I represent a guardian whose fund withdrawals look questionable. Should I file a petition for instructions with the court?

Plain-English summary

The inquiring attorney asked whether it is proper to file a petition for instructions with the court in connection with a guardian's questionable withdrawal of funds.

The panel took the position that the attorney should first seek an explanation of the withdrawals from the guardian. If that explanation proves to be non-responsive, unsatisfactory, or seems to indicate a misappropriation of funds, then the attorney should withdraw or move to withdraw under Rule 1.16. The panel quoted Rule 1.16's provisions that a lawyer shall withdraw where the representation will result in a violation of the rules of professional conduct or other law, and that a lawyer may withdraw where the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent.

The panel added that, in all events, Rule 1.6 and the responsibility to preserve the privileged communications of the client must also be kept in mind.

Currency note

This opinion was issued in 1991, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.16 and 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, which renumbered and amended several provisions, including the confidentiality rule. 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 Treat this page as historical context, not current guidance.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: What should I do first about a guardian's questionable withdrawals?

A: Per the opinion, the attorney should first seek an explanation of the withdrawals from the guardian.

Q: What if the explanation is unsatisfactory or suggests misappropriation?

A: Per the opinion, the attorney should withdraw or move to withdraw under Rule 1.16.

Q: Does confidentiality still apply while I address this?

A: Per the opinion, yes. The panel stated that, in all events, Rule 1.6 and the responsibility to preserve the client's privileged communications must be kept in mind.

Background and rules framework

The opinion applies Rule 1.16 (Declining or Terminating Representation) and Rule 1.6 (Confidentiality of Information), corresponding to Model Rules 1.16 and 1.6. Rule 1.16 requires withdrawal where continued representation would violate the rules or other law, and permits withdrawal where the client persists in conduct the lawyer reasonably believes is criminal or fraudulent. Rule 1.6 preserves the confidentiality of the client's communications, which the panel directed the attorney to keep in mind throughout.

Citations and references

Rules of Professional Conduct:

• MR 1.16 (declining or terminating representation)
• MR 1.6 (confidentiality of information)
• RI RPC 1.16, RI RPC 1.6

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 91-37: When a Client Refuses to Pay Medical Bills From a Settlement
• RI EAP Op. 91-4: A Client Who Insists on Pleading Guilty Despite Maintaining Innocence

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%2091-65.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 #91-65, Request #132
Issued September 19, 1991

An attorney seeks Panel advice to determine if it is proper to file a petition for instructions with the court in connection with a guardian's questionable withdrawal of funds.

The Panel is of the opinion that the attorney should first seek an explanation of the withdrawals from the guardian. If this proves to be non-responsive, unsatisfactory, or seems to indicate a misappropriation of funds, then the attorney should withdraw or move to withdraw under Rule 1.16 of the Rules of Professional Conduct, which states in part that "(a) a lawyer shall withdraw from the representation of a client if the representation will result in violation of the rules of professional conduct or other law and (b) a lawyer may withdraw from representing a client if the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent."

In all events, Rule 1.6 and the responsibility to preserve the privileged communications of the client must also be kept in mind.