I'm a lawyer who was hired only as a CPA to prepare an estate's tax return. In that role I learned the estate's lawyer is setting aside funds for the administratrix in a way that shortchanges unrepresented heirs. Can I tell the probate court or disciplinary counsel, and am I required to?

Plain-English summary

The inquiring attorney, who is both a Rhode Island lawyer and a certified public accountant, was hired as a CPA only, to prepare a tax return for the estate of a man who died intestate leaving a sister, Ms. A, as administratrix, and five out-of-state nephews as the other heirs. Ms. A retained her own lawyer, Lawyer L, to represent her as administratrix. The estate's tax return showed assets over $250,000, some held in bank accounts jointly titled in the decedent's and Ms. A's names; Ms. A told the inquiring attorney the joint titling was only for convenience so she could access funds if her brother could not, not a gift of the funds to her. Lawyer L told the inquiring attorney he saw his role as helping Ms. A obtain as much of the estate as possible, and in calculating distributions Lawyer L first set aside the jointly titled funds for Ms. A despite having been told they were held for convenience. The nephews, unrepresented and out of state, had no apparent way to learn how Lawyer L was dividing the estate, and Lawyer L offered each of them a share far less than they would be entitled to under a proper division. The inquiring attorney asked the panel what he should do.

The panel first noted that the Rules of Professional Conduct bind a lawyer "whether or not he is acting in his professional capacity," citing ABA Formal Opinion 336. It quoted Rule 1.1 (competence), Rule 1.2(d) (a lawyer shall not assist a client in conduct the lawyer knows is criminal or fraudulent), Rule 3.3(A)(2) (a lawyer shall not knowingly fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a client's criminal or fraudulent act), and Rule 8.3 (mandatory reporting of another lawyer's violation raising a substantial question of honesty, trustworthiness, or fitness, subject to the Rule 1.6 confidentiality carve-out in Rule 8.3(c)). Quoting Professor Hazard's treatise, the panel explained that merely technical violations do not trigger mandatory reporting, whereas destruction of subpoenaed evidence, suborning perjury, or self-dealing with trust funds do, and it discussed In re Himmel, in which the Illinois Supreme Court suspended a lawyer's license for failing to report another attorney's fraudulent conversion of client funds, finding the failure to report had frustrated a disciplinary investigation.

The panel stated it cannot rule on the propriety of conduct of an attorney who has not sought its advice (Lawyer L not being the inquiring attorney), but it addressed the inquiring attorney's own position: because he was retained by the administratrix specifically for the limited purpose of providing accounting services, none of the information he now holds about the decedent, Ms. A, or Lawyer L's conduct is protected by attorney-client privilege. The panel concluded that if the inquiring attorney elects to reveal the information to the Probate Court and the Disciplinary Office, no impropriety will arise; if he declines to make these revelations, he may or may not have violated the reporting requirements of Rules 3.3 and 8.3.

Currency note

This opinion was issued in January 1990, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.1, 1.2, 3.3, and 8.3 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: Does attorney-client privilege protect what I learned while working as an accountant, not a lawyer, for a client?

A: Not under the facts of this opinion. The panel held that because the inquiring attorney was retained specifically for the limited purpose of providing accounting services, none of the information he holds concerning the decedent, the administratrix, or her lawyer's conduct is protected by attorney-client privilege.

Q: If I disclose what I learned to the probate court and disciplinary authorities, could I be accused of a breach?

A: The panel stated that if the inquiring attorney elects to reveal the information in his possession to the Probate Court and the Rhode Island Supreme Court's Disciplinary Office, no impropriety will arise.

Q: Am I required to report a fellow lawyer's conduct that shortchanges unrepresented parties?

A: The opinion does not resolve this definitively; it states that if the inquiring attorney declines to make the disclosures, he may or may not have violated the reporting requirements of Rules 3.3 and 8.3, without further specifying which outcome applies to his particular facts.

Q: Are the Rules of Professional Conduct binding on a lawyer even when the lawyer is not acting as a lawyer?

A: Yes. The panel stated as a threshold matter that the Rules of Professional Conduct are binding upon a lawyer "whether or not he is acting in his professional capacity," citing ABA Formal Opinion 336.

Background and rules framework

The opinion applies Rule 1.1 (competence), Rule 1.2(d) (prohibiting a lawyer from assisting a client's criminal or fraudulent conduct), Rule 3.3(A)(2) (candor toward the tribunal, including the duty to disclose a material fact necessary to avoid assisting a client's fraud), and Rule 8.3 (mandatory reporting of another lawyer's violation raising a substantial question of honesty, trustworthiness, or fitness, subject to the confidentiality exception in Rule 8.3(c)) of the Rhode Island Rules of Professional Conduct, as adopted effective November 15, 1988, to a lawyer-CPA's inquiry about disclosing what he learned in a non-legal accounting engagement.

Citations and references

Rules of Professional Conduct:

• MR 1.1 (competence)
• MR 1.2(d) (assisting client fraud)
• MR 3.3(A)(2) (candor toward the tribunal)
• MR 8.3 (reporting professional misconduct)
• RI RPC 1.1, 1.2(d), 3.3(A)(2), 8.3(a), 8.3(c), as adopted November 15, 1988

Statutes:

• None cited.

Cases:

• In re Himmel, 533 N.E.2d 790, 125 Ill.2d 531, 127 Ill. Dec. 708 (Ill. 1989), cited for suspension of an attorney's license for failing to report another lawyer's fraudulent conversion of client funds under the reporting rule's predecessor, DR 1-103(a).

Other opinions cited:

• ABA Formal Opinion 336 (issued June 3, 1974), cited for the proposition that the Rules of Professional Conduct bind a lawyer whether or not he is acting in his professional capacity.

See also

• RI EAP Op. 90-04: Reporting Duty, Rule 8.3
• ABA Formal Op. 04-433: Obligation of a Lawyer to Report Professional Misconduct by a Lawyer Not Engaged in the Practice of Law
• ABA Formal Op. 03-431: Lawyer's Duty to Report Rule Violations by Another Lawyer Who May Suffer from Disability or Impairment

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%2090-05.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 (1977.6)
OPINION #90-5, REQUEST #76
Issued January 18, 1990

An attorney seeks Panel advice as to the proper course of action to take in light of certain facts of which he has become aware.

The inquiring attorney first explains that he is both an attorney licensed to practice in Rhode Island and a certified public accountant (CPA). The inquiring attorney states that he was recently hired as a CPA by the administratrix of an estate who we shall refer to as Ms. A to prepare a tax return for the estate of her late brother, Mr. A. Ms. A has retained Lawyer L to represent her as administratrix. The inquiring attorney emphasizes that he was hired as an accountant only.

Mr. A died intestate leaving his sister, Ms. A, and five nephews, children of a deceased sibling. Mr. A did not know about these nephews. The inquiring attorney states that the tax return he prepared for Mr. A's estate showed assets in excess of $250,000. The inquiring attorney indicates that some of Mr. A's bank accounts were held jointly with Ms. A. The inquiring attorney states that although he never knew Mr. A's intent, Ms. A told him that all the monies were his and that he put her name on accounts so that she could get to the monies if he could not. Lawyer L has informed the inquiring attorney that he sees his role as assisting Ms. A in obtaining as much of Mr. A's estate as possible. The inquiring attorney states that in calculating the proper distribution of the funds in the estate, Lawyer L has first set aside those funds from bank accounts to which Ms. A's name was added. The inquiring attorney states that he informed Lawyer L that Ms. A had told him that the joint accounts were set up for convenience. The inquiring attorney further advises the Panel that the five nephews, who live out of state, are not represented by counsel and have no apparent way of finding out exactly how Lawyer L has set about dividing up Mr. A's estate. The inquiring attorney states that Lawyer L has offered each of the nephews a share of the estate which is far less than they would be entitled to if Mr. A's assets were properly divided. He asks the Panel what he should do under the circumstances.

As a threshold matter, it is important to note that the Rules of Professional Conduct are binding upon a lawyer "whether or not he is acting in his professional capacity." ABA Formal Opinion 336, issued June 3, 1974.

Rule 1.1 entitled "Competence" provides,

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Rule 1.2, entitled "Scope of Representation" provides, in pertinent part:

(d) A lawyer shall not . . . assist a client in conduct that the lawyer knows is criminal or fraudulent . . .

Rule 3.3, entitled "Candor toward the Tribunal" provides, in pertinent part:

(A) A lawyer shall not knowingly

(2) Fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client.

Rule 8.3, entitled "Reporting Professional Misconduct" provides, in pertinent part:

(a) A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate professional authority.

(c) This rule does not require disclosure of information otherwise protected by Rule 1.6 [Confidentiality of Information].

Explaining the scope of Rule 8.3, Professor Hazard notes that

merely technical violations . . . would not qualify [under the mandatory reporting provisions of Rule 8.3] whereas destruction of evidence under subpoena, suborning perjury or self-dealing with trust funds would. I. G. Hazard The Law of Lawyering, 556.

Rule 8.3 outlines the scope of mandatory reporting of one's fellow attorney. Attorneys may report lesser infractions to the appropriate authorities as they see fit.

The Illinois Supreme Court had occasion to review the application of this reporting requirement as it was formerly embodied in DR 1-103(a) in In re Himmel, 533 N.E.2d 790, 125 Ill.2d 531, 127 Ill. Dec. 708 (1989). The Court found that Attorney Himmel's failure to report unprivileged information concerning another attorney's fraudulent conversion of client funds warranted suspension of his license. In so holding the court stressed that Himmel's failure to report his brother attorney's misconduct had effectively frustrated any disciplinary authority's investigation and was thus tantamount to interference with the administration of justice.

The Panel can not, of course, rule on the propriety of conduct of an attorney who has not sought its advice. The Panel notes, however, that since the inquiring attorney was retained by the administratrix specifically for the limited purpose of providing accounting services, none of the information he now has concerning the decedent, Ms. A or Lawyer L's conduct is protected by the attorney-client privilege. See 8 J. Wigmore Evidence 2292 (McNaughton rev.2d 1961). Thus if the inquiring attorney elects to reveal the information in his possession to the Probate Court and to the Rhode Island Supreme Court's Disciplinary Office no impropriety will arise. If the inquiring attorney declines to make these revelations, he may or may not have violated the reporting requirement of Rules 3.3 and 8.3.

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.