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.