Rhode Island Legal Ethics
II. COUNSELOR
2.1:100 Comparative Analysis of Rhode Island Rule
• Primary Rhode Island References: RI Rule 2.1
• Background References: ABA Model Rule 2.1, Other Jurisdictions
• Commentary:
2.1:101 Model Rule Comparison
Rhode Island has adopted MR 2.1 including the Comments thereto.
2.1:102 Model Code Comparison
Rhode Island has not adopted a Model Code comparison. See MR 2.1 and other jurisdictions.
2.1:200 Exercise of Independent Judgment
• Primary Rhode Island References: RI Rule 2.1
• Background References: ABA Model Rule 2.1, Other Jurisdictions
• Commentary: ABA/BNA § 31:701, ALI-LGL § 94, Wolfram § 4.3
It is a violation of RI Rule 2.1 for a lawyer to agree to abide by guidelines of an insurance company that has retained him if the guidelines interfere with the independent judgment of the attorney. RI Eth. Op. 99-18 (1999). The Advisory Panel reasoned an attorney retained by an insurance company to represent the insured "must represent the insured as his/her client with undivided loyalty." Id. (citing RI Eth. Op. 98-10 (1998)). The panel noted that the duty of an attorney under RI Rule 2.1 to exercise his or her independent professional judgment on behalf of a client is "[f]oremost among an attorney's ethical obligations." Id.
2.1:300 Non-Legal Factors in Giving Advice
• Primary Rhode Island References: RI Rule 2.1
• Background References: ABA Model Rule 2.1, Other Jurisdictions
• Commentary: ABA/BNA § 31:701, ALI-LGL § 94, Wolfram § 4.3
Rhode Island has adopted MR 2.1 including the Comments thereto.
An attorney has a duty to inform his/her client of "fatal strategic and tactical errors" made by the client's former attorney and potential claims against the attorney, because "a client is entitled to straight forward advice expressing the lawyer's honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront." RI Eth. Op. 94-70 (1994) (citing Comments to RI Rule 2.1).
2.2:100 Comparative Analysis of Rhode Island Rule
• Primary Rhode Island References: RI Rule 2.2
• Background References: ABA Model Rule 2.2, Other Jurisdictions
• Commentary:
2.2:101 Model Rule Comparison
Rhode Island has adopted MR 2.2, including the Comments thereto.
2.2:102 Model Code Comparison
Rhode Island has not adopted a Model Code comparison. See MR 2.2 and other jurisdictions.
2.2:200 Relationship of Intermediation to Joint Representation
• Primary Rhode Island References: RI Rule 2.2
• Background References: ABA Model Rule 2.2, Other Jurisdictions
• Commentary: ABA/BNA § 51:1501, ALI-LGL § 130, Wolfram §§ 8.7, 13.6
If an attorney has acted as an intermediary between two parties in the formation of a corporation, and the parties subsequently have a dispute with respect to the operation of the corporation, the lawyer must withdraw an intermediary pursuant to RI Rule 2.2(c), and may not represent either party in matters involving the subject of the intermediation. RI Eth. Op. 93-58 (1993).
2.2:300 Preconditions to Becoming an Intermediary
• Primary Rhode Island References: RI Rule 2.2
• Background References: ABA Model Rule 2.2, Other Jurisdictions
• Commentary: ABA/BNA § 51:1501, ALI-LGL § 130, Wolfram § 8.7, 13.6
When considering whether to act as an intermediary, an attorney should consider the relationship between the parties; if the relationship is antagonistic or subject to contentious litigation, or negotiation then intermediation is an impossible task. RI Eth. Op. 95-25 (1995).
2.2:400 Communication During Intermediation
• Primary Rhode Island References: RI Rule 2.2
• Background References: ABA Model Rule 2.2, Other Jurisdictions
• Commentary: ABA/BNA § 51:1501, ALI-LGL § 130, Wolfram § 8.7, 13.6
If an attorney acts as an intermediary between two clients who subsequently dispute the subject of the intermediation and retain independent counsel, the intermediating attorney must withdraw from the representation pursuant to RI Rule 2.2. RI Eth. Op. 93-76 (1993). However, the intermediating attorney may communicate information concerning the terms of the assignment to either of the parties' attorneys, as under RI Rule 2.2 the attorney-client privilege does not attach between commonly represented clients. See id. (relying on the Comment to RI Rule 2.2)).
2.2:500 Consequences of a Failed Intermediation
• Primary Rhode Island References: RI Rule 2.2
• Background References: ABA Model Rule 2.2, Other Jurisdictions
• Commentary: ABA/BNA § 51:1501, ALI-LGL § 130, Wolfram § 8.7, 13.6
2.3 Rule 2.3 Evaluation for Use by Third Persons
2.3:100 Comparative Analysis of Rhode Island Rule
• Primary Rhode
Island References: RI Rule 2.3
• Background References: ABA Model Rule 2.3, Other Jurisdictions
• Commentary:
2.3:101 Model Rule Comparison
Rhode Island has adopted MR 2.3, including the Comments thereto.
2.3:102 Model Code Comparison
Rhode Island has not adopted a Model Code comparison. See MR 2.3 and other jurisdictions.
2.3:200 Undertaking an Evaluation for a Client
• Primary Rhode Island References: RI Rule 2.3
• Background References: ABA Model Rule 2.3, Other Jurisdictions
• Commentary: ABA/BNA § 71:701, ALI-LGL § 95, Wolfram § 13.4
Although furnishing a third party evaluation constitutes a departure from the normal attorney-client relationship, an attorney is expressly authorized to render third party opinions so long as the lawyer possesses a reasonable belief that making the evaluation is compatible with other aspects of his or her relationship with the client and that the client consents to such evaluation. In re Ethics Advisory Panel Opinion, 554 A.2d 1033, 1034 (R.I. 1989); RI Eth. Op. 91-13 (1991)
2.3:300 Duty to Third Persons Who Rely on Lawyer's Opinion
• Primary Rhode Island References: RI Rule 2.3
• Background References: ABA Model Rule 2.3, Other Jurisdictions
• Commentary: ABA/BNA § 71:701, ALI-LGL § 95, Wolfram § 13.4.4
If the evaluation is intended for use by a third party, a legal relationship may or may not arise and a careful analysis of the situation is required.
There is no authority in Rhode Island on this topic.
2.3:400 Confidentiality of an Evaluation
• Primary Rhode Island References: RI Rule 2.3
• Background References: ABA Model Rule 2.3, Other Jurisdictions
• Commentary: ABA/BNA § 71:701, ALI-LGL § 95, Wolfram § 13.4.3
Except as required in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by RI Rule 1.6. RI Eth. Op. 92-88 (1993). An attorney who compiled a title report for an out of state lending institution, including charts and abstracts for the attorney's own benefit, may not give out the information to a purchaser of the loan without the consent of the third party. See id.
Financial Auditor's Request for Information
There is no authority in Rhode Island on this topic.
2.4:100 Comparative Analysis of Rhode Island Rule
• Primary Rhode Island References:
• Background References: ABA Model Rule 2.4, Other Jurisdictions
• Commentary:
MR 2.4 was added in February 2002. The Reporter's explanation of the change reads as follows:
The role of third-party neutral is not unique to lawyers, but the Commission recognizes that lawyers are increasingly serving in these roles. Unlike nonlawyers who serve as neutrals, lawyers may experience unique ethical problems, for example, those arising from possible confusion about the nature of the lawyer's role. The Commission notes that there have been a number of attempts by various organizations to promulgate codes of ethics for neutrals (e.g., aspirational codes for arbitrators or mediators or court enacted rules governing court-sponsored mediators), but such codes do not typically address the special problems of lawyers. The Commission's proposed approach is designed to promote dispute resolution parties' understanding of the lawyer-neutral's role.
2.4:101 Model Rule Comparison
Rhode Island has not adopted the new model rule.
2.4:200 Definition of "Third-Party Neutral"
• Primary Rhode Island References:
• Background References: ABA Model Rule 2.4, Other Jurisdictions
• Commentary:
Rhode Island has not adopted the new model rule.
2.4:300 Duty to Inform Parties of Nature of Lawyer's Role
• Primary Rhode Island References:
• Background References: ABA Model Rule 2.4, Other Jurisdictions
• Commentary:
Rhode Island has not adopted the new model rule.