skip navigation
search

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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

IV. TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS

4.1   Rule 4.1 Truthfulness in Statements to Others

4.1:100   Comparative Analysis of Rhode Island Rule

Primary Rhode Island References: RI Rule 4.1
Background References: ABA Model Rule 4.1, Other Jurisdictions
Commentary:

4.1:101      Model Rule Comparison

Rhode Island has adopted MR 4.1 including the Comments thereto.

4.1:102      Model Code Comparison

Rhode Island has not adopted a Model Code comparison. See MR 4.1 and other jurisdictions.

4.1:200   Truthfulness in Out-of-Court Statements

Primary Rhode Island References: RI Rule 4.1
Background References: ABA Model Rule 4.1, Other Jurisdictions
Commentary: ABA/BNA 71:201, ALI-LGL 98

An attorney has an obligation under RI Rule 4.1 not to sign a client's name to an interrogatory, which he then has notarized by an employee in his office, regardless of the fact that the attorney may have been trying to meet a deadline to prevent the case from being dismissed. See Lisi v. Resmini, 603 A.2d 321 (R.I. 1992).

An attorney who presents a purportedly valid foreclosure deed to a client when the foreclosure proceedings have not been concluded violates RI Rule 4.1, which prohibits false statements of material facts to others. See In the Matter of Holland, 713 A.2d 227, 229 (R.I. 1998).

An attorney may continue to negotiate with an insurance adjuster on behalf of a client who has sustained personal injuries in an accident, even if the statute of limitations has run, so long as he does not make a false statement of material fact or law in the course of the negotiations. RI Eth. Op. 89-20 (1989).

An attorney is not always required to report violations of RI Rule 4.1, but rather must report only those violations which he feels are mandatory under RI Rule 8.3. The Comment to RI Rule 8.3 is instructive in making the determination. RI Eth. Op. 90-4 (1990).

A law firm may not allow the use of its letterhead by someone outside the firm because such use would constitute a material representation of fact "giving the impression that the writer of the letter is a member of the Rhode Island firm." RI Eth. Op. 93-52 (1993).

All representations concerning an attorney's fee agreement made to a court or third party must accurately represent the actual fee that the attorney will receive; any misrepresentation about the amount the attorney will actually receive is a violation of RI Rule 4.1. RI Eth. Op. 94-64 (1994).

A lawyer's failure to disclose his client's death to the opposing side prior to accepting an offer of settlement is equivalent to making a false statement of material fact under RI Rule 4.1(a). RI Eth. Op. 97-01 (1997).

4.1:300   Disclosures to Avoid Assisting Client Fraud [see also 1.6:370]

Primary Rhode Island References: RI Rule 4.1(b)
Background References: ABA Model Rule 4.1(b), Other Jurisdictions
Commentary: ABA/BNA 71:201, ALI-LGL 66, 94, Wolfram 12.6, 13.3

If an attorney and his client know that the opposing party has overpaid an award on a judgment, and the attorney holds the excess in escrow, he is obligated under RI Rule 4.1 to disclose to the opposing party that he is holding the funds. RI Eth. Op. 93-81 (1993). Failure to do so would violate RI Rule 4.1(b)'s prohibition against failure to disclose a material fact necessary to avoid assisting a criminal or fraudulent act by a client, because the client's knowing retention of the overpaid amount would constitute larceny. See id.

Although RI Rule 4.1 recognizes that a lawyer may be required to disclose false statements made by a client to a third party, this Rule is subject to the protection of RI Rule 1.6, which precludes an attorney from disclosing information relating to the representation of a client (subject to exceptions). RI Eth. Op. 92-17(1992), RI Eth. Op. 96-27 (1996).

4.2   Rule 4.2 Communication with Person Represented by Counsel

4.2:100   Comparative Analysis of Rhode Island Rule

Primary Rhode Island References: RI Rule 4.2
Background References: ABA Model Rule 4.2, Other Jurisdictions
Commentary:

4.2:101      Model Rule Comparison

RI Rule 4.2 is identical to MR 4.2, except that it substitutes the term "party" where "person" appears in MR 4.2. Rhode Island has adopted Comment [1] to MR 4.2, except that the Rhode Island Comment uses the term "party" in place of "represented person." Rhode Island has also adopted MR 4.2 Comment [4] but has changed the text slightly, referring to a "lawyer for one party" instead of the phrase "lawyer for another person or entity," used in the Comment to MR 4.2. Comments [2], [3], [5], and [6] to MR 4.2 have not been adopted by Rhode Island.

4.2:102      Model Code Comparison

Rhode Island has not adopted a Model Code comparison. See MR 4.2 and other jurisdictions.

4.2:200   Communication with a Represented Person

Primary Rhode Island References: RI Rule 4.2
Background References: ABA Model Rule 4.2, Other Jurisdictions
Commentary: ABA/BNA 71:301, ALI-LGL 99-103, Wolfram 11.6.2

Predecessor counsel may not communicate with a former client about his/her discharge by the client or file transfer without successor counsel's consent. RI Eth. Op. 2002-04.

Where a client retained other counsel to pursue a legal malpractice action against predecessor counsel, the attorney-client relationship had been terminated and predecessor counsel had no ethical obligation to continue to advise the client regarding the previous matter. Predecessor counsel would violate Rule 4.2 if he/she communicated with the client about the previous matter without the malpractice attorney's consent. RI Eth. Op. 2002-01.

Direct contact with a Chapter 7 debtor by a creditor's attorney while counsel represents the debtor is ethically improper and may constitute a violation of RI Rule 4.2. See In Re Laurie, 183 B.R. 30, 33 (D.R.I. 1995).

An attorney who makes repeated attempts to contact an opposing party's counsel and has no success because her mail is returned and she is unable to locate the attorney's phone number through the Rhode Island Bar Association or by other means, may properly send mail to the opposing party. RI Eth. Op. 89-18 (1989).

A lawyer who believes that his client was intentionally misled or defrauded by the opposing attorney through the opposing attorney's violation of RI Rule 4.2 is obligated to report the RI Rule 4.2 violation to the disciplinary authorities pursuant to RI Rule 8.3. RI Eth. Op. 92-72 (1992).

An attorney may communicate with a former client concerning that attorney's payment for services even though new counsel represents the client at the time of the communication. RI Eth. Op. 92-96 (1993). The attorney is prohibited by RI Rule 4.2 only from communication with the otherwise represented former-client in connection with the representation of a client or on behalf of a client. See id.

RI Rule 4.2 does not govern the propriety of a criminal defense attorney contacting a victim regarding a pending criminal matter; the prosecutor's client in a criminal matter is the state, not the victim. RI Eth. Op. 93-32 (1993). If the victim is not represented by counsel, the defense attorney's contact with the victim is governed by RI Rule 4.3. See id.

4.2:210      "Represented Person" (Contact with an Agent or Employee of a Represented Entity)

An attorney may not advise a salesperson working for an insurance company that she may be more personally liable for her actions than the insurance company's lawyer has made her aware where the insurance company is an opposing party. RI Eth. Op. 90-8 (1990). Even if the attorney feels that the salesperson ought to be made aware of her rights, he may not contact her to explain these rights in the absence of the insurance company's lawyer's consent. See id. If the attorney feels that the insurance company's counsel has engaged in professional misconduct, his remedy is to report that counsel to the disciplinary authorities pursuant to RI Rule 8.3, rather than to attempt to help the opposing party's sales agent himself in violation of RI Rule 4.2. See id.

RI Rule 4.2 does not prohibit an attorney or his agent from conducting ex parte interviews of former employees of an adverse corporate party. RI Eth. Op. 91-74 (1991). RI Rule 4.2 was not meant to cover a corporate party's former employees, but rather applies only when a "party" witness is involved. See id.

An attorney may not contact a represented opposing party's insurance carrier, but rather must communicate exclusively through opposing counsel. RI Eth. Op. 96-14 (1996). The comment to RI Rule 4.2 prohibits contact with any person represented by counsel concerning the matter in question, whether or not that person is a party to a formal proceeding. See id. Thus, an attorney cannot contact the opposing party's insurance carrier without the consent of the opposing counsel. See id.

It is a violation of RI Rule 4.2 for an attorney to communicate with the opposing side's insurance company, even if numerous attempts to settle claims have been made with opposing counsel with no response and the attorney believed that the offers were not conveyed to the opposing side. RI Eth. Op. 92-11 (1992). In such a case, the proper recourse is to file a complaint with the Disciplinary Counsel against the opposing attorney pursuant to RI Rule 8.3. See id. See also RI Eth. Op. 93-33 (1993); RI Eth. Op. 94-81 (1995).

4.2:220      Communications "Authorized by Law"- Law Enforcement Activities

There is no authority in Rhode Island on this topic.

4.2:230      Communications "Authorized by Law"- Other

The Commission for Human Rights' directive, which requires attorneys to send copies of position papers to complainants who are known to be represented by counsel, may fall within the exception to RI Rule 4.2 which allows direct communication with a person who is represented by counsel when authorized by law. RI Eth. Op. 97-14 (1997). However, an attorney may not send a represented party extraneous material, such as an adversarial letter to a compliance officer, which are not properly part of the pleadings and thus not authorized by the Commission for Human Rights or permitted by RI Rule 4.2. See id.

4.2:240      Communication with a Represented Government Agency or Officer

There is no authority in Rhode Island on this topic.

4.2:250      Communication with a Confidential Agent of Non-Client

An attorney may not communicate with the in-house counsel of an opposing institutional party if the in-house counsel is not the opposing counsel of record in the matter even if the attorney wishes to contact the in-house counsel due to his belief that the opposing counsel of record has not been communicating various settlement offers to the client. RI Eth. Op. 94-81 (1995).

4.3   Rule 4.3 Dealing with Unrepresented Person

4.3.100   Comparative Analysis of Rhode Island Rule

Primary Rhode Island References: RI Rule 4.3
Background References: ABA Model Rule 4.3, Other Jurisdictions
Commentary:

4.3:101      Model Rule Comparison

Rhode Island has adopted MR 4.3 including the Comments thereto.

4.3:102      Model Code Comparison

Rhode Island has not adopted a Model Code comparison. See MR 4.3 and other jurisdictions.

4.3:200   Dealing with Unrepresented Person

Primary Rhode Island References: RI Rule 4.3
Background References: ABA Model Rule 4.3, Other Jurisdictions
Commentary: ABA/BNA 71:501, ALI-LGL 103, Wolfram 11.6.3

The Comment states that while representing a client, a lawyer should be wary of unrepresented persons inexperienced in legal matters since they may believe that a lawyer's loyalties do not lie elsewhere. In addition, no lawyer should give advice to an unrepresented person other than to advise whether s/he should obtain counsel.

RI Rule 4.3 requires only that when dealing with a person who is not represented by counsel, the lawyer shall: (1) make no representation of disinterest; and (2) if the lawyer becomes aware that there is a misunderstanding, then the lawyer shall make reasonable efforts to correct the misunderstanding. RI Eth. Op. 91-74 (1991).

4.4   Rule 4.4 Respect for Rights of Third Persons

4.4:100   Comparative Analysis of Rhode Island Rule

Primary Rhode Island References: RI Rule 4.4
Background References: ABA Model Rule 4.4, Other Jurisdictions
Commentary:

4.4:101      Model Rule Comparison

Rhode Island has adopted MR 4.4 including Comments thereto.

4.4:102      Model Code Comparison

Rhode Island has not adopted a Model Code comparison. See MR 4.4 and other jurisdictions.

4.4:200   Disregard of Rights or Interests of Third Persons

Primary Rhode Island References: RI Rule 4.4
Background References: ABA Model Rule 4.4, Other Jurisdictions
Commentary: ABA/BNA 71:101, ALI-LGL 103, 106, 107, Wolfram 12.4.4

4.4:210      Cross-Examining a Truthful Witness; Fostering Falsity

The Comments to MR 4.4 and RI Rule 4.4 articulate that no lawyer will maliciously or vexatiously elicit evidence from third persons so as to violate the rights of those third persons. The Comment, however, fails to list examples of such rights, citing them to be too numerous.

There is no authority in Rhode Island on this topic.

4.4:220      Threatening Prosecution

Although not commented on in either MR 4.4 or RI Rule 4.4, MR 8.4(e) manifests that it is deemed misconduct if a lawyer conveys or implies that s/he has the power to improperly influence a government agency or official.

There is no authority in Rhode Island on this topic.