My workers' comp client was convicted of a crime and served time, including home confinement, while collecting weekly benefits he wasn't entitled to during that period. He won't let me tell the employer or insurer. Do I have to disclose it myself, and can I keep representing him?

Plain-English summary

The inquiring attorney represented a client in a workers' compensation matter with no pending litigation, and the client was receiving weekly benefits. The client disclosed to the attorney that, while receiving benefits, he had been convicted of a crime, incarcerated for six months, and was now serving an additional six months of home confinement. The attorney explained that the workers' compensation statute bars benefits during any period of imprisonment resulting from a criminal conviction, and, citing State v. Quattrochi, 687 A.2d 78 (R.I. 1996), noted home confinement counts as imprisonment; the attorney also noted the statute is silent on any duty to disclose imprisonment to the employer or insurer. The attorney advised the client that benefits paid during confinement would need to be credited back and urged the client to notify the employer or insurer, offering to do so as well, but the client refused to consent to any disclosure by the attorney.

The panel applied Rule 1.6, quoted in full, which bars revealing information relating to the representation absent client consent (subject to narrow exceptions for preventing imminent death or substantial bodily harm, or defending the lawyer's own conduct), and Rule 1.2(d) and (e), quoted in part, which bar counseling or assisting client conduct the lawyer knows is criminal or fraudulent (while permitting discussion of legal consequences) and require the lawyer to consult with the client about the rules' limitations on the lawyer's conduct when the client expects impermissible assistance. It quoted Rule 1.2's commentary on a continuing course of wrongdoing: the lawyer may not reveal it except as Rule 1.6 permits, but must avoid furthering its purpose and may need to withdraw if continued assistance would perpetuate conduct later discovered to be fraudulent.

The panel concluded the attorney had already properly advised the client of the benefits ineligibility and the fraud-related limitations on continued representation. If the client, after consultation, still refuses disclosure, Rule 1.2 bars the attorney from any further action that would further the fraudulent conduct, potentially requiring termination of the representation, while Rule 1.6 independently bars the attorney from disclosing the imprisonment without the client's consent.

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, a lawyer who learns a client is committing an ongoing fraud against a third party (here, continuing to collect benefits the client is not entitled to) may not disclose that fraud absent client consent under Rule 1.6, but is simultaneously barred by Rule 1.2 from taking any action that would further the fraud, a limitation the opinion treats as potentially forcing withdrawal from the representation if the client will not stop or disclose the conduct.

Common questions

Q: My client is committing an ongoing fraud against a third party related to my representation, but won't let me disclose it. Can I tell the third party myself?

A: Not under this opinion. The panel held Rule 1.6 bars disclosure of client information, including an ongoing fraud, without the client's consent.

Q: If I can't disclose it, can I keep representing the client as usual?

A: No. The panel held Rule 1.2 bars the lawyer from taking any future action that would further the client's fraudulent conduct, and that termination of the representation may be required if the client won't stop or disclose.

Q: What's the lawyer required to do before reaching that point?

A: Per the opinion's reliance on the Rule 1.2 commentary, the lawyer must consult with the client, explain the legal consequences and the limitations the rules impose on the lawyer's own continued conduct, and avoid any step that would help conceal or continue the wrongdoing.

Background and rules framework

The opinion applies Rule 1.6(a), (b) (Confidentiality of Information), the Model Rule counterpart of the same number, quoted in full, and Rule 1.2(d), (e) (Scope of Representation), quoted in part, along with Rule 1.2's commentary on a lawyer's obligations when a client's wrongdoing is ongoing, including the possibility that withdrawal may be required.

Citations and references

Rules of Professional Conduct:

• MR 1.6(a), (b) (Confidentiality of Information) / RI Rule 1.6(a), (b)
• MR 1.2(d), (e) (Scope of Representation) / RI Rule 1.2(d), (e), including commentary on ongoing client wrongdoing

Cases:

• State v. Quattrochi, 687 A.2d 78 (R.I. 1996), home confinement is a form of imprisonment

See also

• ABA Formal Op. 93-376: The Lawyer's Obligation Where a Client Lies in Response to Discovery Requests
• ABA Formal Op. 92-366: Withdrawal When a Lawyer's Services Will Otherwise Be Used to Perpetrate a Fraud

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%202005-05.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. 2005-05 Request No. 898
June 3, 2005

FACTS:

The inquiring attorney represents a client in a Workers’ Compensation matter. The client currently receives a weekly compensation benefit. There is no pending litigation at the Workers’ Compensation Court. The client recently informed the inquiring attorney that while he was receiving Workers’ Compensation benefits he was convicted of a crime and was incarcerated at the ACI for six months. The client is presently serving an additional six months of home confinement.

The inquiring attorney states that pursuant to the Workers’ Compensation statute, an employee is not entitled to workers’ compensation for any period during which the employee is imprisoned as a result of a criminal conviction. The inquiring attorney notes that under State v. Quattrochi, 687 A.2d 78 (R.I. 1996) home confinement is a form of imprisonment. He/she further states that the Workers’ Compensation statute is silent as to the obligations of the employee to disclose an imprisonment to the employer or insurer.

The inquiring attorney has advised the client that under the Workers’ Compensation statute he is not entitled to receive ongoing benefits during his confinement, and that payments that were made during confinement must be credited back to the employer or insurer. The inquiring attorney urged the client to notify the employer or insurer. The attorney advised the client that the attorney would also notify them, but the client has not consented to disclosure by the inquiring attorney.

ISSUE PRESENTED:

The inquiring attorney asks whether he/she has an obligation to disclose his client’s imprisonment to the employer or insurer.

OPINION:

Rule 1.6 prohibits the inquiring attorney from disclosing the client’s imprisonment to the employer or insurer unless the client consents. If the client refuses to disclose the imprisonment to the employee or insurer, the inquiring attorney is prohibited by Rule 1.2 from taking any future action on behalf of the client that would further the client’s fraudulent conduct. Termination of the lawyer-client relationship may be required. Final 2005-05 Page 2

REASONING:

Two rules apply to this inquiry, Rule 1.6 and Rule 1.2. Rule 1.6 states:

Rule 1.6. Confidentiality of Information. –

(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).
(b) A lawyer may, but is not obligated to, reveal such information to the extent the lawyer reasonably believes necessary:
(1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; or (2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client.

Rule 1.2 states in pertinent part:

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
(e) When a lawyer knows that a client expects assistance not permitted by the rules of professional conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct.

The Comment to Rule 1.2 is particularly instructive. In relevant part, it states as

follows:
Final 2005-05
Page 3

When the client’s course of action has already begun and is continuing, the lawyer’s responsibility is especially delicate. The lawyer is not permitted to reveal the client’s wrongdoing, except where permitted by Rule 1.6.
However, the lawyer is required to avoid furthering the purpose, for example, by suggesting how it might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposes is legally proper but then discovers is criminal or fraudulent.
Withdrawal from the representation, therefore, may be required.

In the instant inquiry, the inquiring attorney has advised the client that the client is not entitled to receive workers’ compensation benefits during periods of imprisonment, including home confinement. No doubt, the inquiring attorney has counseled the client on the fraud-related issues as well. The inquiring attorney also must advise the client about the limitations imposed by Rule 1.2 on the lawyer’s conduct in continuing the representation should the client refuse to disclose the imprisonment to the employer or insurer.
If after such consultations the client decides against disclosure, the inquiring attorney is prohibited by Rule 1.2 from taking any future action on behalf of the client that would further the client’s fraudulent conduct. Termination of the lawyer-client relationship may be required. Unless the client consents, Rule 1.6 prohibits the inquiring attorney from disclosing the client’s imprisonment to the employer or insurer.

The Panel’s guidance is restricted to interpretations of the Rules of Professional Conduct and does not extend to issues under any other rules, regulations or laws, including the Workers’ Compensation statutes, that may have bearing on the issues raised by this inquiry.