Two recent opinions of the Rhode Island Supreme Court Ethics Advisory Panel
FACTS The inquiring attorney is a member of the board of a local non-profit organization (the “Entity”). The Entity has been sued for personal injuries sustained at an event held by the Entity in August 2022, when a firework launched by a professional fireworks company allegedly malfunctioned and shot toward the crowd before exploding. The inquiring attorney did not attend the event in question. He or she wishes to represent the Entity in the litigation.
ISSUE PRESENTED The inquiring attorney asks whether he or she is prohibited under the Rules of Professional Conduct from representing the Entity?
OPINION It is the Panel’s opinion that the inquiring attorney is not prohibited under the Rules of Professional Conduct from representing the Entity, provided that he or she believes the representation will not be materially limited by his or her responsibilities to the Entity, or that he or she otherwise complies with Rule 1.7(b)…
In this case, the inquiring attorney is a member of the Entity’s board and seeks to represent the Entity in litigation. Comment [34] to Rule 1.7 squarely addresses this scenario in detail and is worth including in full:
A lawyer for a corporation or other organization who is also a member of its board of directors should determine whether the responsibilities of the two roles may conflict. The lawyer may be called on to advise the corporation in matters involving actions of the directors. Consideration should be given to the frequency with which such situations may arise, the potential intensity of the conflict, the effect of the lawyer’s resignation from the board and the possibility of the corporation’s obtaining legal advice from another lawyer in such situations. If there is material risk that the dual role will compromise the lawyer’s independence of professional judgment, the lawyer should not serve as a director or should cease to act as the corporation’s lawyer when conflicts of interest arise. The lawyer should advise the other members of the board that in some circumstances matters discussed at board meetings while the lawyer is present in the capacity of director might not be protected by the attorney-client privilege and that conflict of interest considerations might require the lawyer’s recusal as a director or might require the lawyer and the lawyer’s firm to decline representation of the corporation in a matter.
Accordingly, the representation contemplated by the inquiring attorney is permissible under Rule 1.7(a) if he or she believes that the representation will not be materially limited by his or her responsibilities to the Entity in the manner described in Comment [34]. See Rhode Island Supreme Court Ethics Advisory Op. 93-80. Otherwise, the representation is prohibited unless the inquiring attorney complies with the requirements of Rule 1.7(b), including obtaining the written informed consent of the Entity. See Rule 1.7, Comment [19] (setting forth the requirements for obtaining written informed consent from a client); see also Rule 1.0(e) (defining “informed consent”).
FACTS The inquiring attorney formerly worked for a law firm that represents school districts in a variety of legal matters, including disputes relating to special education. The inquiring attorney did not participate in any special education matters during his or her time at the firm; rather, he or she provided legal research to partners in a supporting role, handled public records requests, and occasionally appeared at hearings and other proceedings on behalf of clients. Now at a new firm, the inquiring attorney wishes to represent parents and guardians in special education disputes with school districts. He or she has received a client referral, of a guardian concerned that his or her grandchild’s educational rights are being violated (the “Client”). The school district in question (the “Town”) is currently a client of the inquiring attorney’s former firm and was so during the inquiring attorney’s tenure there. The inquiring attorney reports that he or she did not handle any matters for the Town during his or her time at the former law firm and has no independent knowledge of the Client’s matter.
ISSUE PRESENTED The inquiring attorney asks whether he or she is prohibited under the Rules of Professional Conduct from representing the Client?
OPINION It is the Panel’s opinion that the inquiring attorney is not prohibited under the Rules of Professional Conduct from representing the Client.
(Mike Frisch)