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End-of-life notice: American Legal Ethics Library

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.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Rhode Island Legal Ethics

1.10   Rule 1.10 Imputed Disqualification: General Rule

1.10:100   Comparative Analysis of Rhode Island Rule

Primary Rhode Island References: RI Rule 1.10
Background References: ABA Model Rule 1.10, Other Jurisdictions
Commentary:

1.10:101      Model Rule Comparison

Rhode Island has adopted MR 1.10, including the Comments thereto.

1.10:102      Model Code Comparison

Rhode Island has not adopted a Model Code comparison. See MR 1.10 and other jurisdictions.

1.10:103      Definition of "Firm"

Attorneys who entered into an expense and space-sharing agreement may not represent opposing sides in a post-final judgment petition. RI Eth. Op. 91-43 (1991).

An attorney who engages in an office-sharing arrangement with a city counselor is not disqualified from practicing law before the city's municipal entities because such an arrangement is not considered a law firm. RI Eth. Op. 92-33 (1992). An attorney who is part of an office-sharing agreement that does not constitute a law firm is not precluded from representing a client before the municipal zoning board when the other lawyers who share the office are city solicitors. RI Eth. Op. 2001-02 (2001).

A husband and wife who are each sole practitioners with separate offices and practices are not considered a "law firm" under RI Rule 1.10 and the imputed disqualification principles under RI Rule 1.10 will not apply. RI Eth. Op. 93-50 (1993).

"Sole practitioners" who share office space and expenses, refer clients and cases among one another, and list each other as "associates" on letterhead are really a law firm. RI Eth. Op. 93-14 (1993).

The phrase "an association of independent attorneys" will be regarded as a law firm for purposes of RI Rule 1.10's imputed disqualification. RI Eth. Op. 94-12 (1994).

Four attorneys who each have a separate practice and client accounts but share office space and advertisements with each attorney's name and the phrase "an association of independent lawyers" will be considered a "law firm" for purposes of RI Rule 1.10. RI Eth. Op. 93-66 (1993).

Factors to be considered in whether a shared office arrangement with attorneys constitutes a law firm include: whether the lawyers share information, whether they advertise as a firm, and the administrative operations of their practice. RI Eth. Op. 93-99 (1994).

An attorney may refer individuals or entities in need of legal services to other attorneys in the same office building, provided that the referring attorney and the other attorneys do not "...present themselves to the public in a way suggesting that they are a firm or conduct themselves as a firm ...." RI Eth. Op. 98-08 (1998). The attorney to whom the client is referred must independently determine in each case that he/she does not have a conflict of interest before undertaking representation, and may not share the legal fees with the referring attorney.

1.10:200   Imputed Disqualification Among Current Affiliated Lawyers

Primary Rhode Island References: RI Rule 1.10(a)
Background References: ABA Model Rule 1.10(a), Other Jurisdictions
Commentary: ABA/BNA § 51:2001, ALI-LGL § 123, Wolfram § 7.6

Rhode Island has adopted the four-part test that was also adopted in the Tenth Circuit to determine when a lawyer's new firm should be disqualified. Falvey v. A.P.C. Sales Corp., 185 F.R.D. 120 (D.R.I. 1999). The factors indicate that in interpreting RI Rule 1.10(b), disqualification will be found when: "(1) the moving lawyer, or his or her prior firm, had represented a client whose interests are materially adverse to the client at the new firm; (2) the matter in the new firm is the same or substantially related to the previous representation; (3) the lawyer had acquired information protected by RI Rules 1.6 and 1.9(b) that is material to the latter in the new firm; and (4) the new firm knew of the conflict arising from its representation." Id. at 125 (citations omitted.)

If an attorney accepts part-time work representing the state's interests against claims pursuant to a particular statute, then no one in the attorney's firm, even someone who is theoretically isolated, may represent future clients seeking recovery pursuant to that particular statute. RI Eth. Op. 89-1 (1989).

When an attorney serves as part-time Assistant City Solicitor, all members of her firm are disqualified from representing a client, whose position is directly adverse to the city, including criminal cases. RI Eth. Op. 90-36 (1990).

No partners in a law firm may represent a wife in a domestic relations action in the situation where one of the partners had the husband perform plumbing work on the partner's home unless the husband consents. RI Eth. Op. 91-28 (1991).

A law firm cannot represent a client whose interests are adverse to a town while a partner in the firm is an assistant city solicitor for that town. RI Eth. Op. 91-45 (1991). The firm must withdraw its representation in all matters except one matter where the case has already been adjudicated.

An attorney representing a client in a criminal matter may offer information about the victim that is available on the public record even though another attorney from the firm represented the victim in an unrelated matter. RI Eth. Op. 93-49 (1993).

Attorney A is disqualified under RI Rule 1.10 from representing a client in a lawsuit against a municipality naming the council as a defendant, despite having a client waiver, when Attorneys A and B represented this client in the suit before Attorney B was elected to the council of the same municipality. RI Eth. Op. 93-82 (1993).

An attorney is not disqualified from representing a plaintiff when his former firm represented the defendant on unrelated matters unless the attorney or any of his/her current partners or associates were precluded from representing the plaintiff under RI Rule 1.9. RI Eth. Op. 94-71 (1994).

Attorneys associated with an attorney serving on a municipal zoning board may not represent clients before the board because the attorney-board member's disqualification is imputed to all members of his or her law firm. RI Eth. Op. 93-14 (1993).

Disqualification under RI Rule 1.8, prohibiting representation of clients by an attorney whose relative represents an adverse party, is personal and not subject to imputation under RI Rule 1.10. RI Eth. Op. 96-11 (1996).

Clarifying Opinion 94-71, an attorney is not disqualified from representing a plaintiff when his or her former firm represented the defendant on unrelated matters unless the attorney possesses actual knowledge about the former client. RI Eth. Op. 94-71(A) (1995).

When two non-profit legal service agencies merge into one, the combined entity is disqualified from representing a client that would be materially adverse to the interests of any former client of either of the predecessor agencies absent consent. RI Ethics Op. 94-77 (1995).

When an associate at a law firm works part-time as an assistant town solicitor, acting as a prosecutor for the town police department, the law firm is not disqualified from representing private citizens before the town council, zoning board, or planning board because a conflict of interest does not exist. RI Eth. Op. 95-32 (1995).

When an attorney serves as Town Solicitor prosecuting criminal cases for the town, the attorney's law firm is not disqualified from representing in a domestic case the spouse of a criminal defendant who is prosecuted by the Attorney General's Office, so long as the attorney believes the representation will not adversely affect the attorney's relationship with the client spouse or both parties consent after consultation. RI Eth. Op. 95-59 (1996).

An attorney and Town Solicitor who is "of counsel" to a law firm has a sufficient relationship to trigger the application of imputed disqualification and thus any attorney at the firm is barred from representing any clients whose interests are adverse to the town and who the town solicitor represents. RI Eth. Op. 97-06 (1997).

An attorney represented a school committee during a termination hearing subsequent to which the terminated employee filed a lawsuit against the committee and various individuals on it. The committee retained other counsel to represent it in the lawsuit. Two members of the committee requested that the original attorney represent them in their individual capacities. Absent consent by the school committee, the attorney was not permitted to represent the two committee members because their interests were adverse to the interest of the committee as a whole and the pending lawsuit was substantially related to the prior termination hearing. The attorney's law firm was also prohibited from representing the individual members under Rule 1.10(a). RI Eth. Op. 2002-03.

If an attorney is prohibited from serving as a guardian for a mentally ill individual, the associates in the attorney's firm are disqualified from drafting the guardianship paperwork. RI Eth. Op. 94-79 (1995).

When a lessee's attorney's law partner advised the buyer of the leased property, conducted a title search, and drafted legal documents for the seller/lessor, the law partner is treated as having undertaken to represent the seller, and the attorney may not continue representation of the lessee in an action against the seller/lessor. RI Eth. Op. 94-80 (1995).

Attorneys in the firm of a spouse of opposing counsel are not per se disqualified by imputation under RI Rule 1.10(a), but may be so if disqualification arises under RI Rules 1.7, 1.9, 2.2, or 1.8(c), but not under RI Rule 1.8(i). RI Eth. Op. 97-13 (1997).

Attorney at a new firm is not disqualified from representing a client in litigation against a former client of the firm where attorney previously worked, if the attorneys have no actual knowledge or information relating to that particular client. RI Eth. Op. 94-74 (1994).

An attorney whose former firm represented a wife in a domestic action is not disqualified from representing the husband while working at a new firm if he/she has no knowledge or information relating to the wife or the pending matter. RI Eth. Op. 97-10 (1997).

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.

1.10:300   Removing Imputation by Screening

Primary Rhode Island References: RI Rule 1.10
Background References: ABA Model Rule 1.10, Other Jurisdictions
Commentary: ABA/BNA § 51:2001, ALI-LGL § 124, Wolfram § 7.6

If an attorney accepts part-time work representing the state's interests against claims pursuant to a particular statute, then no one in the attorney's firm, even someone who is theoretically isolated, may represent future clients seeking recovery pursuant to that particular statute. RI Eth. Op. 89-1 (1989).

An Assistant Solicitor, who works under the direct supervision of a Solicitor who is also employed by a private law firm, may not represent the municipality when clients of the Solicitor's private law firm are engaged in litigation with the municipality, even when the private law firm has withdrawn from representation. RI Eth. Op. 92-70 (1993). Imputed Disqualification extends to a Solicitor's office when an attorney is under the direct supervision of the Solicitor because screening or removal may not be feasible.

Defendant successfully rebutted plaintiff’s assertion that defendant’s law firm should be disqualified because confidential information about the plaintiff was shared while plaintiff was a former client of the defendant’s law firm. Factors leading to a successful rebuttal included the limited representation of the plaintiff and the questionable transmission of confidential information given the size of the law firm and a screen was used to insulate the new attorneys joining the law firm. Mearthane Prod. Corp. v. Lexmark Int'l, Inc., C.A. No. 00-245 ML (D.R.I. Nov. 21, 2001).

1.10:400   Disqualification of Firm After Disqualified Lawyer Departs

Primary Rhode Island References: RI Rule 1.10(b)
Background References: ABA Model Rule 1.10(b), Other Jurisdictions
Commentary: ABA/BNA § 51:2008, ALI-LGL § 124, Wolfram § 7.6.3

RI Eth. Op. 91-51 (1991) addresses disqualification in the circumstances where a former partner leaves a firm and takes an active role as Town Solicitor. The Opinion held that when an ex-partner serves as a town solicitor, after the ex-partner/solicitor has left the firm, the firm may represent clients before the town boards so long as the subject matter of the representation does not involve the same or a substantially related matter in which the ex-partner/solicitor participated on behalf of the town.

An attorney who was formerly a member of a now dissolved law firm may represent a client in negotiations with a client who is represented by another former member of the dissolved firm (and was represented by the same attorney when law firm existed), so long as the matters are not substantially related to the representation that occurred while the firm existed and the attorney has not knowledge of protected information. RI Eth. Op. 93-47 (1993).

1.10:500   Client Consent

Primary Rhode Island References: RI Rule 1.10(c)
Background References: ABA Model Rule 1.10(c), Other Jurisdictions
Commentary: ABA/BNA § 51:2001, ALI-LGL § 122, Wolfram §§ 7.2, 7.3

No partners in a law firm may represent a wife in a domestic relations action where a partner in the firm had the husband perform plumbing work on the partner's home, unless the husband consents. RI Eth. Op. 91-28 (1991).

When a secretary at a law firm that represents a husband in a domestic action previously acquired confidential information while working at a law firm that represented the wife, any improper behavior on the part of the secretary because of her knowledge will be imputed to her supervising attorney under RI Rule 5.3 and then imputed to the rest of the firm under RI Rule 1.10. RI Eth. Op. 93-11 (1993). A waiver first from the wife, then from the husband, is required.

Attorney A is disqualified from representing a client in a law suit against a municipality naming the council as a defendant under RI Rule 1.10, despite having a client waiver, when Attorneys A and B represented this client in the suit before Attorney B was elected to the council of the same municipality. RI Eth. Op. 93-82 (1993).

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.