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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

1.8   Rule 1.8 Conflict of Interest: Prohibited Transactions

1.8:100   Comparative Analysis of Rhode Island Rule

• Primary Rhode Island References: RI Rule 1.8
• Background References: ABA Model Rule 1.8, Other Jurisdictions
• Commentary: ABA/BNA Lawyer's Manual on Professional Conduct 01:121 - 01:123

1.8:101      Model Rule Comparison

Rhode Island has adopted MR 1.8, including the comments thereto.

1.8:102      Model Code Comparison

Rhode Island has not adopted a Model Code comparison. See MR 1.8 and other jurisdictions.

1.8:200   Business Transactions with Client

• Primary Rhode Island References: RI Rule 1.8(a)
• Background References: ABA Model Rule 1.8(a), Other Jurisdictions
• Commentary: ABA/BNA § 51:501 et seq., ALI-LGL § 126, Wolfram §§ 7.6, 8.11

Actions of an attorney who, while serving as administrator of a client's estate, withdrew assets for personal use without seeking approval of the Probate Court for the loan or disclosing the loan to the attorney for the estate warranted disbarment. In the Matter of Brousseau, 697 A.2d 1079 (1997).

An attorney who obtained a security interest in favor of his spouse in a client's property, without meeting the requirements of RI Rule 1.8(a) was subject to public censure for his actions. In the Matter of Scott, 694 A.2d 732 (1997).

Although attorneys may simultaneously engage in other businesses or professions, the attorney must not allow the representation of the attorney's law clients to be materially limited by the attorney's non-legal business. RI Eth. Op. 96-26 (1996). An attorney with an estate planning practice who also sells insurance may not sell insurance to estate planning law clients and may not provide estate planning legal services to insurance customers. The attorney may not solicit of accept a client's consent to such a direct and substantial conflict.

An attorney may lend money to a non-client to pay his mortgage, since a violation of RI Rule 1.8(a) can only occur in the existence of an attorney-client relationship. RI Eth. Op. 94-23 (1994).

An attorney who obtained a mortgage to secure payment of his legal fees, without advising the clients to seek independent legal advice before signing the mortgage documents in his favor and did not explain the consequences of signing them, did not meet the requirements for obtaining a security interest in clients' property under RI Rule 1.8(a). Lisi v. Pearlman, 641 A.2d 81 (1994).

Because RI Rule 1.8(a) does not apply once a client's dealings in a transaction are completed, an attorney may properly purchase an interest in a real estate trust where the attorney formerly represented a client in his sale of land to the trust. RI Eth. Op. 90-9 (1990).

So long as an attorney abides by RI Rule 1.8(a)'s requirements concerning disclosure, fairness, and client consent, it is proper for the attorney to submit an offer to purchase real estate from clients, with other clients as the attorney's partners in the purchase. RI Eth. Op. 88-31 (1989).

An attorney who represents the co-guardians of two wards may purchase real estate owned by the wards (through the co-guardians), provided that the attorney gives them a written disclosure f the transaction, the attorney advises them to obtain independent counsel regarding the transaction, and the co-guardians consent in writing to the terms of the transaction. RI Eth. Op. 99-16 (1999).

1.8:300   Lawyer's Use of Information to Disadvantage of Client

• Primary Rhode Island References: RI Rule 1.8(b)
• Background References: ABA Model Rule 1.8(b), Other Jurisdictions
• Commentary: ABA/BNA §§ 55:501-55:2001 , ALI-LGL §§ 61-66, Wolfram § 6.7

Consultation with an out-of-state attorney results in an employment relationship between the two attorneys, creating a temporary attorney-client relationship between the consulted attorney and the out-of-state attorney's client. RI Eth. Op. 89-7 (1989). Thus, representation of a client whose interests are directly adverse to the client of the out-of-state attorney by the consulted attorney is improper because the consulted attorney could have been privy to pertinent information, whether or not he actually learned anything relevant to the particular case, unless consent is obtained from the client of the out-of-state attorney.

1.8:400   Client Gifts to Lawyer

• Primary Rhode Island References: RI Rule 1.8(c)
• Background References: ABA Model Rule 1.8(c), Other Jurisdictions
• Commentary: ABA/BNA § 51:601, ALI-LGL § 127, Wolfram § 8.12

There is no authority in Rhode Island on this topic.

1.8:500   Literary or Media Rights Relating to Representation

• Primary Rhode Island References: RI Rule 1.8(d)
• Background References: ABA Model Rule 1.8(d), Other Jurisdictions
• Commentary: ABA/BNA § 51:701, ALI-LGL § 36, Wolfram § 9.3.3

There is no authority in Rhode Island on this topic.

1.8:600   Financing Litigation

• Primary Rhode Island References: RI Rule 1.8(e)
• Background References: ABA Model Rule 1.8(e), Other Jurisdictions
• Commentary: ABA/BNA § 51:801, ALI-LGL § 36, Wolfram § 9.2.3

It is the attorney's prerogative whether of not to waive the costs of litigation to a non-indigent client where there is a successful recovery. RI Eth. Op. 94-33 (1994).

An attorney may enter into a loan agreement between the client and the lawyer for purposes that are unrelated to the subject of representation, so long as the loan conforms to the requirements of RI Rule 1.8(a). RI Eth. Op. 93-100 (1993).

An attorney may advance court costs and expenses of litigation to represent indigent plaintiffs in a personal injury matter, where the repayment is contingent upon the outcome of the matter. RI Eth. Op. 93-7 (1993).

A written agreement for collection services that allows the attorney to deduct expenses from one suit to cover the cost of prior suits is proper, so long as the expense reimbursements are in accordance with the written contract and the client is fully aware that the fees recovered from one suit may cover the costs from prior suits. RI Eth. Op. 92-92 (1993).

An attorney may not lend a client in a personal injury action money to assist the client in meeting monthly mortgage obligations. RI Eth. Op. 91-26 (1991).

1.8:700   Payment of Lawyer's Fee by Third Person

• Primary Rhode Island References: RI Rule 1.8(f)
• Background References: ABA Model Rule 1.8(f), Other Jurisdictions
• Commentary: ABA/BNA § 51:901, ALI-LGL §§ 134, 135, Wolfram § 8.8

An attorney's obligation is only to the client, and not to a third party who paid the legal expenses. Thus, when a third party agrees to pay for legal services and subsequently requests the remainder of the unused fee in the client's account, the attorney has no obligation to refund it to the third party without the client's consent. RI Eth. Op. 96-17 (1996).

An attorney who is also an investment advisor may not pay to another attorney a referral fee from the proceeds of a commission paid as a result of a client using investment services. RI Eth. Op. 93-54 (1993).

An attorney may represent a client in an action against one who formerly contributed to an earlier client's fee, because the fact that the defendant in the present action may have contributed to an earlier client's fee does not render that person to be a former client. RI Eth. Op. 92-65 (1992).

An attorney retained by an insurance company to represent its insured must represent the insured with undivided loyalty and may not ethically agree to abide by "litigation management guidelines" established by the insurance company (setting parameters and approval prerequisites for the legal services provided) to the extent that they interfere with the attorney's independent judgment and ultimately with the quality of the legal services provided to the insured. RI Eth. Op. 99-18 (1999).

1.8:800   Aggregate Settlements

• Primary Rhode Island References: RI Rule 1.8(g)
• Background References: ABA Model Rule 1.8(g), Other Jurisdictions
• Commentary: ABA/BNA § 51:375, ALI-LGL § 128, Wolfram § 8.15

There is no authority in Rhode Island on this topic.

1.8:900   Agreements Involving Lawyer's Malpractice Liability

• Primary Rhode Island References: RI Rule 1.8(h)
• Background References: ABA Model Rule 1.8(h), Other Jurisdictions
• Commentary: ABA/BNA § 51:110l, ALI-LGL § 54, Wolfram § 5.6.7

There is no authority in Rhode Island on this topic.

1.8:1000   Opposing Lawyer Relative

• Primary Rhode Island References: RI Rule 1.8(i)
• Background References: ABA Model Rule 1.8(i), Other Jurisdictions
• Commentary: ABA/BNA § 51:1301, ALI-LGL § 123, Wolfram § 7.6.6

An attorney who represents clients in family court matters does not need to disclose to clients that the attorney's spouse is an associate in a law firm that also represents clients in family court matters, where the attorney's spouse does not personally represent family law clients. RI Eth. Op. 97-13 (1997). RI Rule 1.8(i) permits an attorney to represent a client when a lawyer in that attorney's spouse's firm is opposing counsel, so long as the spouse is not involved in that matter.

An attorney, whose father is a member of the trial board that decides disciplinary complaints against union members, may represent union members in all matters except those in which his father is involved. RI Eth. Op. 96-11 (1996). Although RI Rule 1.8(i) applies to lawyers who are in different firms, this opinion extended its application by analogy to include this situation because of the direct conflict that such representation would present.

An attorney is not barred from representing a family as plaintiffs in a lawsuit against the school committee in a town where the attorney's fiancι is a town solicitor (but does not represent the school committee). RI Eth. Op. 94-26 (1994). However, once the marriage takes place the attorney cannot represent a client in any matter where the attorney's spouse is the lawyer representing an adverse party.

Absent informed consent, RI Rule 1.8(i) prohibits a lawyer from representing a client in a matter directly adverse to another person whose retained counsel is closely related to the lawyer because of the perception that representation of opposing interests by closely related layers risks the inadvertent breach of client confidences. RI Eth. Op. 93-50 1(1993). However, a husband may represent his wife's client in front of a state board that is statutorily separate from, but funded by, the agency where the wife is employed as legal counsel.

An attorney-wife, as a chief hearing officer, should take great caution to insulate and completely recluse herself from any situation where her attorney-husband, a private practitioner, is involved. RI Eth. Op. 92-56 (1992). This disqualification applies only to the attorney-wife and not to the office as a whole.

The disqualification in the absence of consent required under RI Rule 1.8(i), where the lawyer knows that the lawyer's parent, child, sibling, or spouse is the lawyer representing an adverse party, does not extend to members of the related attorneys' law firms. RI Eth. Op. 91-19 (1991).

1.8:1100   Lawyer's Proprietary Interest in Subject Matter of Litigation

• Primary Rhode Island References: RI Rule 1.8(j)
• Background References: ABA Model Rule 1.8(j), Other Jurisdictions
• Commentary: ABA/BNA § , ALI-LGL §§ 35, 41, 43, Wolfram §§ 8.13, 9.6.3

It is impermissible to file a lien on property that was part of a divorce and settlement agreement to ensure payment of the client's legal fees, where the client paid the retainer and terminated the representation because the client was upset about the amount due in legal fees. RI Eth. Op. 95-2 (1995). Because the proposed lien falls outside the scope of the statutory procedures, it is improper conduct.

An attorney may assist a client in obtaining a loan that will enable the client to pay the legal fees, but cannot co-sign a note for that purpose. RI Eth. Op. 92-2 (1992).