Risk Update

Ethics and Disclosures — Appellate Court Concludes Arbitrator Not Conflicted, Ethics Opinion on Perspective Client Complexities

Posted Dan Bressler

Rhode Island Supreme Court Ethics Advisory Panel Op. 2026-07: “Attorneys – Conflict – Prospective client” —

  • “Where (1) a prospective client, seeking to file a personal injury action against a quasi-state entity, sought representation from an attorney, (2) the attorney ultimately declined the representation, and (3) the attorney has come under consideration to represent the entity, a conflict of interest does not exist prohibiting the inquiring attorney from representing the entity.”
  • “‘Several years ago, an individual (the ‘Wife’) seeking to file a personal injury action on behalf of her husband was referred to the inquiring attorney for potential representation. The Wife’s claims centered on the allegedly injurious operations and development activity of a quasi-state entity (the ‘Entity’) occurring on an ongoing basis near her home. During the intake process, the inquiring attorney — and possibly his or her associate — discussed with the Wife the nature of the Wife’s inquiry, the feasibility of representation, anticipated litigation costs, and potential funding sources. The inquiring attorney states that at no time did he or she determine or provide a concrete case valuation, however. The inquiring attorney ultimately declined the representation due to the anticipated litigation expense, the Wife’s concomitant inability to obtain adequate funding, and the inquiring attorney’s then-current law firm’s capacity limitations.”
  • “‘Recently, the inquiring attorney came under consideration to represent the Entity. Concerns have been raised regarding whether the inquiring attorney’s past interactions with the Wife constitute a conflict of interest prohibiting the inquiring attorney from representing the Entity. …”
  • “‘Because the Wife actively sought representation from the inquiring attorney, she is a prospective client within the meaning of Rule 1.18 of the Rules of Professional Conduct. …”
  • “‘… To be sure, the interests of the Wife and the Entity are undoubtedly materially adverse, given the Wife’s claims that the Entity’s ongoing operations and development activity have caused and continue to cause personal injury to her husband. … However, the Panel is unaware of any pending matter, substantially related or otherwise, involving the Wife and the Entity. …”
  • “‘On the facts as described by the inquiring attorney, then, the Panel concludes that no conflict exists under Rule 1.18 rendering the inquiring attorney unable to represent the Entity. Should a matter arise involving both the Entity and the Wife, however, the Panel cautions the inquiring attorney that this calculus may change. …'”
  • “Rhode Island Supreme Court Ethics Advisory Panel Op. 2026-07 (Lawyers Weekly No. 75-021-26) (3 pages) (Aug. 13, 2026).”

“NJ Panel Says Arbitrators Don’t Have To Disclose Remote Ties” —

  • “A New Jersey appellate panel on Friday rejected a former hospital employee’s argument that an arbitrator’s prior role as corporate counsel for a hospital her attorney had previously sued created a conflict of interest, ruling that such remote relationships don’t create a conflict.”
  • “A three-judge Appellate Division panel said in a published opinion that the statute governing disclosure requirements for arbitrators requires more than a reference to the arbitrator’s former position, and applies only when the prior relationship creates a reasonable question of the arbitrator’s ability to be impartial.”
  • “Angela Gray argued that had she known the arbitrator, a retired judge who was unnamed in the opinion, served as corporate counsel for Chilton Memorial Hospital for more than two decades, she would have objected to his appointment because her attorney Mark Mulick sued Chilton in 2003, the opinion said.”
  • “Despite Gray’s argument, the panel held that there was no prior relationship between the parties. University Hospital, which Gray had sued for sexual harassment and retaliation, is a state-owned academic hospital, while Chilton is not, the panel said. There also was nothing on the record to show there was any professional contact or relationship between the arbitrator and the plaintiff’s counsel.”
  • “‘Therefore, we hold a party-appointed arbitrator has no duty to disclose prior employment of over 20 years as corporate counsel for a former client, not a party to the litigation, nor a prior professional relationship with a plaintiff’s counsel during a limited portion of that time, because such remote relationships do not constitute a conflict of interest,’ Judge Avis Bishop-Thompson wrote for the panel.”
  • “The panel further found Gray’s bid to vacate the arbitrator’s final award procedurally improper, and that she had waived any objections to the arbitrator’s appointment because the arbitrator had disclosed his prior employment before the final decision was issued.”
  • “‘Even assuming the arbitrator’s statement constituted full disclosure of a potential conflict, plaintiff failed to timely object in writing and did not object on the record. Under both the [American Arbitration Association] Rule 36 and [New Jersey statute] 2A:23B-11, plaintiff waived the right to object to the arbitrator’s appointment,’ Judge Bishop-Thompson said.”