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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

1.2   Rule 1.2 Scope of Representation

1.2:100   Comparative Analysis of Rhode Island Rule

Primary Rhode Island References: RI Rule 1.2
Background References: ABA Model Rule 1.2, Other Jurisdictions
Commentary:

1.2:101      Model Rule Comparison

Rhode Island has adopted MR 1.2 including the Comments thereto.

1.2:102      Model Code Comparison

Rhode Island has not adopted a Model Code comparison. See MR 1.2 and other jurisdictions.

1.2:200   Creating the Client - Lawyer Relationship

Primary Rhode Island References: RI Rule 1.2
Background References: ABA Model Rule 1.2, Other Jurisdictions
Commentary: ABA/BNA § 31:101, ALI-LGL §§ 14-18, Wolfram § 9.2

1.2:210      Formation of Client - Lawyer Relationship

There is no authority in Rhode Island on this topic.

1.2:220      Lawyer's Duties to Prospective Client

See Section 1.1:330 and Section 1.9:200, supra. The lawyer's duty to abide by the client's decision is also qualified if the client appears to be suffering mental disability. See Comment to RI Rule 1.2.

1.2:240      Client - Lawyer Agreements

A client may not be asked to agree "to surrender the right to terminate the lawyer's services" and agreements to the contrary are impermissible. RI Eth. Op. 90-31 (1990). The cited opinion also stands for the proposition that an attorney may not assist the client in violating the client's agreement to pay from the proceeds of the case medical services rendered in connection with the case.

An attorney may not condition continued representation of client on client's release of another lawyer from liability. RI Eth. Op. 90-37 (1990). To do so would impermissibly circumscribe client's options and compromise the quality of the representation, contrary to RI Rule 1.1.

1.2:250      Lawyer's Duties to Client In General

See Section 1.1:320, supra.

1.2:260      Clients - Duties to Lawyer

See RI Rule 1.4, infra.

1.2:270      Termination of Lawyers Authority

A client may not be asked to agree to surrender the right to terminate the lawyer's services. RI Eth. Op. 90-31 (1990).

1.2:300   Authority to Make Decisions or Act for Client

Primary Rhode Island References: RI Rule 1.2(a)
Background References: ABA Model Rule 1.2(a), Other Jurisdictions
Commentary: ABA/BNA § 31.301, ALI-LGL §§ 21-23, 25-29, Wolfram §§ 4.4, 4.6

1.2:310      Allocating Authority to Decide Between Client and Lawyer

There is no authority in Rhode Island on this topic.

1.2:320      Authority Reserved to Client

Where attorneys are solicitors for a municipality, the municipality, acting through its Council, is the attorneys' client. Pursuant to Rule 1.2(a), the attorneys should comply with the Council's request that they submit redacted itemized statements of prior bills to the Council and maintain the unredacted statements at their law offices as confidential information. Providing an individual Council member with unredacted itemized statements would violate Rules 1.2, 1.6, and 1.13, unless the Council consented. RI Eth. Op. 2002-02.

When an attorney was asked to forward a copy of his client's file to another attorney for "review", RI Eth. Op. 89-13 (1989) held that the attorney was obliged to comply with the request.

Payment to a third party with funds deposited with the attorney by the client may only be made with the client's consent. RI Eth. Op. 96-33 (1996).

Settlement of personal injury action without consent of clients violated RI Rule 1.2(a) and justified suspension from the practice of law for sixty days. In re Nugent, 624 A.2d 291 (R.I. 1993).

After filing an appeal, client informed the attorney of her desire to dismiss the appeal and settle the case. RI Eth. Op. 90-3 (1990). The attorney explained in writing the risks involved. The client did not respond. RI Eth. Op. 90-3 (1990) stated that an attorney may not superimpose the attorney's judgment on a client no matter how praiseworthy the lawyer's motives may be. Under the circumstances, it would be permissible [and perhaps required] for the attorney to withdraw.

A lawyer must abide by a client's decision to settle or not settle a matter. RI Eth. Op. 99-01 (1999). An attorney's acceptance of a settlement offer against client's expressed directive was ethically improper under Rule 1.2, which requires an attorney to abide by a client's decision whether to accept an offer of settlement, regardless of the attorney’s belief that client's settlement position was unreasonable, warranted a 90-day suspension. In the Matter of A. Indeglia, 765 A.2d 444 (R.I. 2001).

See also RI Eth. Op. 91-37 (1991) and RI Eth. Op. 92-25(1992), where the Rhode Island Ethics Panel reiterated its opinion in Op. 90-3 and again opined that a lawyer could not superimpose his/her judgment on the client no matter how laudable the lawyer's motives may be.

Criminal Matters

Pursuant to RI Rule 1.2, in a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

In a case where a client maintained his innocence but felt it was in his best interest to plead guilty or nolo, the attorney was required to abide by the wishes of the client even if the attorney believed the client innocent if the attorney continues in the representation. RI Eth. Op. 91-4 (1991).

The Rhode Island Ethics Panel has underscored the mandate of a client's decision by ruling in RI Eth. Op. 96-33 (1996) that in a case involving payment from a client's funds to a third person the attorney must abide by the client's decisions concerning the objectives of representation, including payment to a third party without the client's consent. If the attorney believed the third party had a claim to the funds, the attorney has an obligation to notify the third party. If the attorney had possession of funds ear marked for payment to the third party but did not have authority of the client to release them, and there is a bona fide dispute, the attorney must hold the funds in trust until the matter is resolved. See also RI Eth. Op. 91-37 (1991).

1.2:330      Authority Reserved to Lawyer

In accordance with the Comment to RI Rule 1.2, both lawyer and client have authority and responsibility in the objectives and means of representation. A lawyer is not required to pursue objectives or employ means desired by a client simply because the client may wish the lawyer to do so. A clear distinction of the authority of lawyer and client cannot be drawn. The lawyer should assume responsibility for technical and legal tactical issues.

1.2:340      Lawyer's Authority to Act for Client

There is no authority in Rhode Island on this topic.

1.2:350      Lawyer's Knowledge Attributed to Client

There is no authority in Rhode Island on this topic.

1.2:360      Lawyer's Act or Advice as Mitigating or Avoiding Client Responsibility

There is no authority in Rhode Island on this topic.

1.2:370      Appearance Before Tribunal

There is no authority in Rhode Island on this topic.

1.2:380      Authority of Government Lawyer

There is no authority in Rhode Island on this topic.

1.2:400   Lawyer's Moral Autonomy

Primary Rhode Island References: RI Rule 1.2(b)
Background References: ABA Model Rule 1.2(b), Other Jurisdictions
Commentary: Wolfram § 10.4

1.2:500   Limiting the Scope of Representation

Primary Rhode Island References: RI Rule 1.2(c)
Background References: ABA Model Rule 1.2(c), Other Jurisdictions
Commentary: ABA/BNA § 31:301, ALI-LGL § 19, Wolfram § 5.6.7

1.2:510      Waiver of Client or Lawyer Duties (Limited Representation)

There is no authority in Rhode Island on this topic.

1.2:600   Prohibited Assistance

Primary Rhode Island References: RI Rule 1.2(d)
Background References: ABA Model Rule 1.2(d), Other Jurisdictions
Commentary: ABA/BNA § 31:301, ALI-LGL § 94, Wolfram § 13.3

An attorney may not follow a client's instructions to disregard a facially valid assignment or statutory lien in favor of the client's creditor. RI Eth. Op. 95-60.

1.2:610      Counseling Illegal Conduct

With respect to the matter of client perjury, Rhode Island has adopted the following positions: (1) there is no difference between a lawyer's obligations in a criminal case and in a civil case; and (2) where the lawyer's doubts about the veracity of a client's testimony are without a reasonable basis, he should nevertheless resolve them in favor of the client under the duty to provide zealous representation. RI General Informational Opinion #2 (1990). On the question of whether an attorney should continue his/her representation of a client who someone has alleged is "a fraud", RI Eth. Op. 88-30 (1989) opines in the affirmative stating that if an attorney knows of no dishonesty on the part of his client, the attorney may continue to represent the client. In RI Eth. Op. 91-39 (1991) the Ethics Panel opined that RI Rule 1.2 prohibits the attorney from assisting a client in taking advantage of the Court's apparent unawareness of the mandatory provisions of a new law and the attorney is therefore required to disclose the recent change in the law to the Court in a criminal proceeding.

1.2:620      Assisting Client Fraud

If an attorney reasonably believes the client is engaged in a fraud, the attorney should withdraw from representation. RI Eth. Op. 93-35 (1993).

Where attorney has no personal knowledge of any dishonesty on the part of his client, but has been advised by a third party that his client is "a fraud," the attorney's continued representation is proper. RI Eth. Op. 88-30 (1989). Whether or not the client is ultimately proven to be "a fraud" is of no particular relevance, and is properly left to the appropriate tribunal.

In RI Eth. Op. 93-81 (1993), the client was awarded benefits in a judicial proceeding. The amount of the award was unclear. The attorney and the client believed the client was entitled to receive less than the amount actually received by the client from the insurance company. The attorney disbursed the lesser amount and held the difference in escrow. It was opined that the client may be committing larceny by accepting the larger amount. In citing RI Rule 1.2(d) the Panel stated that the attorney should notify the other side. If the attorney fails to do so he/she may be assisting the client to commit a criminal act in violation of the Rule.

Assisting Client Fraud -- In General

Where the attorney represented a guardian estate in which the Ward was incompetent, and the attorney discovered withdrawals from the estate which appeared to be wrongful and or fraudulent, RI Eth. Op. 92-23 (1992) held that the attorney must undertake remedial measures concerning the alleged misappropriation by counseling the guardian, and if that fails to disclose the facts to the ward and ultimately to the probate court. The Opinion makes it clear that under no circumstances may the attorney allow the guardian to file a fraudulent accounting. (The Panel was concerned about the attorney's obligation of confidentiality under RI Rule 1.6 and pointed out that in such fiduciary situations the attorney should explain to the guardian at the outset the ethical duties to which the attorney will be bound prior to accepting the representation.)

An attorney may deliver a check issued pursuant to a pre-trial order to client, despite subsequent testimony which may be determined to be groundless or fraudulent, since attorney had no knowledge of and did not assist in any possible fraud, and the attorney took reasonable steps and provided reasonable opportunity to the opposing counsel to have the pre-trial order modified. RI Eth. Op. 92-18 (1992).

Fraudulent Claim Admitted By Client

RI Eth. Op. 92-80 (1992) opined that an attorney having knowledge of a fraudulent accident would violate RI Rule 1.2(d) if he/she represented a client in that situation.

An attorney was requested to commence an action for breach of contract for a client; immediately prior thereto client obtained a discharge in bankruptcy and did not list the claim as an asset. In RI Eth. Op. 95-36 (1995) it was opined that the attorney should counsel the client regarding the proposed course of conduct. If the contract claim is an asset that should have been disclosed in the bankruptcy petition and failure to list the claim constitutes fraud, the attorney cannot represent the client in this matter.

1.2:630      Counseling About Indeterminate or Uncertain Law

There is no authority in Rhode Island on this topic.

1.2:700   Warning Client of Limitations on Representations

Primary Rhode Island References: RI Rule 1.2(e)
Background References: ABA Model Rule 1.2(e), Other Jurisdictions
Commentary: ABA/BNA § 31:301, ALI-LGL § 105

1.2:800   Identifying to Whom A Lawyer Owes Duties

Primary Rhode Island References: RI Rule 1.2
Background References: ABA Model Rule 1.2, Other Jurisdictions
Commentary: ABA/BNA § 31:101, ALI-LGL §§ 50, 51, 96, Wolfram § 7.2

1.2:810      Prospective Clients [See 1.2:220]

There is no authority in Rhode Island on this topic.

1.2:820      Persons Paying for Representation of Another [See also 1.7:400]

There is no authority in Rhode Island on this topic.

1.2:830      Representing an Entity [See also 1.13:200]

There is no authority in Rhode Island on this topic.

1.2:840      Representing a Fiduciary [See also 1.13:520]

Referring to RI Rule 1.2(d) RI Eth. Op. 92-23 (1992) recites with approval that "where the client is a fiduciary, the lawyer may be charged with special obligations in dealings with a beneficiary". The Opinion goes on to make the following statement: "The Panel does not suggest that the Rules of Professional Conduct give rise to an attorney/client relationship with the beneficiary where an attorney undertakes representation of a fiduciary. Nor does the Panel suggest that representation of a fiduciary obligates an attorney to provide the beneficiary with the full panoply of rights and privileges enjoyed by a client. We do believe, however, that in instances where an attorney representing a guardianship estate has knowledge of the guardian's willful misappropriation of funds from the estate, the attorney owes an ethical and fiduciary duty to the incompetent ward to undertake appropriate remedial steps".

1.2:850      Class Action Clients

There is no authority in Rhode Island on this topic.