My client, who was insured through the carrier that retained me, is giving an account of the accident that's flatly contradicted by the police report and eyewitnesses. Do I have to withdraw?

Plain-English summary

The inquiring attorney was retained by an insurance carrier to represent Jane Doe's interest in a personal injury claim brought against her by John Doe (the two were not married at the time of the accident). Jane Doe claimed she was driving and John Doe was a passenger when she lost control and struck a telephone pole, and that John Doe later got out to inspect the car and was arrested for driving under the influence while trying to move it. The attorney stated that Jane Doe's account was inconsistent with the police report and with unbiased witness statements, both of which indicated John Doe, not Jane Doe, was driving; Jane Doe had given her version in interrogatories and the attorney believed she would testify to it at deposition and trial. The attorney asked whether the Rules require withdrawal and whether the insurance carrier needs to retain separate counsel.

The panel applied Rule 1.16(a), which requires withdrawal if representation will result in a violation of the Rules or other law, and explained that this provision is triggered only if the attorney knows the client is lying in furtherance of a fraudulent claim; the panel noted the attorney had not stated that Jane Doe told the attorney John Doe was actually driving, and the panel lacked enough facts (including what the underlying DUI plea covered) to definitively advise. Short of actual knowledge, the panel found that the existence of contradictory evidence (unbiased witness statements, the police report, and John Doe's guilty plea) permits the attorney, after a full investigation, to conclude the client is lying and to withdraw under the permissive standard of Rule 1.16(b), so long as withdrawal can be accomplished without material adverse effect on the client's interests and the court approves. The panel also noted Rule 1.2(d), which bars a lawyer from assisting a client in conduct the lawyer knows is criminal or fraudulent but allows the lawyer to discuss the legal consequences of a proposed course of conduct, including the consequences of lying under oath. Because the attorney was retained by the insurance carrier, the panel added that the attorney must exercise independent professional judgment under Rule 5.4(c) in deciding whether to withdraw, and it declined to comment on the insurer's own obligations under the Rules or its agreement with Jane Doe.

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, mandatory withdrawal under Rule 1.16(a) turns on the lawyer's actual knowledge that the client is lying in furtherance of a fraudulent claim, not on the lawyer's suspicion, however well founded, that contradictory evidence exists. Where the lawyer lacks that knowledge but, after full investigation, concludes from contradictory evidence that the client is lying, Rule 1.16(b) permits withdrawal if it can be accomplished without material adverse effect on the client and the court approves. The opinion also holds that a lawyer retained by an insurance carrier must exercise independent professional judgment under Rule 5.4(c) in making this decision.

Common questions

Q: If my client's story doesn't match the police report and eyewitness statements, must I withdraw?

A: Not automatically. The opinion holds that Rule 1.16(a) mandates withdrawal only if the lawyer actually knows the client is lying in furtherance of a fraudulent claim; contradictory evidence alone supports only permissive withdrawal under Rule 1.16(b).

Q: What if I only suspect, but don't know, that my client is lying?

A: The opinion states that if, after a full investigation, the lawyer surmises or concludes the client is lying based on contradictory evidence, Rule 1.16(b) permits the lawyer to withdraw, provided withdrawal can be accomplished without material adverse effect on the client's interests and the court approves.

Q: Can I discuss with my client the consequences of testifying to a version of events I doubt?

A: Yes. The opinion notes that Rule 1.2(d) allows a lawyer to discuss the legal consequences of a proposed course of conduct with a client, including the legal consequences of lying under oath, even though the lawyer may not assist conduct the lawyer knows is criminal or fraudulent.

Q: Does it matter that the insurance carrier, not the client, retained me?

A: Yes, in one respect. The opinion holds that the attorney must exercise independent professional judgment under Rule 5.4(c) in deciding whether to withdraw, though the panel declined to address the insurer's own obligations under the Rules or under its agreement with the client.

Background and rules framework

The opinion interprets Rhode Island Rule 1.16 (Declining or Terminating Representation), which tracks Model Rule 1.16, distinguishing mandatory withdrawal under 1.16(a) (where representation would violate the Rules or other law) from permissive withdrawal under 1.16(b) (including where the client persists in conduct the lawyer reasonably believes is fraudulent, subject to no material adverse effect on the client). It also applies Rule 1.2(d) (a lawyer may not assist client conduct known to be criminal or fraudulent, but may discuss legal consequences) and Rule 5.4(c) (a lawyer's professional judgment may not be directed by one who recommends, employs, or pays the lawyer).

Citations and references

Rules of Professional Conduct:

• MR 1.16(a) (mandatory withdrawal; representation resulting in a rule or law violation)
• MR 1.16(b) (permissive withdrawal; client persisting in fraudulent conduct; no material adverse effect)
• MR 1.2(d) (assisting client conduct known to be criminal or fraudulent; discussing legal consequences)
• MR 5.4(c) (independent professional judgment; third party who pays the lawyer)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• ABA Formal Op. 96-403: Obligations of a Lawyer Representing an Insured Who Objects to a Proposed Settlement Within Policy Limits
• Alabama Bar Op. 1990-99: Dual Representation of Insurance Company and Insured When Coverage Is Questioned
• Alabama Bar Op. 2007-01: Insurance Staff Counsel

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%2008-02.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Final

Rhode Island Supreme Court Ethics Advisory Panel
Opinion No. 2008-02 Request No. 952
Issued July 10, 2008

Facts:

The inquiring attorney has been retained by Jane Doe's insurance carrier to represent her interest in a personal injury claim brought by her husband, John Doe. At the time of the injury, the two individuals were not married. John and Jane Doe had been drinking before deciding to drive to John Doe's parent's home. According to Jane Doe, she was driving and John Doe was a passenger in the front seat of her vehicle when she lost control of the vehicle and struck a telephone pole. She has further stated that John Doe got out of the vehicle to view the damage to the car which was smoking. John Doe was attempting to move the car to his parents' home which was less than a block away when police arrived and took John Doe into custody for driving under the influence. John Doe subsequently pled guilty to the DUI charge. The inquiring attorney states that Jane Doe's version of the events is not consistent with a police report, or with statements of unbiased witnesses which state that John Doe was driving, and Jane Doe was in the passenger seat. Jane Doe stated these facts in interrogatories, and the inquiring attorney believes she will testify likewise at a deposition and at a trial.

Issue Presented:

The inquiring attorney asks whether the Rules of Professional Conduct require him/her to withdraw from the representation, and whether the insurance carrier needs to

retain counsel.

Opinion:

Rule 1.16(a) requires withdrawal from representation if the inquiring attorney knows that Jane Doe is lying in furtherance of a fraudulent claim. If on the basis of contradictory evidence, the inquiring attorney surmises or concludes that Jane Doe is lying, the inquiring attorney may withdraw pursuant to Rule 1.16(b), provided withdrawal can be accomplished without material adverse effect on the client's interest. Withdrawal is subject to the court's approval.

Reasoning:

Rule 1.16(a) entitled "Declining or terminating representation" sets out the circumstances for both mandatory and permissive withdrawal from a lawyer's representation of a client.

Final 2008-02
Page 2 of 3

The Rule states:

(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

(1) the representation will result in violation of the
rules of professional conduct or other law;

(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or

(3) the lawyer is discharged.

(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:

(1) withdrawal can be accomplished without material
adverse effect on the interests of the client;

(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;

(3) the client has used the lawyer's services to perpetrate a crime or fraud;

(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;

(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

(6) the representation will result in an unreasonable
financial burden on the lawyer or has been rendered
unreasonably difficult by the client; or

(7) other good cause for withdrawal exists.

(c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.

Final 2008-02
Page 3 of 3

Applicable to this inquiry also, is Rule 1.2(d) which states:

(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.

The inquiring attorney does not state that his/her client, Jane Doe, has told the inquiring attorney, that in fact, John Doe was driving when the accident occurred. The inquiring attorney also does not state whether the DUI charge against John Doe and his eventual guilty plea related to the first leg of this scenario, i.e. the road trip between the initial point and the impact with the telephone pole; or the second leg, i.e. the trip from the accident scene to John Doe's parents' home; or both. Without these facts, the Panel is not in the position to definitively advise the inquiring attorney. Suffice it to say that if the inquiring attorney knows that Jane Doe is lying, the inquiring attorney has an obligation to withdraw under Rule 1.16(a), subject to the court's approval, because Rule 1.2(a) prohibits lawyers from assisting a client in conduct that the lawyer knows is criminal or fraudulent. A lawyer may and should discuss the legal consequences of such conduct with a client, including the legal consequences of lying under oath. See Rule 1.2(d).

Aside from any actual knowledge that Jane Doe is lying, there exists evidence that contradicts Jane Doe's statement that she was the driver of the vehicle, namely, unbiased witness statements, a police report, and John Doe's drunk-driving plea. If on the basis of contradictory evidence, and after a full investigation of the facts, the inquiring attorney surmises or concludes that Jane Doe is lying, then Rule 1.16(b) permits the inquiring attorney to withdraw from the representation if withdrawal can be accomplished without material adverse effect on the interests of the client, and if the court approves.

In deciding whether withdrawal is appropriate under the Rules, the inquiring attorney, who has been retained by the insurance carrier, must exercise his/her independent professional judgment mandated by Rule 5.4(c). The Panel will not comment on the insurer's obligations under the Rules of Professional Conduct or under its agreement with

Jane Doe.