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Rhode Island Legal Ethics
III. ADVOCATE
3.1 Rule 3.1 Meritorious Claims and Contentions
3.1:100 Comparative Analysis of Rhode Island Rule
• Primary Rhode Island References: RI Rule 3.1
• Background References: ABA Model Rule 3.1, Other Jurisdictions
• Commentary:
3.1:101 Model Rule Comparison
Rhode Island adopted MR 3.1, including the Comments thereto.
3.1:102 Model Code Comparison
Rhode Island has not adopted a Model Code comparison. See MR 3.1 and other jurisdictions.
3.1:200 Non-Meritorious Assertions in Litigations
• Primary Rhode Island References: RI Rule 3.1
• Background References: ABA Model Rule 3.1, Other Jurisdictions
• Commentary: ABA/BNA § 61:101, ALI-LGL § 110, Wolfram § 11.2
When defense counsel filed a motion to disqualify the judge from the case based in part on a false and misleading affidavit and on other allegations that were unsupported, they violated the Rhode Island Rules of Professional Conduct causing their pro hac vice status to be revoked. Obert v. Republic Western Ins, Co., 264 F.Supp.2d 106 (R.I. 2003).
3.1:300 Judicial Sanctions for Abusive Litigation Practice
• Primary Rhode Island References: RI Rule 3.1
• Background References: ABA Model Rule 3.1, Other Jurisdictions
• Commentary: ABA/BNA § 61:151, ALI-LGL § 110, Wolfram § 11.2
RI Rule 3.1 does not incorporate this subsection.
There is no authority in Rhode Island on this topic.
3.1:400 Civil Liability for Abusive Litigation Practice
• Primary Rhode Island References: RI Rule 3.1
• Background References: ABA Model Rule 3.1, Other Jurisdictions
• Commentary: ABA/BNA § 61:101, ALI-LGL §§ 56, 110, Wolfram § 11.2
RI Rule 3.1 does not incorporate this subsection.
There is no authority in Rhode Island on this topic.
3.1:500 Complying with Law and Tribunal Proceedings
• Primary Rhode Island References: RI Rule 3.1
• Background References: ABA Model Rule 3.1, Other Jurisdictions
• Commentary: ABA/BNA § 16:1201, ALI-LGL § 105, Wolfram §§ 12.1.3, 13.3.7
RI Rule 3.1 does not incorporate this subsection.
There is no authority in Rhode Island on this topic.
Despite the fact that RI Rule 3.1 does not specifically incorporate provisions imposing judicial sanctions or civil liability, violations of the good faith requirement of RI Rule 3.1 may give rise to both judicial and civil sanctions for abusive litigation practices. Goldberg v. Whitehead, 713 A.2d 204 (R.I. 1998) ("[s]uch unwarranted conduct by one presumed to be knowledgeable in the law should not be overlooked or condoned by us, and sanctions in the nature of counsel fees are warranted.").
3.2 Rule 3.2 Expediting Litigation
3.2:100 Comparative Analysis of Rhode Island Rule
• Primary Rhode Island References: RI Rule 3.2
• Background References: ABA Model Rule 3.2, Other Jurisdictions
• Commentary:
3.2:101 Model Rule Comparison
Rhode Island has adopted MR 3.2, including the comments thereto.
3.2:102 Model Code Comparison
Rhode Island has not adopted a Model Code comparison. See MR 3.2 and other jurisdictions
3.2:200 Dilatory Tactics
• Primary Rhode Island References: RI Rule 3.2
• Background References: ABA Model Rule 3.2, Other Jurisdictions
• Commentary: ABA/BNA § 61:201, ALI-LGL § 106, Wolfram § 11.2.5
3.2:300 Judicial Sanctions for Dilatory Tactics
• Primary Rhode Island References: RI Rule 3.2
• Background References: ABA Model Rule 3.2, Other Jurisdictions
• Commentary: ABA/BNA § 61:201, ALI-LGL § 106, Wolfram § 11.2.5
An attorney's failure to commence probate of estate for more than four years violated the attorney's duty under RI Rule 3.2 to make reasonable effort to expedite litigation. See In re Grochowski, 702 A.2d 1013 (R.I. 1977).
When defense counsel filed a motion to disqualify the judge from the case based in part on a false and misleading affidavit and on other allegations that were unsupported, they violated the Rhode Island Rules of Professional Conduct causing their pro hac vice status to be revoked. Obert v. Republic Western Ins. Co., 264 F.Supp.2d 106 (R.I. 2003).
3.3 Rule 3.3 Candor Toward the Tribunal
3.3:100 Comparative Analysis of Rhode Island Rule
• Primary Rhode Island References: RI Rule 3.3
• Background References: ABA Model Rule 3.3, Other Jurisdictions
• Commentary:
3.3:101 Model Rule Comparison
Rhode Island has adopted MR 3.3, including the Comments thereto.
3.3:102 Model Rule Comparison
Rhode Island has not adopted a Model Code comparison. See MR 3.3 and other jurisdictions.
3.3:200 False Statements to a Tribunal
• Primary Rhode Island References: RI Rule 3.3(a)(1) & (2)
• Background References: ABA Model Rule 3.3(a)(1) & (2), Other Jurisdictions
• Commentary: ABA/BNA § 61:301, ALI-LGL § 120, Wolfram § 12.5
An attorney representing a guardianship estate for an incompetent ward who has discovered a series of apparently wrongful and/or fraudulent withdrawals from the estate may not present to the Probate Court an accounting that the attorney believes to be false or fraudulent. RI Eth. Op. 92-93 (1992). Rather, the attorney should counsel the guardian to make disclosure to the court of the existence and nature of the guardian's unexplained withdrawals and, if this effort fails, should attempt to withdraw. See id.
If an attorney chooses to negotiate a lower fee for his or her client, then all representations regarding the fees made to the court or third parties must be amended to reflect the actual fee received. RI Eth. Op. 94-64 (1994).
An attorney's appearance before the court without disclosing the fact of the plaintiff's death to the court or his or her adversary is tantamount to making a false statement to a tribunal under RI Rule 3.3. RI Eth. Op. 97-01 (1997).
Submission and defense of false affidavit in support of claims for fees and costs in violation of RI Rule 3.3(a)(1)'s prohibition against knowingly making a false statement of material fact to a tribunal warranted suspension. See In re Schiff, 677 A.2d 422 (R.I. 1996).
When defense counsel filed a motion to disqualify the judge from the case based in part on a false and misleading affidavit and on other allegations that were unsupported, they violated the Rhode Island Rules of Professional Conduct causing their pro hac vice status to be revoked. Obert v. Republic Western Ins. Co., 264 F.Supp.2d 106 (R.I. 2003).
3.3:300 Disclosure to Avoid Assisting Client Crime or Fraud
• Primary Rhode Island References: RI Rule 3.3(a)(2)
• Background References: ABA Model Rule 3.3(a)(2), Other Jurisdictions
• Commentary: ABA/BNA § 61:301, ALI-LGL § 120
The results of court-ordered medical testing in connection with a suit regarding government assistance, the results of which were to be made available to the parties and to the court, may not be revealed to the court or the third parties where the client stopped receiving government assistance and the case was dropped. RI Eth. Op. 96-27 (1996). The individual does not intend to perpetuate a fraud on the court, since the individual, in light of the test results, no longer intends to pursue any claims against the third part. See id.
RI Rule 3.3 does not require defense counsel to voluntarily disclose information regarding a prior conviction of a criminal defendant to either the court of the prosecution but the attorney cannot mislead the court or not respond accurately if asked a direct question. RI Eth. Op. 91-59 (1991).
An attorney has no duty to disclose the fact that his former criminal client, who was released from prison on the condition that he participate in a residential drug treatment program, has left the program in violation of his parole because the attorney learned of the information after the conclusion of the proceeding. RI Eth. Op. 93-56 (1993).
3.3:310 Prohibition on Counseling or Assisting Fraud on a Tribunal [See also 1.6:350]
There is no authority in Rhode Island on this topic.
3.3:400 Disclosing Adverse Legal Authority
• Primary Rhode Island References: RI Rule 3.3(a)(3)
• Background References: ABA Model Rule 3.3(a)(3), Other Jurisdictions
• Commentary: ABA/BNA § 4:301, ALI-LGL §111, Wolfram § 12.8
An attorney is required to disclose a recent change in a criminal statute that is adverse to the client defendant where the prosecutor and the court appear unaware of the recent change. RI Eth. Op. 91-39 (1991).
3.3:500 Offering False Evidence
• Primary Rhode Island References: RI Rule 3.3(a)(4)
• Background References: ABA Model Rule 3.3(a)(4), Other Jurisdictions
• Commentary: ABA/BNA § 61:301, ALI-LGL §§ 115-120, Wolfram §§ 12.3, 12.43, 12.5
An attorney's appearance before the court without disclosing the fact of the plaintiff's death to the court or his or her adversary is tantamount to making a false statement to a tribunal under RI Rule 3.3. RI Eth. Op. 97-01 (1977).
3.3:510 False Evidence in Civil Proceedings
There is no authority in Rhode Island on this topic.
3.3:520 False Evidence in Criminal Proceedings
There is no authority in Rhode Island on this topic.
3.3:530 Offering a Witness an Improper Inducement
There is no authority in Rhode Island on this topic.
3.3:540 Interviewing and Preparing Witnesses
There is no authority in Rhode Island on this topic.
3.3:600 Remedial Measures Necessary to Correct False Evidence
• Primary Rhode Island References: RI Rule 3.3(a)(4)
• Background References: ABA Model Rule 3.3(a)(4), Other Jurisdictions
• Commentary: ABA/BNA § 61:401 et seq., ALI-LGL § 66, 67, Wolfram §§ 12.5, 12.6, 13.3.6
An attorney discovering past client perjury affecting an ongoing proceeding must first call upon the client to rectify the situation. RI Sup. Ct. Eth. Advisory Panel General Informational Opinion #2 (1990). If the client will not do so, the attorney must move to withdraw. See id. If withdrawal is not permitted, the attorney has "an affirmative obligation to inform the court of the falsity of the client's assertions." Id. RI Rule 3.3 expressly provides that the duties to rectify client perjury apply even when compliance requires disclosure of information otherwise protected by RI Rule 1.6." Id.
An attorney has no duty to disclose the fact that his former criminal client, who was released from prison on the condition that he participate in a residential drug treatment program, has left the program in violation of his parole because the attorney learned of the information after the conclusion of the proceeding. RI Eth. Op. 93-56 (1993).
Where the employee of a client admits giving false testimony in a deposition, the attorney should first encourage the client to persuade the employee to com forward to correct the error, and if the employee refuses, the attorney must disclose the falsity to the court or to the other party. RI Eth. Op. 91-76 (1991).
3.3:610 Duty to Reveal Fraud to the Tribunal
An attorney has an obligation to disclose information regarding the existence of an unperfected lien, which includes information disputed by his client if the failure to do so would assist a fraudulent act by the client. RI Eth. Op. 92-17 (1992).
The results of court-ordered medical testing in connection with a suit regarding government assistance, the results of which were to be made available to the parties and to the court, may not be revealed to the court or the third parties where the client stopped receiving government assistance and the case was dropped. RI Eth. Op. 96-27 (1996). The individual does not intend to perpetuate a fraud on the court, since the individual, in lights of the test results, no longer intends to pursue any claims against the third party. See id.
3.3:700 Discretion to Withhold Evidence Believed to Be False
• Primary Rhode Island References: RI Rule 3.3(c)
• Background References: ABA Model Rule 3.3(c), Other Jurisdictions
• Commentary: ABA/BNA § 61:301, ALI-LGL § 120, Wolfram § 12.5
There is no authority in Rhode Island on this topic.
3.3:800 Duty of Disclosure in Ex Parte Proceedings
• Primary Rhode Island References: RI Rule 3.3(d)
• Background References: ABA Model Rule 3.3(d), Other Jurisdictions
• Commentary: ABA/BNA § 61:301, ALI-LGL § 172 , Wolfram § 12.7
In an ex parte proceeding, an attorney "shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an unformed decision." RI Eth. Op. 94.32 (1994).
3.4 Rule 3.4 Fairness to Opposing Party and Counsel
3.4:100 Comparative Analysis of Rhode Island Rule
• Primary Rhode Island References: RI Rule 3.4
• Background References: ABA Model Rule 3.4, Other Jurisdictions
• Commentary:
3.4:101 Model Rule Comparison
Rhode Island has adopted MR 3.4, including the Comments thereto.
3.4:102 Model Code Comparison
Rhode Island has not adopted a Model Code comparison. See MR 3.4 and other jurisdictions.
3.4:200 Unlawful Destruction and Concealment of Evidence
• Primary Rhode Island References: RI Rule 3.4(a)
• Background References: ABA Model Rule 3.4(a), Other Jurisdictions
• Commentary: ABA/BNA § 61:701, ALI-LGL §§ 118, 119, Wolfram § 12.3, 12.4
Advising or causing a person to secrete himself or leave the jurisdiction of a tribunal for the purpose of making him unavailable as a witness in a pending trial of cause violates RI Rule 3.4 because it amounts to the unlawful concealment of the testimony of a witness which may have potential evidentiary value. RI Eth. Op. 91-9 (1991).
An attorney must comply with a court order to produce all health care provider records and a statement that the attorney did in fact comply with the court order, even though the attorney has already furnished the defendant with all of the medical information in the attorney's file. RI Eth. Op. 92-44 (1992). Failing to comply with such an order from the court would violate RI Rule 1.6 and Rule 3.4. See id.
3.4:300 Falsifying Evidence
• Primary Rhode Island References: RI Rule 3.4(b)
• Background References: ABA Model Rule 3.4(b), Other Jurisdictions
• Commentary: ABA/BNA §§ 61:601, 61:701, ALI-LGL § 118, Wolfram § 12.3
There is no authority in Rhode Island on this topic.
3.4:310 Prohibited Inducements
RI Rule 3.4 prohibits a lawyer from the destroying or concealing of evidence, improperly influencing a witness or obstructing discovery.
3.4:400 Knowing Disobedience to Rules of Tribunal
• Primary Rhode Island References: RI Rule 3.4(c)
• Background References: ABA Model Rule 3.4(c), Other Jurisdictions
• Commentary: ABA/BNA § 61:1231, ALI-LGL § 105, Wolfram § 12.1
The Rhode Island Supreme Court disbarred an attorney from the practice of law for violating, inter alia, RI Rule 3.4(c) when the attorney continued to serve as guardian of an estate after the Court directed him to remove himself from involvement. See In re Harold E. Krause, 737 A.2d 874 (R.I. 1999).
Advising or causing a person to secrete himself or leave the jurisdiction of a tribunal for the purpose of making him unavailable as a witness in a pending trial of cause violated RI Rule 3.4 because it amounts to the unlawful concealment of the testimony of a witness which may have potential evidentiary value. RI Eth. Op. 91-9 (1991).
An attorney must comply with a court order to produce all health care provider records and a statement that the attorney did in fact comply with the court order, even though the attorney has already furnished the defendant with all of the medical information in the attorney's file. RI Eth. Op. 92-44 (1992). Failing to comply with such an order from the court would violate RI Rule 1.6 and RI Rule 3.4. See id.
3.4:500 Fairness in Pretrial Practice
• Primary Rhode Island References: RI Rule 3.4(d)
• Background References: ABA Model Rule 3.4(d), Other Jurisdictions
• Commentary: ABA/BNA § 61:701, ALI-LGL § 106, Wolfram § 12.4
An attorney must comply with a court order to produce all health care provider records and a statement that the attorney did in fact comply with the court order, even though the attorney has already furnished the defendant with all of the medical information in the attorney's file. RI Eth. Op. 92-44 (1992). Failing to comply with such an order from the court would violate RI Rule 1.6 and RI Rule 3.4. See id.
3.4:600 Improper Trial Tactics
• Primary Rhode Island References: RI Rule 3.4(e)
• Background References: ABA Model Rule 3.4(e), Other Jurisdictions
• Commentary: ABA/BNA § 61:1361, ALI-LGL § 107, Wolfram § 12.1
There is no authority in Rhode Island on this topic.
3.4:700 Advising Witness Not to Speak to Opposing Parties
• Primary Rhode Island References: RI Rule 3.4(f)
• Background References: ABA Model Rule 3.4(f), Other Jurisdictions
• Commentary: ALI-LGL § 116, Wolfram § 12.4.2
There is no authority in Rhode Island on this topic.
3.5 Rule 3.5 Impartiality and Decorum of the Tribunal
3.5:100 Comparative Analysis of Rhode Island Rule
• Primary Rhode Island References: RI Rule 3.5
• Background References: ABA Model Rule 3.5, Other Jurisdictions
• Commentary:
3.5:101 Model Rule Comparison
Rhode Island has adopted MR 3.5, including the Comments thereto.
3.5:102 Model Code Comparison
Rhode Island has not adopted a Model Code comparison. See MR 3.5 and other jurisdictions.
3.5:200 Improperly Influencing a Judge, Juror, or Other Court Official
• Primary Rhode Island References: RI Rule 3.5(a)
• Background References: ABA Model Rule 3.5(a), Other Jurisdictions
• Commentary: ABA/BNA § 61:801, 101:702, ALI-LGL §§ 113, 115, Wolfram §§ 11.3, 11.4
3.5:210 Improperly Influencing a Judge
In providing legal services to judges a law firm should determine its fees on the same basis for all other clients. RI Eth. Op. 92-14 (1992).
It is not improper for an attorney to send flowers to a judge who is hospitalized when the attorney has appeared before the judge on several occasions, and expects to appear before the judge in the future. RI Eth. Op. 91-41 (1991). The act of sending flowers to a judge in this circumstance is "normal courtesy" that would not create an appearance of impropriety. See id. The Ethics Panel cited with approval an Illinois Supreme Court opinion that provided a standard for determining the propriety of giving gifts to judges, holding that an attorney may "… treat members of the judiciary with ordinary social hospitality." See id. (citing In re Corboy, Tuite, 528 N.E.2d 964 (1988)). In determining whether a gift is social and proper, the principal inquiry is whether the gift creates an appearance of impropriety. See id. The Court listed several factors to be considered in making this determination: "(1) the monetary value of the gift; (2) the relationship, if any, between the judge and the donor lawyer; (3) the social practices and customs associated with gifts and loans; and (4) the particular circumstances surrounding the gifts and loans." Id.
It would be ethically appropriate to invite members of the judiciary to a holiday party where the monetary value is minimal, holiday parties are customary, and the party will be hosted by the court bench/bar committee and those attorneys who regularly appear before the judges, not one person or one law form. RI Eth. Op. 92-90 (1992).
The Rhode Island Supreme Court has listed factors to be considered in determining whether a violation of RI Rule 3.5(a) has occurred:
Whether the attorney involved had an opportunity to receive a favor from a judge;
Whether the donor appeared before the judge, and if so, how frequently;
Whether a reasonable inference can be drawn that the attorney expected or hoped for favors;
Whether there was a particular relationship between the attorney and the judge that it would appear the gift was a transaction between friends;
Whether the facts lead to a reasonable inference that the attorney was not seeking to influence a matter then before or soon to come before the court;
Whether the attorney has a prior disciplinary record that would indicate lack of regard for the Rules of Ethics.
See Lisi v. Several Attorneys, 596 A.2d 313 (R.I. 1991).
In providing legal services to judges a law firm should determine its fees on the same basis as for all other clients. RI Eth. Op. 92-14 (1992).
3.5:220 Improperly Influencing a Juror
There is no authority in Rhode Island on this topic.
3.5:300 Improper Ex Parte Communication
• Primary Rhode Island References: RI Rule 3.5(b)
• Background References: ABA Model Rule 3.5(b), Other Jurisdictions
• Commentary: ABA/BNA § 61:801, 61:903, ALI-LGL § 112, Wolfram § 11.3.3
There is no authority in Rhode Island on this topic.
3.5:400 Intentional Disruption of a Tribunal
• Primary Rhode Island References: RI Rule 3.5(c)
• Background References: ABA Model Rule 3.5(c), Other Jurisdictions
• Commentary: ABA/BNA § 61:901, ALI-LGL § 105, Wolfram § 12.1.3
When defense counsel filed a motion to disqualify the judge from the case based in part on a false and misleading affidavit and on other allegations that were unsupported, they violated the Rhode Island Rules of Professional Conduct causing their pro hac vice status to be revoked. Obert v. Republic Western Ins. Co., 264 F.Supp.2d 106 (R.I. 2003).
3.6:100 Comparative Analysis of Rhode Island Rule
• Primary Rhode Island References: RI Rule 3.6
• Background References: ABA Model Rule 3.6, Other Jurisdictions
• Commentary:
3.6:101 Model Rule Comparison
Although the Rhode Island Rule is substantially similar to the Federal Rule in terms of its intent to prohibit an attorney from making statements that he/she reasonably should know may prejudice a case, the Rhode Island Rule is far more detailed in explaining when such statements are likely to be prejudicial. Initially, the Rhode Island rule applies to all lawyers, whether or not they are involved in the particular case. The Model Rule, however, only applies to an attorney who is or has been involved in a particular case, and who then makes such an extra judicial statement about that case. In section (b) of the Rhode Island Rule, which is contained only in the Comment to the Model Rule, specific matters in which an extra judicial statement is likely to be prejudicial are stated. For example, the Rhode Island rule describes that statements about character or credibility of witnesses, or statements regarding the existence of confessions in a criminal case, are deemed likely to be prejudicial to the matter. That portion of the Rhode Island rule relating to permissible statements is substantially identical to the Model Rule, with the exception that the RI rules contains no provision for responding to adverse publicity. The Comment to the RI Rule echoes the spirit of the Model Rule, but the Model Rule specifies that it only applies to attorneys involved in the matter because the likelihood of an attorney who is not involved actually prejudicing the matter is so small. Additionally, the Comment to the RI rule, unlike the Comment to the Model Rule, omits references to an attorney responding to adverse publicity.
3.6:102 Model Code Comparison
Rhode Island has not adopted a Model Code comparison. See MR 3.6 and other jurisdictions.
3.6:200 Improper Extrajudicial Statements
• Primary Rhode Island References: RI Rule 3.6(a)
• Background References: ABA Model Rule 3.6(a), Other Jurisdictions
• Commentary: ABA/BNA § 61:1001, ALI-LGL § 109, Wolfram § 12.2
The purpose of RI Rule 3.6 is to protect the integrity of the adjudicatory process by proscribing "out-of-court" public statements that threaten to influence the proceedings improperly. RI Eth. Op. 92-29 (1992) (citing Hazard, The Law of Lawyering. § 3.6:101. RI Rule 3.6 precludes only "public statements by lawyers that have a 'substantial likelihood of materially prejudicing' a proceeding. RI Eth. Op. 92-29 (1992) (emphasis in original) (citing Hazard, § 3.6:102.)
3.6:300 Permissible Statements
• Primary Rhode Island References: RI Rule 3.6(b)
• Background References: ABA Model Rule 3.6(b), Other Jurisdictions
• Commentary: ABA/BNA § 69:1001, ALI-LGL § 109, Wolfram § 12.2
There is no authority in Rhode Island on this topic.
3.6:400 Responding to Adverse Publicity
• Primary Rhode Island References: RI Rule 3.6(c)
• Background References: ABA Model Rule 3.6(c), Other Jurisdictions
• Commentary: ABA/BNA § 61:100l, ALI-LGL § 109, Wolfram § 12.2
Rhode Island has not adopted a comparable provision for Responding to Adverse Publicity.
An attorney may, as a member of a public commission, participate in the Commission's legislatively mandated activities without violating RI Rule 3.6 because: (1) the term "Statement" as used in the Rule does not encompass the asking of questions at a public hearing if such questions are not intended to constitute assertions; (2) RI Rule 3.6 does not preclude an attorney from attending hearings when testimony is being presented that may bear upon the culpability of persons who have been arrested; (3) the attorney may influence the Commission to satisfy its legislative mandate with the least possible improper influence on pending or probable court proceedings and should attempt to influence the Committee to do the same; and (4) RI Rule 3.6 would preclude the attorney from making statements outside the Commissions reports or as an individual member of the Commission that would have a substantial likelihood of materially prejudicing an adjudicative proceeding. RI Eth. Op. 92-29 (1992).
3.7 Rule 3.7 Lawyer as Witness
3.7:100 Comparative Analysis of Rhode Island Rule
• Primary Rhode Island References: RI Rule 3.7
• Background References: ABA Model Rule 3.7, Other Jurisdictions
• Commentary:
3.7:101 Model Rule Comparison
Rhode Island has adopted MR 3.7 including the comments thereto.
3.7:102 Model Code Comparison
Rhode Island has not adopted Model Code comparison. See MR 3.7 and other jurisdictions.
3.7:200 Prohibition of Advocate as Witness
• Primary Rhode Island References: RI Rule 3.7(a)
• Background References: ABA Model Rule 3.7(a), Other Jurisdictions
• Commentary: ABA/BNA § 61:501, ALI-LGL § 108, Wolfram § 7.5
• ST Commentary:
An attorney, employed by the Attorney General's office, may testify in a criminal proceeding as to the circumstances surrounding a defendant's confession. See State v. Smith, 602 A.2d 931 (R.I. 1992). Although an attorney is subject to the rules prohibiting conflicts of interest, the court held that because the employee of the Attorney General's office was not an attorney of record on the case, RI Rule 3.7 had not been violated. See id. Additionally, the court has held that a prosecuting attorney did not need to be disqualified under RI Rule 3.7 in order to be called as a witness by the defendant, when the defendant had other access to the information he sought to obtain through the prosecutor's testimony. See State v. Usenia, 599 A.2d 1026 (R.I. 1991). An attorney may not continue to represent a state agency if he/she will be a witness in that case. RI Eth. Op. 2000-2 (2000).
An attorney who prepared real estate documents may not represent one of the two joint purchasers in a subsequent action between the purchasers regarding the purchase, because the attorney has knowledge which pertains to a material issue and, therefore, may be called as a witness in this action. RI Eth. Op. 91-31 (1991).
An attorney who may be called to testify about an heir's inconsistent statements, which were made to the attorney during his/her representation of the administrator of an estate, may continue to represent the administrator in pre-trial negotiations and may act in an advisory capacity during trial, but another attorney (including any attorney in the attorney's firm) must act as the administrator's advocate at trial. RI Eth. Op. 94-61 (1994).
It is not improper for an attorney to represent him/herself at trial, despite the fact that the attorney is likely to be a witness. RI Eth. Op. 94-75 (1994). The rationale of RI Rule 3.7, to avoid the public perception that the attorney as a witness is distorting the truth to help a client or enhancing his/her own credibility by taking an oath as a witness, does not apply to this situation. Id. An attorney who witnessed a former client's will and healthcare power of attorney may assist the estate's lawyer with discovery and pre-trial motions regarding contest of the will so long as the attorney does not advocate at the trial. RI Eth. Op. 95-40 (1995); RI Eth. Op. 95-44 (1995).
3.7:300 An Affiliated Lawyer as Advocate (Imputed Disqualifications)
• Primary Rhode Island References: RI Rule 3.7(b)
• Background References: ABA Model Rule 3.7(b), Other Jurisdictions
• Commentary: ABA/BNA § 61:501, ALI-LGL § 108, Wolfram § 7.5, 7.6
Rhode Island had adopted MR 3.7 including the comments thereto.
An attorney whose sole partner represented a client in arbitration and settlement negotiations may represent that client in a civil action regarding the settlement agreement, even though the attorney's partner will probably be called as a witness. RI Eth. Op. 93-46 (1993).
An attorney may represent the executor or the estate in probate proceedings in which another lawyer in his/her firm is likely to be called as a witness. RI Eth. Op. 97-11 (1997).
Where an attorney represented a seller in pending litigation relating to the purchase and sale of a business, the attorney may continue to represent the seller even though another attorney in his/her firm who represented the seller at the closing will testify at the trial, provided that the testimony of the attorney is not adverse to the firm's client. RI Eth. Op. 2002-05.
An attorney may represent a real estate partnership, where one of the real estate partners is also the attorney's law partner, in an action against an insurance company because RI Rule 3.7(b) provides that "[a] lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness, unless precluded from doing so by RI Rule 1.7 or RI Rule 1.9." RI Eth. Op. 89-8 (1989).
3.8 Rule 3.8 Special Responsibilities of a Prosecutor
3.8:100 Comparative Analysis of Rhode Island Rule
• Primary Rhode Island References: RI Rule 3.8
• Background References: ABA Model Rule 3.8, Other Jurisdictions
• Commentary:
3.8:101 Model Rule Comparison
Rule 3.8 of
the Rhode Island Rules of Professional Conduct parallels the MR
3.8(a-e)
3.8:102 Model Code Comparison
Rhode Island has not adopted a Model Code comparison. See MR 3.8 and other jurisdictions.
3.8:200 The Decision to Charge
• Primary Rhode Island References: RI Rule 3.8(a)
• Background References: ABA Model Rule 3.8(a), Other Jurisdictions
• Commentary: ABA/BNA § 61:601, ALI-LGL § 97, Wolfram § 13.10
There is no authority in Rhode Island on this topic.
3.8:300 Efforts to Assure Accused's Right to Counsel
• Primary Rhode Island References: RI Rule 3.8(b)
• Background References: ABA Model Rule 3.8(b), Other Jurisdictions
• Commentary: ABA/BNA § 61:601, ALI-LGL § 97, Wolfram § 13.10
RI Rule 3.8(b) provides that a prosecutor shall make reasonable efforts to assure that the accused was advised of his right to counsel and the procedure for exercising that right. In addition, the prosecutor shall assure that the accused was given reasonable opportunity to obtain counsel.
There is no authority in Rhode Island on this topic.
3.8:400 Seeking Waivers of Rights from Unrepresented Defendants
• Primary Rhode Island References: RI Rule 3.8(c)
• Background References: ABA Model Rule 3.8(c), Other Jurisdictions
• Commentary: ABA/BNA § 61:601, ALI-LGL § 97, Wolfram § 13.10
A prosecutor shall not attempt to obtain a waiver of important pretrial rights, like a preliminary hearing, from an unrepresented accused under RI Rule 3.8(c).
There is no authority in Rhode Island on this topic.
3.8:500 Disclosing Evidence Favorable to the Accused
• Primary Rhode Island References: RI Rule 3.8(d)
• Background References: ABA Model Rule 3.8(d), Other Jurisdictions
• Commentary: ABA/BNA § 61:601, ALI-LGL § 97, Wolfram § 13.10.5
RI Rule 3.8(d) provides that, except when relieved by protective order from the tribunal, the prosecutor shall make timely disclosure to the defense of all information that tends to negate the guilt of the accused or mitigate the offense.
The Rhode Island Supreme Court held in State v. Binns, 732 A.2d 114 (R.I. 1999) that when a prosecutor has no pretrial knowledge of certain testimony, and when the defendant has failed to make a minimal showing that evidence in his favor has been suppressed or withheld by the state, there will be no prosecutorial misconduct.
In State v. Gasparico, 694 A.2d 1204 (R.I. 1997), the Rhode Island Supreme Court held that a prosecutor has an obligation to ensure that justice is done, while presenting the strongest possible case against the defendant.
3.8:600 Monitoring Extrajudicial Statements by Law Enforcement Officials
• Primary Rhode Island References: RI Rule 3.8(e)
• Background References: ABA Model Rule 3.8(e), Other Jurisdictions
• Commentary: ABA/BNA § 61:601, ALI-LGL § 97, Wolfram § 13.10
A prosecutor, pursuant to RI Rule 3.8(e), shall exercise reasonable care to prevent investigators, law enforcement officials, and others associated with the prosecution from making extra judicial statements that would be prohibited under RI Rule 3.6.
There is no authority in Rhode Island on this topic.
3.8:700 Issuing a Subpoena to a Lawyer
• Primary Rhode Island References: RI Rule 3.8(f)
• Background References: ABA Model Rule 3.8(f), Other Jurisdictions
• Commentary: ABA/BNA § 55:1301, ALI-LGL § 97
RI Rule 3.8(f) requires that a prosecutor obtain prior judicial approval if he or she wishes to subpoena a lawyer for the purpose of compelling the lawyer to divulge evidence that was gained as a result of the attorney-client privilege.
In re Almond, 603 A.2d 1087 (R.I. 1992), the Rhode Island Supreme Court denied a United States Attorney's petition to amend RI Rule 3.8(f). The Court held that the state and federal courts of Rhode Island are "in harmony as to the proper ethical conduct of attorneys practicing in their respective courts." Id. at 1097.
In re: Investigation of the Failure of RISDIC-Insured Financial Institutions, 605 A.2d 497 (R.I. 1992), the Rhode Island Supreme Court denied a writ of certiorari and found that a subpoena by the RISDIC Commission seeking the names and addresses of a lawyer's clients did not fall under RI Rule 3.8(f). Additionally, the court found that the RISDIC Commission was not a prosecutorial arm of the state and thus not hindered by the requirements of RI Rule 3.8(f).
3.8:800 Making Extrajudicial Statements
• Primary Rhode Island References: RI Rule 3.8(g)
• Background References: ABA Model Rule 3.8(g), Other Jurisdictions
• Commentary: ABA/BNA § 61:601, ALI-LGL § 109, Wolfram § 12.2.2
Rhode Island did not adopt MR 3.8(g) as part of its Rhode Island Rules of Professional Conduct.
3.8:900 Peremptory Strikes of Jurors
• Primary Rhode Island References: RI Rule 3.8
• Background References: Other Jurisdictions
• Commentary:
Rhode Island did not adopt this paragraph as part of its Rhode Island Rules of Professional Conduct.
3.9 Rule 3.9 Advocate in Nonadjudicative proceedings
3.9:100 Comparative Analysis of Rhode Island Rule
• Primary Rhode Island References: RI Rule 3.9
• Background References: ABA Model Rule 3.9, Other Jurisdictions
• Commentary:
3.9:101 Model Rule Comparison
Rhode Island has adopted MR 3.9 and the Comments thereto.
3.9:102 Model Code Comparison
Rhode Island has not adopted a Mode Code comparison. See MR 3.9 and other jurisdictions.
3.9:200 Duties of Advocate in Nonadjudicative Proceedings
• Primary Rhode Island References: RI Rule 3.9
• Background References: ABA Model Rule 3.9, Other Jurisdictions
• Commentary: ABA/BNA § , ALI-LGL § 104, Wolfram § 13.8
There is no authority in Rhode Island on this topic.
