My former client retained a malpractice lawyer to sue me over a missed statute of limitations and told me not to contact them directly. Do I still owe them a duty to flag a separate viable claim, and can I reach out about it anyway?

Plain-English summary

A Rhode Island client retained the inquiring attorney to pursue a premises liability claim arising from an accident in a foreign jurisdiction with a two-year statute of limitations. The attorney missed that deadline. The client then retained a different lawyer to sue the inquiring attorney for legal malpractice. The inquiring attorney believed a viable claim still existed in Rhode Island under its three-year statute of limitations and the "interest-weighing approach," and contacted the malpractice lawyer to ask whether that lawyer's representation covered the underlying premises liability claim as well as the malpractice claim, so the client could be advised of it. The malpractice lawyer said the representation was limited to the malpractice claim and told the inquiring attorney not to contact the client directly about the premises liability claim.

The panel first addressed whether the inquiring attorney had a continuing obligation to the client. It held the attorney-client relationship had been terminated once the client retained the malpractice lawyer, so the ongoing duties of diligence (Rule 1.3) and communication (Rule 1.4), which apply only where an attorney-client relationship exists, no longer ran to the client on the premises liability claim.

The panel then addressed direct contact. It concluded that the premises liability claim is the underlying claim within the malpractice matter and, in the panel's view, falls within the "subject of the representation" of the malpractice lawyer's engagement. Because the malpractice lawyer did not consent to direct contact, the panel held that persisting in contacting the client about the premises liability claim would violate Rule 4.2's bar on communicating with a represented party about the subject of the representation without the other lawyer's consent.

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, a terminated attorney-client relationship ends the diligence and communication duties of Rule 1.3 and 1.4 as to that former client. Where the former client has since retained counsel on a related matter (here, a legal malpractice claim arising from the same underlying facts), the opinion treats the underlying claim as within the "subject of the representation" of that new engagement, so Rule 4.2 bars direct contact with the client about it absent the new lawyer's consent.

Common questions

Q: Once a client fires me and hires a malpractice lawyer, do I still have to tell them about a related claim I noticed?

A: No. The panel held that the attorney-client relationship terminated when the client retained the malpractice lawyer, ending the inquiring attorney's Rule 1.3 and 1.4 duties on the premises liability claim.

Q: Can I contact my former client directly about a related claim if their malpractice lawyer says no?

A: No. The panel found the related claim was part of the "subject of the representation" of the malpractice engagement, so contacting the client without the malpractice lawyer's consent would violate Rule 4.2.

Q: Does it matter that the malpractice lawyer's engagement letter or scope only covers the malpractice claim itself?

A: Not on this record. The panel treated the underlying premises liability claim as included in the subject of the malpractice representation because it is the basis of the malpractice claim, regardless of how narrowly the malpractice lawyer described the scope of the engagement.

Background and rules framework

The opinion applies Rule 1.3 (Diligence) and Rule 1.4 (Communication), Model Rule counterparts of the same numbers, which the panel held apply only while an attorney-client relationship exists. It also applies Rule 4.2 (Communication with Person Represented by Counsel), which the opinion quotes: a lawyer "shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so."

Citations and references

Rules of Professional Conduct:

• MR 1.3 (Diligence) / RI Rule 1.3
• MR 1.4 (Communication) / RI Rule 1.4
• MR 4.2 (Communication with Person Represented by Counsel) / RI Rule 4.2

See also

• RI EAP Op. 2000-09: Direct Contact With State Agency Employees Under Rule 4.2
• ABA Formal Op. 91-359: Contact With Former Employee of Adverse Corporate Party
• ABA Formal Op. 92-362: Contact With Opposing Party in Settlement Negotiations

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%202002-01.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Final

Rhode Island Supreme Court Ethics Advisory Panel Opinion No. 2002-01 Request No. 841
Issued January 10, 2002

Facts:

A Rhode Island resident retained the inquiring attorney regarding a premises liability claim. The accident occurred in a foreign jurisdiction with a statute of limitations of two years. The inquiring attorney failed to file an action within the two- year period. The client has retained another attorney to pursue a legal malpractice action against the inquiring attorney.

The inquiring attorney believes there is a viable claim in Rhode Island under its three-year statue of limitations and the “interest-weighing approach.” The inquiring attorney contacted the malpractice attorney to ascertain whether the attorney’s representation includes the underlying premises liability along with the malpractice claim so that the client may be advised of the viable Rhode Island claim. The malpractice attorney responded that he/she represents the client solely with respect to the legal malpractice claim. The malpractice attorney prohibits the inquiring attorney from directly contacting the client concerning the premises liability claim.

Issues Presented:

1. The inquiring attorney asks if he/she has a continuing ethical obligation under Rule 1.3 or Rule 1.4 of the Rules of Professional Conduct to advise the client of the premises liability claim in Rhode Island.

2. The inquiring attorney asks whether it is a violation of the Rules of Professional Conduct if he/she contacts the client without the malpractice attorney’s consent.

Opinion:

1. The attorney-client relationship has been terminated. The inquiring attorney does not have a continuing obligation under Rule 1.3 (Diligence) or Rule 1.4 (Communication) to advise the client on the premises liability claim.

2. It would be a violation of Rule 4.2 if the inquiring attorney communicated with the client about the premises liability claim without the malpractice attorney’s consent. Final 2002-01 Page 2

Reasoning:

The obligations of diligence under Rule 1.3, and of communication under Rule 1.4, apply when there is an attorney-client relationship. In the instant inquiry, the client has retained other counsel to pursue a legal malpractice action against the inquiring attorney. The attorney-client relationship has been terminated. Therefore, the inquiring attorney has no ethical obligation to continue to advise the client regarding the premises liability claim.

For the inquiring attorney to contact the client, notwithstanding the malpractice attorney’s prohibition against his/her contacting the client, is a violation of Rule 4.2, which states:

Rule 4.2. Communication with Person Represented by Counsel. - In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

The premises liability claim is the underlying claim in the legal malpractice matter, and in the Panel’s view, is included in the “subject of the representation” of the client by the malpractice attorney. The malpractice attorney does not consent to the inquiring attorney’s direct communication with the client on the premises liability claim. To persist in contacting the client for this purpose would violate Rule 4.2.