reasonable to believe that the representation of one client will not adversely affect the representation of the other. RI Eth. Op. 97-21 (1997).

When consent will satisfy a conflict, the consent may be oral. RI Eth. Op. 89-19 (1989). When a lawyer believes representation of a client will not be adversely affected, any impropriety (conflict) can be cured by obtaining client consent. RI Eth. Op. 89-22 (1989). In order for an attorney to fulfill the requirement of RI Rule 1.7(b)(2), the attorney must obtain consent from the client after consultation. Client consent must be informed consent and informed consent requires full disclosure. Full disclosure is not a set of conclusory statements but a recitation of specific details and an explanation of foreseeable consequences. RI Eth. Op. 90-16 (1990), citing DeBott v. Parker, 560 A.2d 1323, 1329 (1988). See also RI Eth. Op. 90-24 (1990).

Under RI Rule 1.7(a), when a client is directly adverse to another client, the condition imposed by the rule that a lawyer shall not represent a client unless the lawyer reasonably believes the representation will not adversely affect the relationship with the other client can be tantamount to a virtual per se ban on simultaneous representation of adverse interests, relying on, Hodes and Hazard, The Law of Lawyering. RI Eth. Op. 90-36 (1990).

An attorney, co-owner of a close corporation with a non-client, has been asked by a client to undertake an action adverse to the co-owner's unrelated business venture. RI Eth. Op. 92-37 (1992). Relying on the Comment to RI Rule 1.7(b), the Ethics Panel cautioned the attorney as to potential problems. If he/she undertakes such representation, the Ethics Panel is unable to conclude that the clients' informed consent would be sufficient to avoid a conflict of interest. In so holding, the Ethics Panel set down the following guidelines: "Conflicts of interest in contexts other than litigation sometimes may be difficult to assess. Relevant factors in determining whether there is potential for adverse effect include the duration and intimacy of the lawyer's relationship with the third-party, the functions being performed by the lawyer, the likelihood that actual conflict will arise and the likely prejudice to the client from the conflict if it does arise. The question is often one of proximity and degree." RI Eth. Op. 92-37 (1992).

An attorney who represented several members of a town council in their individual capacities was asked to represent a client before the same town council. He/she was advised that three (3) members of the council would recuse themselves because of their relationship with the attorney giving a minimum of four (4) council members to hear the case when four (4) affirmative votes were needed to act upon the client's request. The Ethics Panel, citing RI Rule 1.7(b), stated, "In this case, the lawyer's own interest is his personal relationship with the town council. There exists a conflict of interest because the attorney is unable to effectively represent the client in the hearing. The limited number of council people qualified to vote is materially limiting the client's ability to be granted the license. Given the recusals, if the attorney reasonably believes that his client's interest are adversely affected, this is not a conflict that the client can waive." RI Eth. Op. 92-86 (1993). In a matter in which the attorney represents a client in a domestic matter and also represents the adverse counsel in an unrelated matter, it was held that the attorney may represent adverse counsel if the attorney reasonably believes that the representation of the client in the domestic matter will not be adversely affected and the attorney receives informed consent from both clients." RI Eth. Op. 92-66 (1992). When an attorney in a law firm is an assistant town solicitor and the law firm is asked to represent clients in civil actions against the town, the Ethics Panel opined that " . . . if the attorney reasonably believes that the relationship of one client will not adversely affect the relationship with the other client and the attorney acquires each client's consent, then the law firm may represent plaintiffs in the civil cases. RI Eth. Op. 95-32 (1995). If the belief is not reasonable and/or the clients do not consent to the representation, then the law firm may not represent the plaintiffs in the civil matters." The Ethics Panel went on to state that the law firm could represent private clients before the town council zoning board or planning board because a conflict of interest was held not to exist under the rule in those cases. RI Eth. Op. 95-32 (1995).

Differentiating between the two (2) parts of RI Rule 1.7, the Ethics Panel stated, "RI Rule 1.7(a) applies when the representation of a client is directly adverse to another client. RI Rule 1.7(b) applies when representation of one client would be materially limited by other interests or responsibilities of the attorney. In this situation [attorney represented a client in a divorce proceeding against her spouse, represented another client in a divorce proceeding against his spouse, the two (2) clients are romantically involved and each may be witnesses in each others divorce proceeding], it does not appear that the representation of the two (2) clients would be directly adverse. If, however, the attorney's representation of one (1) client may be materially limited by his/her responsibilities to the other client, the inquiring attorney may represent both clients simultaneously but only if the attorney reasonably believes the representation will not adversely affect the relationship with the other client and each client consents after consultation. RI Eth. Op. 95-54 (1995).

An attorney may not simultaneously represent a city as its city solicitor and clients whose interests are adverse to the city, even if the matters are wholly unrelated. There is a clear case of direct conflict where clients oppose each other in litigation. When such conflicts exists, RI Rule 1.7(a) contemplates a per se ban on the concurrent representation of such clients, since the attorney could not reasonably believe that representation of the city would not adversely affect the relationship with his/her current clients who have interests directly adverse to those of the city. Therefore, client consents will not resolve the conflict. RI Eth. Op. 97-06 (1997). In determining that an attorney may not represent both the husband and wife in connection with the husband's personal injury claim when the parties are seeking a divorce, even though they have asked the attorney to do so and waived any conflict that exists, the Ethics Panel opined that since the spouse has an interest in the husband's personal injury recovery which is adverse to the husband's interest and the allocation of loss wages, conflict arises in the dual representation and in the face of such a direct conflict it is not reasonable to believe that the representation of one spouse will not adversely affect the representation of the other. Waivers cannot cure this type of conflict. RI Eth. Op. 97-21 (1997).

The Rules of Professional Conduct do not prohibit an attorney from representing clients before the town council or before the planning and zoning boards if he or she is elected town moderator. RI Eth. Op. 2002-06.

1.7:210      Basic Prohibition of Conflict of Interest

In deciding a conflict of interest situation, reference was made to the preamble of the Rhode Island Rules of Professional Conduct stating that "[a] lawyer should avoid even the appearance of professional impropriety." RI Eth. Op. 89-1 (1989). In reviewing the practical effect of RI Rule 1.7(a), prohibiting representation of a client if the representation of that client is "directly adverse" to another client, the Rhode Island Ethics Advisory Panel quoted Geoffrey Hazard in The Law of Lawyering, in noting that in such a case the requirement of "reasonable belief" is tantamount to a virtual per se ban on simultaneous representations under those circumstances. RI Eth. Op. 90-14.

Although the Rhode Island Rule requires "consent after consultation" in order to waive a conflict of interest, the Rhode Island Ethics Advisory Panel has interpreted that requirement to require full disclosure. RI Eth. Op. 90-16 (1990). Subsequent Rhode Island Ethics Advisory Panel Opinions have reiterated that standard. In RI Eth. Op. 90-32 (1990), the Ethics Panel stated, "RI Rule 1.7 addresses the situation in which an attorney is asked to represent a client whose interests are directly adverse to another present client of the attorney's." As stated in the Comments to RI Rule 1.7, "loyalty to a client is impaired when a lawyer can not consider, recommend or carry out an appropriate course of action for the client because of the lawyer's other responsibilities or interests. The conflict in effect forecloses alternatives that would otherwise be available to the client. Where an attorney has withdrawn as counsel for an agency in order to represent the former director of the agency in an action against the agency, the appropriate inquiry is Rule 1.7, which prohibits an attorney from representing a client if that representation would be adverse to the interests of another client. RI Eth. Op. 2000-1 (2000).

A possible conflict does not itself preclude the representation. The critical questions are the likelihood that a conflict will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client." The foregoing was quoted with approval in RI Eth. Op. 92-86 (1993). A lawyer should not represent a client "unless it can be performed competently, promptly, without proper conflict of interest and to completion". RI Eth. Op. 94-22 (1994). An attorney shall not represent a client if the representation of that client will be directly adverse to another client. RI Eth. Op. 94-45 (1994). An attorney cannot offer legal training to the staff of a school department if the attorney also represents another party in proceedings against that school department. RI Eth. Op. 94-47 (1994).

Under the conflict rules two clients must be either directly adverse or materially adverse to one another. RI Eth. Op. 95-48 (1995). Economic competitors, without more, do not to create a conflict. RI Eth. Op. 95-52 (1995). RI Rule 1.7(a) applies when the representation of a client is directly adverse to another client. RI Rule 1.7(b) applies when representation of one client would be materially limited by other interests or responsibilities of the attorney. RI Eth. Op. 95-54 (1995). In a situation in which no conflict of interest was found to exist but since there was, according to the Ethics Panel, a "serious appearance of impropriety", the Ethics Panel advised the attorney to give "serious consideration to withdrawing from the matter". RI Eth. Op. 97-02. In opining that an attorney may not simultaneously represent a city and clients who have claims against the city, it was held that a conflict existed even if the matters are wholly unrelated. In such a case, the Ethics Panel was of the opinion that the attorney could not reasonably believe that representation of the city would not adversely affect the relationship with current clients who have interests directly adverse to those of the city. RI Eth. Op. 97-06 (1997). The Rules of Professional Conduct impose on lawyers an ethical obligation of loyalty to clients. The rules that address conflict of interest protect clients and assure an attorney's loyalty. RI Eth. Op. 98-07 (1998).

1.7:220      Material Adverse Effect on Representation

RI Rule 1.7(b) generally prohibits an attorney from undertaking representation of a client when the representation may be "materially limited ... by the lawyer's own interest..." RI Eth. Op. 92-30 (1992). Despite the absence of an attorney-client relationship, a violation of RI Rule 1.7(b) may arise if the attorney's representation of a client may be "materially limited by the lawyer's responsibility to another client or to a third person, or by the lawyer's own interest." RI Eth. Op. 93-24 (1993). Examining one's own client and conducting discovery on behalf of another client will present a material limitation on the lawyer's representation and the attorney should withdraw. RI Eth. Op. 97-03 (1997). The Office of the Public Defender considers itself to be the equivalent of a law firm for conflict of interest purposes; it may undertake multiple representation of clients in circumstances in which the representation of one client may be materially limited by the representation of another, only if the client consents after consultation. Hughes III v. State, 656 A.2d 971 (R.I. 1995).

An attorney who engages in sexual relations with his or her divorce client jeopardizes the client's rights, because the sexual conduct of the client may have significant bearing on that client's ability to secure child custody and in the determination of the distribution of marital assets. In re DiPippo, 678 A.2d 454 (R.I. 1996). "The lawyer's own interest in maintaining the sexual relationship creates an inherent conflict with the proper representation of the client." 678 A.2d at 456. See also In re Pellizzari, 726 A.2d 451 (R.I. 1999); In re DiSandro, 680 A.2d 73 (R.I. 1996).

1.7:230      Perspective for Determining Conflict of Interest

Under RI Rule 1.7(b) an attorney must "reasonably believe" that the representation of a client will not be adversely affected. RI Eth. Op. 89-2 (1989) ("Reasonably" not mentioned in this opinion.). "Reasonable belief" of the attorney is the standard used in determining whether the representation of a client will be adversely affected by simultaneous representation of another client. In such circumstances, however, irrespective of the "belief", consent from both clients should be obtained. RI Eth. Op. 92-66 (1992). If the attorney reasonably believes that the representation of a client in a domestic matter will not be adversely affected when the attorney represents the adverse counsel in an unrelated matter, the conflict of interest situation may be resolved by obtaining informed consent from both clients. RI Eth. Op. 92-66. In a matter involving RI Rule 1.7(b) and material limitation of the representation, it was opined, quoting from the Comment, that "the lawyer's own interest should not be permitted to have adverse affect on representation of a client" and "[b]ecause there is an issue of malpractice ..., it is the attorney's decision to make whether he/she's representation of the client will be 'materially limited.'" RI Eth. Op. 94-29 (1994).

In RI Eth. Op. 95-6 (1995), an attorney was appointed clerk of a municipality's Probate Court and asked whether he could practice law before the municipality's boards and agencies. The Ethics Panel questioned whether the attorney could reasonably believe that he/she could function as an effective advocate against his/her own employer as appointive authority over his/her employment.

The attorney's belief under RI Rule 1.7 must be "reasonable". Under RI Rule 1.7 the attorney's "reasonable belief" was the standard used in determining whether the representation of one client will adversely affect the relationship with another client. RI Eth. Op. 95-32 (1995). In a matter in which an attorney represented a woman in an uncontested divorce and the attorney asked whether he could assist the husband in implementing their agreement, the Ethics Panel opined that in the situation, the wife's interest being directly adverse to the husband's interest, the attorney could not reasonably believe that the representation of the husband will not adversely affect the attorney-client relationship with the wife. Therefore, the attorney could not assist the husband in the proceeding. RI Eth. Op. 96-22 (1996). The reasonable belief standard was again stated in RI Eth. Op. 96-23 (1996). In a case where parties are in direct conflict with each other, it has been held that it is not reasonable to believe that the representation of one client will not adversely affect the representation of the other. RI Eth. Op. 97-21 (1997).

An attorney who operates a real estate referral company may not provide legal services in a real estate transaction involving agents who have brokered the transaction even if the company does not receive any portion of the commissions. "The inter-relationship between the referral company and the agents and brokers presents a substantial risk that the attorney's independent professional judgment will be compromised. There is also significant risk that his/her representation of parties to a real estate transaction will be materially limited by his/her interest in the referral company or by his/her responsibilities to the company and to the associated agents and brokers. In the opinion of the Ethics Panel, there could not exist a reasonable belief that the representation would not be affected. Therefore, consent should not be solicited." RI Eth. Op. 98-08 (1998).

An attorney who is a part-time municipal court judge in a municipality which recently underwent a property revaluation and who is also a partner in a law firm may contest the property revaluation of his/her property in the municipality. Further, Rule 1.10 does not prohibit the attorney's law firm from representing property owners in the municipality in the appeals of the revaluation of their properties so long as, in compliance with Rule 1.7(b), the lawyers reasonably believe that the representation will not be adversely affected, and the clients consent after full disclosure. RI Eth. Op. 2003-03.

1.7:240      Client Consent to a Conflict of Interest; Non-Consentable Conflicts

When consent will satisfy a conflict, the consent may be oral. RI Eth. Op. 89-19 (1989). When a lawyer believes representation of a client will not be adversely affected, any impropriety (conflict) can be cured by obtaining client consent. RI Eth. Op. 89-22 (1989). In order for an attorney to fulfill the requirement of RI Rule 1.7(b)(2), the attorney must obtain consent from the client after consultation. Client consent must be informed consent and informed consent requires full disclosure. Full disclosure is not a set of conclusory statements but a recitation of specific details and an explanation of foreseeable consequences. RI Eth. Op. 90-16 (1990), citing DeBott v. Parker, 560 A.2d 1323, 1329 (1988). See also RI Eth. Op. 90-24 (1990).

Under RI Rule 1.7(a), when a client is directly adverse to another client, the condition imposed by the rule that a lawyer shall not represent a client unless the lawyer reasonably believes the representation will not adversely affect the relationship with the other client can be tantamount to a virtual per se ban on simultaneous representation of adverse interests, relying on, Hodes and Hazard, the Law of Lawyering. RI Eth. Op. 90-36 (1990).

When an attorney in a law firm is an assistant city solicitor, the law firm cannot represent any client, which has a claim against the city. The city and the claimants against the city are directly adverse to each other and under those circumstances client consents cannot resolve the conflict. RI Eth. Op. 91-45 (1991).

An attorney, co-owner of a close corporation with a non-client, has been asked by a client to undertake an action adverse to the co-owner's unrelated business venture. RI Eth. Op. 92-37 (1992). Relying on the Comment to RI Rule 1.7(b), the Ethics Panel cautioned the attorney as to potential problems. If he/she undertakes such representation, the Ethics Panel is unable to conclude that the clients' informed consent would be sufficient to avoid a conflict of interest. In so holding, the Ethics Panel set down the following guidelines: "Conflicts of interest in contexts other than litigation sometimes may be difficult to assess. Relevant factors in determining whether there is potential for adverse effect include the duration and intimacy of the lawyer's relationship with the third-party, the functions being performed by the lawyer, the likelihood that actual conflict will arise and the likely prejudice to the client from the conflict if it does arise. The question is often one of proximity and degree." RI Eth. Op. 92-37 (1992).

An attorney who represented several members of a town council in their individual capacities was asked to represent a client before the same town council. He/she was advised that three (3) members of the council would recuse themselves because of their relationship with the attorney giving a minimum of four (4) council members to hear the case when four (4) affirmative votes were needed to act upon the client's request. The Ethics Panel, citing RI Rule 1.7(b), stated, "In this case, the lawyer's own interest is his personal relationship with the town council. There exists a conflict of interest because the attorney is unable to effectively represent the client in the hearing. The limited number of council people qualified to vote is materially limiting the client's ability to be granted the license. Given the recusals, if the attorney reasonably believes that his client's interest are adversely affected, this is not a conflict that the client can waive." RI Eth. Op. 92-86 (1993). In a matter in which the attorney represents a client in a domestic matter and also represents the adverse counsel in an unrelated matter, it was held that the attorney may represent adverse counsel if the attorney reasonably believes that the representation of the client in the domestic matter will not be adversely affected and the attorney receives informed consent from both clients." RI Eth. Op. 92-66 (1992). When an attorney in a law firm is an assistant town solicitor and the law firm is asked to represent clients in civil actions against the town, the Ethics Panel opined that " . . . if the attorney reasonably believes that the relationship of one client will not adversely affect the relationship with the other client and the attorney acquires each client's consent, then the law firm may represent plaintiffs in the civil cases. RI Eth. Op. 95-32 (1995). If the belief is not reasonable and/or the clients do not consent to the representation, then the law firm may not represent the plaintiffs in the civil matters." The Ethics Panel went on to state that the law firm could represent private clients before the town council zoning board or planning board because a conflict of interest was held not to exist under the rule in those cases. RI Eth. Op. 95-32 (1995).

Differentiating between the two (2) parts of RI Rule 1.7, the Ethics Panel stated, "RI Rule 1.7(a) applies when the representation of a client is directly adverse to another client. RI Rule 1.7(b) applies when representation of one client would be materially limited by other interests or responsibilities of the attorney. In this situation [attorney represented a client in a divorce proceeding against her spouse, represented another client in a divorce proceeding against his spouse, the two (2) clients are romantically involved and each may be witnesses in each others divorce proceeding], it does not appear that the representation of the two (2) clients would be directly adverse. If, however, the attorney's representation of one (1) client may be materially limited by his/her responsibilities to the other client, the inquiring attorney may represent both clients simultaneously but only if the attorney reasonably believes the representation will not adversely affect the relationship with the other client and each client consents after consultation. RI Eth. Op. 95-54 (1995).

In RI Eth. Op. 95-56 (1995), the Ethics Panel stated that matters can be directly adverse to multiple clients of an attorney, and the attorney may continue the representation as long as the lawyer reasonably believes the representation will not adversely affect the relationship between the clients and each client consents after the consultation. When an attorney is a party in a divorce action, is retained by a client to prosecute the client's divorce, learns that the opposing counsel in the client's divorce matter is his attorney in his own divorce, the Ethics Panel concluded that if the attorney reasonably believes the representation of the client will not be adversely affected by the attorney's own interest and obtains the client's consent after disclosing the facts, the attorney may continue to represent the client. RI Eth. Op. 96-23 (1996).

An estate-planning attorney who is licensed to sell life, accident and health insurance may not sell insurance to estate planning clients and may not provide estate planning legal services to insurance customers. Although the Ethics Panel took the position that the attorney may conduct both businesses, cross selling is impermissible and under these circumstances since there could not be meaningful consent of the client. Therefore, the conflict created cannot be waived. RI Eth. Op. 96-26 (1996).

An attorney may not simultaneously represent a city as its city solicitor and clients whose interests are adverse to the city, even if the matters are wholly unrelated. There is a clear case of direct conflict where clients oppose each other in litigation. When such conflicts exists, RI Rule 1.7(a) contemplates a per se ban on the concurrent representation of such clients, since the attorney could not reasonably believe that representation of the city would not adversely affect the relationship with his/her current clients who have interests directly adverse to those of the city. Therefore, client consents will not resolve the conflict. RI Eth. Op. 97-06 (1997). In determining that an attorney may not represent both the husband and wife in connection with the husband's personal injury claim when the parties are seeking a divorce, even though they have asked the attorney to do so and waived any conflict that exists, the Ethics Panel opined that since the spouse has an interest in the husband's personal injury recovery which is adverse to the husband's interest and the allocation of loss wages, conflict arises in the dual representation and in the face of such a direct conflict it is not reasonable to believe that the representation of one spouse will not adversely affect the representation of the other. Waivers cannot cure this type of conflict. RI Eth. Op. 97-21 (1997).

An attorney may not provide legal services relating to real estate transactions in which agents or brokers related to his/her real estate referral company brokered the transaction even where the referral company waives or does not receive a share of the broker's commission. Consents will not eliminate the conflict. RI Eth. Op. 98-08 (1998).

An attorney who is a town solicitor for the town in which he or she lives may represent individuals in a civil action against the families of two juveniles whom the town is prosecuting if the solicitor's office does not represent the town in the prosecution of the juveniles, and if in accordance with Rule 1.7, both the town and the individuals consent after consultation and disclosure of all potential conflicts. Rule 1.11(a) does not present an impediment to the attorney's proposed representation since the solicitor's office has had no involvement in the case. RI Eth. Op. 2003-01.

1.7:250      Imputation of Conflict of Interest to Affiliated Lawyers [See 1.10:200]

An attorney has a conflict that may be waived when the attorney is asked to handle a malpractice claim against a physician on the staff of a hospital on which one of his partners is a member of the board. The Ethics Panel noted the provisions of RI Rule 1.10 which prohibits those associated in the firm from representing clients when anyone of them would be prohibited from doing so. In RI Eth. Op. 90-36 (1990), the Ethics Panel stated that while an attorney is an assistant city solicitor, all members of the firm are disqualified from representing a client whose position is directly adverse to the city, under RI Rule 1.10, Imputed Disqualification. See also RI Eth. Op. 95-32 (1995); RI Eth. Op. 95-59 (1996) (when an associate in a law firm is a town solicitor whose function is to prosecute criminal cases for the town, and other members of the law firm represent clients involved in domestic assault cases prosecuted by the town, the attorney-town solicitor may not prosecute such matters in view of RI Rule 1.10.). RI Rule 1.10 covers the circumstances under which members of the same firm may not represent opposing parties where any member of the firm could not individually represent that party by reason of a "conflict". RI Eth. Op. 92-70 (1993). Where an attorney could not represent a private client before the municipal zoning board on which he/she sat, it was opined that all members of the attorney's law firm are similarly disqualified pursuant to RI Rule 1.10. RI Eth. Op. 93-14 (1993). RI Rule 1.10 prohibits attorneys in the same law firm from representing a client in a matter materially adverse to the interest of any client of the law firm absent consent after consultation. RI Rule 1.10, Imputed Disqualification, prohibits a legal entity (in this case a non-profit legal services agency) from representing a client when either of the predecessor agencies would have been prohibited from doing so. RI Eth. Op. 94-77 (1995). If an attorney cannot represent a client, an associate in the firm is disqualified from "drafting the paperwork" concerning a guardianship matter. RI Eth. Op. 94-79 (1995). Under RI Rule 1.10(a), an attorney in a law firm would be prohibited from continuing to represent a client if another attorney in the law firm was prohibited from doing so because of a conflict of interest. RI Eth. Op. 97-02 (1997).

Conflicts under RI Rule 1.7(b) are imputed to other lawyers in a disqualified lawyer's firm pursuant to RI Rule 1.10(a) and the other lawyers would likewise be disqualified unless the requirements of RI Rule 1.7(b) are satisfied. RI Eth. Op. 97-13 (1997).

1.7:260      Sanctions and Remedies for Conflicts of Interest

If the interest of a client is or becomes adverse to that of a former client, the attorney cannot continue to represent the client without consent. RI Eth. Op. 93-15 (1993). In a custody matter where the attorney represents the mother who has little hope of obtaining custody, the attorney may also represent grandparents who alternatively seek custody, provided the mother consents to the representation. However, if a dispute arises in the future between the mother and the grandparents, the attorney must withdraw from representation. RI Eth. Op. 93-65 (1993). An attorney may not represent a client if the representation of that client will be directly adverse to another client and must withdraw from representing the second client under the circumstances. RI Eth. Op. 94-45 (1994). A lawyer who continued to represent a client while his small-claims suit was pending against her for unpaid legal bills violated RI Rule 1.7(b) because his representation of the client was materially limited by the lawyer's own interests. Lisi v. Pearlman, 641 A.2d 81 (R.I. 1994). For this violation, he was suspended from practice for three months.

In a situation where two non-profit legal service agencies merge, the new entity must review its caseload to identify instances where clients' interests are directly adverse. If consent is appropriate in any such case, consents must be obtained. Absent such consent, the combined entity cannot represent either party to the controversy. RI Eth. Op. 94-77 (1994).

Obtaining loan from clients, providing dual representation in other loan transactions involving clients without informing clients of potential conflicts, and obtaining security interest adverse to client was conduct warranting public censure. In re Scott, 694 A.2d 732 (R.I. 1997).

Engaging in consensual sexual relationship with divorce client warrants public censure. In re Pellizzari, 726 A.2d 451 (R.I. 1999); In re DiSandro, 680 A.2d 73 (R.I. 1996). See also In re DiPippo, 678 A.2d 454 (R.I. 1996) (engaging in sexual relationship with divorce client and certifying truth of false statements made by such client warranted three month suspension).

1.7:270      Positional Conflicts

A conflict of interest may exist by reason of a substantial discrepancy in the parties' testimony, incompatibility in positions in relation to an opposing party, or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. RI Eth. Op. 92-66 (1992).

1.7:280      Relationships to Other Rules

In a situation where the attorney represented two parties in forming a corporation who later had a dispute with respect to the operation of the corporation, the attorney could not represent one of the parties without consent. In reaching its conclusion, the Ethics Panel referred to RI Rule 2.2(c) - Lawyer as an Intermediary; RI Rule 1.13: Organization as Client; and RI Rule 1.7(b). RI Eth. Op. 93-58 (1993).

An attorney, also a licensed real estate broker, could pursue both endeavors but independently of each other. The Ethics Panel noted that Rhode Island has not adopted MR Rule 5.7, although the provisions of RI Rule 5.4(b) prohibiting a partnership with a non-lawyer could be applicable. Reference was also made to RI Rule 1.8(a) and RI Rule 1.7(b), emphasizing impairment of the lawyer's independent professional judgment because of the lawyer's own interests. RI Eth. Op. 93-59 (1993).

An estate-planning attorney licensed to sell insurance may not sell insurance through his/her legal clients and may not perform legal services for his/her insurance customers. Reference is made to RI Rule 1.8, which prohibits a lawyer from entering into a business transaction with a client unless there is compliance with RI Rule 1.7(b) and RI Rule 1.8. The Ethics Panel noted, however, that in this case there could not be meaningful consent because the opportunity for overreaching by the lawyer was substantial. Therefore, the conflict could not be waived. RI Eth. Op. 96-26 (1996).

RI Rule 1.11(a): Successive Government and Private Employment limits representation of a client in connection with the matter in which the lawyer participated as a public officer or employee. This disqualification is imputed to the firm. RI Eth. Op. 95-59 (1996).

RI Rule 3.7: Lawyer as Witness seeks to avoid the perception that the lawyer as a witness is distorting the truth to assist the client. The rationale of the rule does not apply to pro se lawyer litigants. The rule also does not permit a lawyer from being a witness for another lawyer, in the same firm or otherwise, if he/she is the client's advocate at a trial. RI Eth. Op. 94-75 (1994).

RI Rule 3.7(b) permits an attorney to represent the executor of the estate in probate proceedings in which another lawyer in his/her law firm is likely to be called as a witness provided no other conflict exists under RI Rule 1.7 or RI Rule 1.9. RI Eth. Op. 97-11 (1997).

An attorney who represents a corporation may not represent one shareholder in the dissolution of the corporation where other shareholders will oppose the dissolution, because there would be a conflict of interest pursuant to RI Rule 1.7. RI Eth. Op. 2003-02.

1.7:300   Conflict of Interest Among Current Clients (Concurrent Conflicts)

Primary Rhode Island References: RI Rule 1.7
Background References: ABA Model Rule 1.7, Other Jurisdictions
Commentary: ABA/BNA §§ 51:101, 51:301, ALI-LGL §§ 128-131, Wolfram §§ 7.1-7.3

1.7:310      Representing Parties with Conflicting Interests in Civil Litigation

An attorney may not represent co-defendants in a civil lawsuit when the attorney discovers evidence, which would tend to exculpate one and shift the liability to the other because the interests of the clients are so materially adverse. In this situation, clients could not waive the conflict. RI Eth. Op. 91-23 (1991). An attorney may not represent two clients with joint claims against a party who had an insurance policy with limits exceeding the aggregate of the two claims. Order of settlement of the cases could prejudice the parties and a conflict would exist under RI Rule 1.7. RI Eth. Op. 93-15 (1993).

A city solicitor who prosecuted two employees of the city on matters unrelated to a current negligence lawsuit may not defend those employees in the negligence case without their consent since the city solicitor had a lawyer-client relationship with the employees who had been prosecuted and has an interest directly adverse to the municipality. [Ed: If the prosecution has already taken place, it would be questionable whether this situation constituted a conflict.] RI Eth. Op. 93-83 (1993). Attorney who represented two state agencies did not represent the state and was not disqualified from representing private clients in civil action against another state agency, where the agencies that attorney represented had no relationship to agency being sued, not any interest in the case. Gray v. RI Dept. of Children, Youth and Families, 937 F.Supp. 153 (D.R.I. 1996).

A husband and wife filed for bankruptcy and several years before the filing transferred their home to their son-in-law. The trustee has brought an adversary proceeding against the son-in-law alleging a fraudulent conveyance. Although the Ethics Panel concluded that the attorney could represent the son-in-law with the consent of the debtors, the Panel cautioned the attorney that circumstances could develop where the representation of the son-in-law could materially interfere with the lawyer's independent professional judgment as related to the debtors in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the debtors. RI Eth. Op. 94-21 (1994).

An attorney may represent a client who is being sued for attorneys' fees by a law firm when another client will likely be a witness in the case, if the attorney reasonably believes the representation will not adversely affect the relationship with either client and each client consents. RI Eth. Op. 95-11 (1995).

In RI Eth. Op. 96-08 (1996), the question arose as to whether an attorney could continue to represent members of a family in an action brought against them by the administrator of an estate on the basis of fraud. After the attorney learned that one of the defendants violated a court order regarding the use of the funds in question, the Ethics Panel opined the attorney could not disclose this information to others because of the confidentiality rule (RI Rule 1.6) and that RI Rule 1.7(b) regarding simultaneous representation of co-parties controlled whether the attorney could continue to represent all of the defendants. If the attorney determines that the multiple representation will be adversely affected when the information becomes discoverable during the litigation, the lawyer will be required to withdraw. An attorney may represent the executor or the estate in probate proceedings if another lawyer in the law firm is likely to appear as a witness, provided that the attorney is not otherwise precluded from representation by reason of the conflict rules. See RI Rule 3.7(b); RI Eth. Op. 97-11 (1997). In a matter involving a personal injury claim, during the pendency of which the claimant and his spouse file for divorce, the attorney may not represent both spouses in the personal injury matter (other attorneys were involved in the divorce proceeding) because the dual representation raises a direct conflict since the allocation of the various elements of the claim consisting of lost damages and other damage components would affect the distribution of assets in the divorce proceeding. RI Eth. Op. 97-21 (1997).

Pursuant to RI Rule 1.7(b), a conflict of interest arises where attorneys are co-counsel for several plaintiffs in multiple lawsuits arising out of the same facts, and as such are simultaneously representing the survivor and the representatives of decedents' estates. RI Eth. Op. 2002-07.

1.7:315      Insured - Insurer Conflicts [See also 1.7:410 and 1.8:700]

Where an attorney represents an insurance company in defense of workers' compensation claims against company X, he/she may not represent the workers' compensation claimant against company Y who is similarly insured by the same insurance company. Since the attorney represents the insurance company in defense of claims made against its insured, both entities are the attorney's clients for purposes of a conflict of interest analysis [Ed: Notwithstanding the existence of a direct conflict, as found by the Ethics Panel, the opinion states that the conflict may be waived if the attorney reasonably believes that his/her representation of the individual client will not be adversely affected by his/her relationship with the insurance company. This finding appears to be in opposition to other opinions where direct conflicts are found to be prohibited per se and cannot be waived. It is also questionable as to whether the conclusion of the Ethics Panel is correct in that the general rule is that an attorney representing an insured through his/her/its insurance company is principally the attorney for the insured. See RI Eth. Op. 98-10 (1998) (holding that a lawyer hired by an insurance company to represent its insured must represent the insured as his/her client with undivided loyalty).

An attorney may not ethically agree to abide by insurance company's "litigation management guidelines" in representation of insured, where such guidelines interfere with the independent professional judgment of defense counsel and the quality of legal services provided to the insured by delineating the financial relationship between the insured and the law firm and setting parameters and approval prerequisites for the legal services to be provided. RI Eth. Op. 99-18 (1999).

1.7:320      Conflicts of Interest in Criminal Litigation

There is no authority in Rhode Island on this topic.

1.7:330      Multiple Representation in Non-Litigated Matters

When an attorney represents a partnership business and is given contrary instructions by the partners, the attorney may neither prepare nor assist another attorney in the preparation of real estate closing documents pertaining to the partnership business in accordance with the instructions of one of the partners. If the partners do not agree that the attorney should perform certain legal services for the partnership, then the provisions of RI Rule 1.7(a) prevent the attorney from performing such services. The Ethics Panel concludes that both partners were the attorney's clients and, therefore, an irreconcilable conflict exists. RI Eth. Op. 90-38 (1990). An attorney may represent income and remainder beneficiaries of a trust in a suit against the trustee for failing to properly diversify trust assets if the lawyer reasonably believes that the dual representation will not adversely affect the relationship with each client and consents are obtained. The Ethics Panel cautioned the attorney that the interests of the parties could become adverse to one another as the matter proceeded and withdrawal from representation might be required. RI Eth. Op. 94-24 (1994).

1.7:340      Conflicts of Interest in Representing Organizations

RI Eth. Op. 90-38 (1990) holds that the partners of a partnership, not the partnership itself, which does not exist under Rhode Island law, are the clients of the attorney and when the partners have a dispute which cannot be resolved, the attorney must withdraw from representation of the partners. As long as no overlapping interests exist between attorneys, state agency employment, and potential clients, an attorney may represent those clients before other state agencies. RI Eth. Op. 91-63 (1991). Where an attorney was engaged to represent a corporation by its two stockholders who later had a dispute, the attorney could not represent either stockholder. The Ethics Panel referred to RI Rule 2.2: Lawyer as Intermediary and in particular section (c) thereof which requires a lawyer to withdraw if that rule applies and any client so requests. The Opinion also referred to RI Rule 1.13 which allows a lawyer to represent an organization, its officers, employees, members, shareholders, or other constituents of the organization subject to the provisions of RI Rule 1.7. The Panel concluded that the attorney's responsibilities to the corporation may be materially limited by the representation of either stockholder and client's consent is therefore required to permit such representation. In this matter, the Panel further noted that the opposing shareholder, not the shareholder who requested the attorney's services, must give consent. RI Eth. Op. 93-58 (1993). In RI Eth. Op. 94-43 (1994), the Ethics Panel voted favorably from RI Rule 1.13(e), allowing a lawyer to represent an organization and its various constituents subject to the provisions of RI Rule 1.7. An attorney who represents a corporation owned by two stockholders may continue to represent the corporation and one of the stockholders in negotiating for the stock purchase from the other stockholder in accordance with RI Rule 1.13 and RI Rule 1.7. The consent of the selling stockholder is required. RI Eth. Op. 95-17 (1995).

1.7:400   Conflict of Interest Between Current Client and Third-Party Payer

Primary Rhode Island References: RI Rule 1.7
Background References: ABA Model Rule 1.7, Other Jurisdictions
Commentary: ABA/BNA § 51.901, ALI-LGL §§ 134, 135, Wolfram § 8.8

1.7:410      Insured - Insurer Conflicts [See 1.7:315 and 1.8:700]

See RI Eth. Op. 90-24 under section 1.7:315, supra. Where an attorney has been retained by an insurance company to represent its insured and the insured has also retained a second attorney to represent the insured with respect to liability in excess of the policy limits, it was held that the insured is the attorney's client and as such the attorney has obligations under RI Rule 1.4 to keep the client notified promptly with reasonable requests for information. Referring to ABA Formal Op. 96-403 (1996), the Ethics Panel opined that a lawyer hired by an insurance company to represent its insured must represent the insured as his/her client with undivided loyalty. RI Eth. Op. 98-10 (1998).

An attorney may not ethically agree to abide by insurance company's "litigation management guidelines" in representation of insured, where such guidelines interfere with the independent professional judgment of defense counsel and the quality of legal services provided to the insured by delineating the financial relationship between the insured and the law firm and setting parameters and approval prerequisites for the legal services to be provided. RI Eth. Op. 99-18 (1999).

1.7:420      Lawyer With Fiduciary Obligations to Third Person [See 1.13:520]

Where an attorney is a faculty member at an academic institution and has been asked to represent a full-time faculty member in a ten year suit against the institution, the Ethics Panel opined that although there is no client-lawyer relationship between the attorney and the academic institution, the attorney must nevertheless inform the client of the attorney's potential responsibilities to the third party (institution) and of the attorney's own interest. If the attorney reasonably believes the representation will not be adversely affected, and the client consents after consultation, the representation is permissible. RI Eth. Op. 93-60 (1993).

1.7:500   Conflict of Interest Between Current Client and Lawyer's Interest [See also 1.8:200]

Primary Rhode Island References: RI Rule 1.7
Background References: ABA Model Rule 1.7, Other Jurisdictions
Commentary: ABA/BNA § 51:501, ALI-LGL §§ 125-127, Wolfram § 8.11

In a matter where an attorney has to pursue a medical malpractice claim against a physician in a hospital where a partner served as a member of the board of directors, the Ethics Panel opined that the attorney's partner's position on the board could constitute a limiting interest within the meaning of RI Rule 1.7(b), but a client consent would cure the conflict if the lawyer believed the representation of the client will not be adversely affected. RI Eth. Op. 89-22 (1989). When an attorney is engaged to represent a client in a matter and the attorney for the opposing counsel in that matter is the same attorney who represents the attorney's spouse in the attorney's own divorce action, the Ethics Panel concluded that if the attorney reasonably believes the representation of the client will not be adversely affected by the attorney's own interest and obtains the client's consent after disclosing the facts, the attorney may continue to represent the client. Reference is made to RI Rule 1.7(b) which covers the situation where representation of a client will be materially limited by an attorney's own interest. RI Eth. Op. 96-23 (1996).

Where an attorney has a financial interest or affiliation with a particular insurance company, the attorney's independent professional judgment in recommending insurance products for a particular client would unavoidably and impermissibly be affected by the lawyer's personal interest in selling insurance. Under these circumstances, a non-consensual conflict exists. RI Eth. Op. 96-26 (1996). Absent a conflict of interest, the ethical rules do not require informed consent of the clients where an attorney (or other members of his/her law firm) represents a client and a member of the attorney's spouse's law firm represents the opposing side, provided the attorney's spouse is not involved in the matter. Even where disclosure and client consent are not required, the Ethics Panel opined that it would be prudent for the attorneys to inform their respective clients. RI Eth. Op. 97-13 (1997).

An attorney was permitted to represent a client against whom the law firm with which the attorney was formerly associated filed suit to collect outstanding attorneys' fees. RI Eth. Op. 98-07 (1998). The attorney represented that he/she had no financial interest in the recovery should the former firm prevail. It was opined that the representation is permitted if the attorney reasonably believes the representation will not be adversely affected by the attorney's own interests or by any responsibilities to the former law firm. The relationships must be disclosed to the client, however, and consent obtained.

In a matter involving the interrelationship between a referral company owned by an attorney and performing legal services for the customers of the agents and brokers of the referral company, the Ethics Panel opined that a substantial risk existed that the attorney's independent professional judgment would be compromised and, under those circumstances, a consent would be required. RI Eth. Op. 98-08 (1998). In a matter involving an attorney using constable services in which the attorney has a financial interest, the Ethics Panel referred to the Comments to RI Rule 1.7: "The lawyer's own interests should not be permitted to have adverse effect on representation of a client... A lawyer may not allow related business interests to affect representation, for example, by referring clients to an enterprise in which the lawyer has an undisclosed interest." In this matter, the attorney was required to make full disclosure and to offer clients a choice of other constable services. RI Eth. Op. 92-38 (1992). To the same effect, see RI Eth. Op. 93-4 (1993). Despite the absence of an attorney-client relationship, a violation of RI Rule 1.7(b) may arise if an attorney's representation of a client may be materially limited by the lawyer's own interests. RI Eth. Op. 93-24 (1993). RI Rule 1.7(b) lists the lawyer's own interests as a source of influence which could impair the lawyer's exercise of independent professional judgment on behalf of a client. An attorney must be mindful of the potential conflict of interest situations, which may arise by virtue of the attorney's operation of an ancillary business or other similar activities. RI Eth. Op. 93-59 (1993).