My former client told me things during our consultation that contradict what I just watched her testify to in court in an unrelated case. Do I have to say or do anything about the discrepancy?

Plain-English summary

An attorney asked the panel what action, if any, she should take after a woman, Mrs. X, who had consulted her on several occasions about a divorce and about removing her husband, Mr. X, from the marital home, later gave courtroom testimony inconsistent with what she had told the attorney. During the consultations, the attorney had asked Mrs. X whether her husband drank to excess, used illegal drugs, or abused her, and was told he did not; Mrs. X said her husband yelled at her only upon learning of her affairs with other men. The attorney advised Mrs. X that she could file for divorce and seek temporary support and exclusive use of the marital home, but could not obtain a temporary restraining order because she was not in any danger. Mrs. X later retained new counsel and picked up her file. Some time afterward, the inquiring attorney was in a courtroom on an unrelated matter and witnessed Mrs. X testify in support of a temporary restraining order she had obtained, telling the court, for example, that she suffered constant abuse from Mr. X, representations the attorney describes as totally different from what Mrs. X had told her.

The panel first commended the inquiring attorney for her concern for the integrity of the judicial process. It then quoted Rule 1.6, which bars a lawyer from revealing information relating to representation of a client unless the client consents after consultation, subject to narrow exceptions including disclosures impliedly authorized to carry out the representation and disclosures the lawyer reasonably believes necessary to prevent the client from committing a criminal act likely to result in imminent death or substantial bodily harm. The panel held that the prohibition against revealing information relating to the representation of a client was clearly controlling, and that there was nothing the inquiring attorney can or should do concerning the discrepancy between what Mrs. X told her and what Mrs. X told the court.

Currency note

This opinion was issued in June 1989, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.6 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Can I say anything if I learn a former client testified to something inconsistent with what she told me?

A: According to this opinion, no. The panel held there is nothing the attorney can or should do about the discrepancy, because Rule 1.6's prohibition on revealing information relating to the representation controls.

Q: Does the exception for preventing serious harm apply if a former client may be lying to a court?

A: The opinion quotes Rule 1.6(B)(1), permitting disclosure the lawyer reasonably believes necessary to prevent the client from committing a criminal act likely to result in imminent death or substantial bodily harm, but the panel did not find that exception applicable on these facts and held the general prohibition controlling.

Q: Does it matter that the attorney no longer represents the client?

A: The opinion applies Rule 1.6's prohibition to "information relating to representation of a client" without distinguishing current from former clients on these facts, and the panel's holding covers information the attorney learned during her earlier representation of Mrs. X.

Background and rules framework

The opinion applies Rule 1.6 of the Rhode Island Rules of Professional Conduct, as adopted effective November 15, 1988, governing confidentiality of information relating to the representation of a client, to an attorney's discovery that a former client's courtroom testimony in an unrelated proceeding contradicted statements the client had made to the attorney during a prior consultation.

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information)
• RI RPC 1.6(A) (prohibition on revealing information relating to representation, as adopted November 15, 1988)
• RI RPC 1.6(B)(1) (permissive disclosure to prevent imminent death or substantial bodily harm)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• ABA Formal Opinion 93-376: Client Lies in Discovery
• RI EAP Opinion 89-07: Representing the Wife After a Brief Consultation With the Husband's Out-of-State 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%2089-12.pdf

Original opinion text

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

DIGEST OF ETHICS ADVISORY PANEL
OPINION 89-12, REQUEST #58
Issued June 15, 1989

An attorney seeks Panel advice as to what action, if any, she should take in the circumstances she describes. The attorney advises the Panel that a woman, "Mrs. X," consulted her on several occasions during the past several years concerning getting a divorce. The attorney states that Mrs. X was particularly interested in removing her husband, Mr. X, from the marital home. The attorney states that she asked Mrs. X whether her husband drank to excess, used illegal drugs or abused her in any way and was told that he did not. The attorney states that Mrs. X told her that her husband yelled at her only upon learning of her affairs with other men. The attorney states that she advised Mrs. X that Mrs. X could file for the divorce and also ask for temporary support and exclusive temporary use of the marital domicile but that she could not get a temporary restraining order because she was not in any danger. The attorney also states that she told Mrs. X that she could not guarantee that the judge would order Mr. X to move out. The attorney advises the Panel that some time later Mrs. X picked up her file, stating that she had retained new counsel and that at that point the attorney believed she had seen the last of the matter.

The attorney states that she was recently seated in a courtroom waiting for her own, unrelated case to be called when she witnessed Mrs. X testifying on a temporary restraining order she had gotten. The attorney indicates that the representations Mrs. X made to the court were totally different from what she had told the attorney. The attorney states, for example, that Mrs. X told the court that she suffered constant abuse from Mr. X.

The Panel first commended the inquiring attorney on her concern for the integrity of the judicial process. Rule 1.6, titled "Confidentiality of Information" provides, in pertinent part:

(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 . . . (emphasis supplied)

The prohibition against revealing "information relating to representation of a client" is clearly controlling. The Panel takes the position that there is nothing that the inquiring attorney can or should do concerning the discrepancy between what Mrs. X told her and what Mrs. X told the court.

Ethics Advisory Panel advice is protective in nature. There is no requirement that an attorney abide by a Panel opinion, but if he or she does, he or she is fully protected from any charge of impropriety.