My client's prior lawyer knew the client's accident was fraudulent. The client won't consent to my disclosing it. Must I still report that lawyer under Rule 8.3?

Plain-English summary

The inquiring attorney sought advice on the duty to maintain client confidentiality under Rule 1.6 and the duty to report attorney misconduct under Rule 8.3. The attorney was consulted by a client who had been involved in a fraudulent automobile accident; the client's original attorney was aware of the fraudulent circumstances. The inquiring attorney declined the case, informed the client of his duties under the law and of the attorney's duty to report another attorney's misconduct, and asked the client to consent to disclosure to the appropriate authorities. The client refused, fearing criminal prosecution.

The panel explained that Rule 8.3 requires a lawyer to inform the appropriate authorities of a violation of the rules unless the information is protected by Rule 1.6, and that the comments to Rule 8.3 say a report is not required where it would involve a violation of Rule 1.6, though a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client's interests. It quoted Rule 1.6(a), under which a lawyer shall not reveal information relating to representation unless the client consents after consultation, subject to the rule's exceptions, and noted the comments' principle that confidentiality encourages full and frank client communication even as to embarrassing or legally damaging matters.

The panel concluded the inquiring attorney acted responsibly in a delicate situation: he declined to represent the client once he knew of the fraudulent accident, because that representation would violate Rule 1.2(d), and he educated the client about the attorney's disclosure obligations. Because the client refused to consent to disclosure under Rule 1.6, the attorney is prohibited from revealing the information. The panel gave no opinion on the evidentiary law of attorney-client privilege, citing the comment to Rule 1.6.

In practice

Under this opinion, a lawyer who learns during a consultation that a prospective client's accident was fraudulent, and that a prior lawyer knew it, is bound by Rule 1.6 if the client refuses to consent to disclosure: the lawyer may not reveal the information, and Rule 8.3's reporting duty does not override that confidentiality. The opinion also treats declining the representation under Rule 1.2(d) and encouraging the client to consent as the responsible course.

Common questions

Q: Does the duty to report misconduct override client confidentiality?

A: Per the opinion, no; Rule 8.3 does not require reporting where doing so would violate Rule 1.6, so without the client's consent the attorney is prohibited from revealing the information.

Q: Should I ask the client to consent to disclosure?

A: Per the opinion, yes; the comments to Rule 8.3 say a lawyer should encourage a client to consent where prosecution would not substantially prejudice the client's interests, and the inquiring attorney did so.

Q: Was declining the fraudulent case the right call?

A: Per the opinion, the panel said the attorney acted responsibly in declining, because representing the client once he knew of the fraudulent accident would violate Rule 1.2(d).

Q: Does this opinion resolve attorney-client privilege?

A: Per the opinion, no; the panel gave no opinion on the evidentiary law of attorney-client privilege, citing the comment to Rule 1.6.

Background and rules framework

The opinion applies Rhode Island Rules 1.6 (confidentiality of information), 8.3 (reporting professional misconduct), and 1.2(d) (limitations on assisting client crime or fraud), corresponding to the same-numbered Model Rules. The panel read Rule 8.3(c) and its comments as subordinating the reporting duty to Rule 1.6, and applied Rule 1.6(a)'s consent requirement to bar disclosure the client refused to authorize.

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information)
• MR 8.3 (reporting professional misconduct)
• MR 1.2(d) (assisting client crime or fraud)
• RI RPC 1.6(a), 8.3(c), 1.2(d); comments to Rules 1.6 and 8.3

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 92-72: Reporting Opposing Counsel's Direct Contact With a Represented Client
• RI EAP Op. 90-05: Duty on Learning of a Lawyer's Fraud on Heirs
• RI EAP Op. 90-04: Duty to Report Opposing Counsel's Improper Affidavits

Currency note

This opinion was issued in 1992 (Opinion 92-80, issued November 18, 1992), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.6, 8.3, and 1.2 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 amended the confidentiality rule (including its exceptions) and the misconduct-reporting 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.

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%2092-80.pdf

Original opinion text

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

ETHICS ADVISORY PANEL
Opinion 92-80, Request #308
Issued November 18, 1992

An attorney seeks Panel advice regarding the duty to maintain client confidentiality pursuant to Rule 1.6 and the duty to report the misconduct of an attorney in light of Rule 8.3. An attorney represents a client who was involved in a fraudulent automobile accident. The client's original attorney was aware of the fraudulent circumstances surrounding this accident. Although the inquiring attorney declined this case, the attorney informed the client of his duties under the law and the attorney's duty to report misconduct of another attorney. The client refused the attorney's request that the client consent to the disclosure of this information to the appropriate authorities for fear of criminal prosecution. The attorney seeks advice regarding the duty to maintain confidentiality pursuant to Rule 1.6 and the duty to report misconduct under Rule 8.3.

Rule 8.3(c) entitled "Reporting Professional Misconduct" mandates that a lawyer shall inform the appropriate authorities whenever a violation of the Rules occurs unless otherwise protected by Rule 1.6. The comments to this Rule state that a report about misconduct is not required where it would involve violation of Rule 1.6. However, a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client's interests.

In addition, Rule 1.6 entitled "Confidentiality of Information" lends guidance to this inquiry. The Rule states that:

(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).

The comments to this Rule state that a fundamental principle in the client-lawyer relationship is that the lawyer maintain confidentiality of information relating to the representation. The client is thereby encouraged to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.

It appears to the Panel that the inquiring attorney has acted responsibly in this delicate situation. The attorney declined to represent the client once the attorney had knowledge of the fraudulent accident as that representation would violate Rule 1.2(d). The attorney educated the client regarding his duties under the law and also enlightened the client to the fact that the attorney is also under an obligation to disclose fraudulent activities by members of the bar. Since the client has refused to consent to the attorney's disclosure of the fraudulent accident pursuant to Rule 1.6, the attorney is prohibited from revealing this information. The Panel gives no opinion as to the rule of evidentiary law as to attorney-client privilege. See comment to Rule 1.6.