My new client's former lawyer let the case be dismissed by ignoring discovery. Must I report that lawyer to the disciplinary office, even though my client could lose the ability to collect on a malpractice claim?

Plain-English summary

The inquiring attorney represented a client in a matter currently in litigation. The client's previous attorney (Attorney #1) had failed to respond to discovery and trial calendars and had allowed the case to be dismissed without the client's consent. The court had twice asked the inquiring attorney whether he or she knew if the client had filed a disciplinary action. The inquiring attorney did not believe Attorney #1 had malpractice insurance and believed that if a complaint were filed, the client's ability to collect a judgment against Attorney #1 would be adversely affected. The attorney asked whether he or she must report Attorney #1 to the Disciplinary Office and, if so, whether the attorney would be protected from being sued by the client for not diligently representing the client's interests.

The Panel set out Rule 8.3 ("Reporting Professional Misconduct"). Rule 8.3(a) requires 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 to inform the appropriate professional authority. Rule 8.3(c) provides that the rule does not require disclosure of information otherwise protected by Rule 1.6.

Applying the rule, the Panel opined that if the inquiring attorney has knowledge that a rule violation has occurred by another attorney raising a substantial question as to that lawyer's honesty, trustworthiness, or fitness, then he or she must report the attorney to the Disciplinary Office. It added that an attorney is not required to report conduct where reporting would violate Rule 1.6, but that a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client's interest, citing the Comments to Rule 8.3 and In re Ethics Advisory Panel #92-1. As to whether reporting would protect the attorney from a client suit, the Panel declined to render advice, because an opinion would require resolving questions of substantive law outside the area of legal ethics and discipline, citing Rule 2(g) of the Rules of the Rhode Island Supreme Court Ethics Advisory Panel.

Currency note

This opinion was issued in 1994 (Opinion 94-54, issued August 25, 1994), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 8.3 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 amended these rules. 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: Must I report another lawyer whose neglect got my client's case dismissed?

A: The Panel opined that if the attorney has knowledge of a rule violation raising a substantial question as to the other lawyer's honesty, trustworthiness, or fitness, the attorney must report it to the Disciplinary Office under Rule 8.3(a).

Q: What if reporting would reveal confidential client information?

A: Rule 8.3(c) does not require disclosure of information protected by Rule 1.6; the Panel added that a lawyer should encourage the client to consent to disclosure where prosecution would not substantially prejudice the client's interest.

Q: Does reporting protect me from being sued by my client?

A: The Panel declined to answer, stating the question would require resolving substantive law outside legal ethics and discipline under its Rule 2(g).

Background and rules framework

The opinion interprets Rhode Island Rules of Professional Conduct 8.3 (reporting professional misconduct) and 1.6 (confidentiality of information), the analogs of Model Rules 8.3 and 1.6. Rule 8.3(a) imposes a mandatory reporting duty for violations raising a substantial question about honesty, trustworthiness, or fitness; Rule 8.3(c) preserves the Rule 1.6 confidentiality limit. The Panel applied both and invoked its own jurisdictional rule to decline the malpractice-protection question.

Citations and references

Rules of Professional Conduct:

• MR 8.3 / RI RPC 8.3(a), (c) (reporting professional misconduct; mandatory report subject to the Rule 1.6 exception)
• MR 1.6 / RI RPC 1.6 (confidentiality of information)

Other opinions cited:

• In re Ethics Advisory Panel #92-1 (encouraging client consent to disclosure where prosecution would not substantially prejudice the client)

See also

• RI EAP Opinion 94-52: government summons for client records under Rule 1.6
• RI EAP Opinion 94-38: subpoenaed lawyer's duties under Rule 1.6

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%2094-54.pdf

Original opinion text

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

ETHICS ADVISORY PANEL
OPINION #94-54 REQUEST #524
Issued August 25, 1994

The inquiring attorney represents a client in a matter which is currently in litigation before a tribunal. The client's previous attorney, Attorney #1, failed to respond to discovery, trial calendars and allowed the case to be dismissed without the client's consent. The Court on two occasions inquired of the inquiring attorney whether or not he/she knew if a disciplinary action was filed by the client. The inquiring attorney does not believe that Attorney #1 has malpractice insurance and also believes that if a complaint is filed, the client's ability to collect a judgment against Attorney #1 will be adversely affected.

The attorney asks whether or not he/she must report Attorney #1 to the Disciplinary Office and, if so, would the inquiring attorney be protected from being sued by his/her client for not assiduously representing the client's interests.

Rule 8.3 entitled "Reporting Professional Misconduct" states 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.

If the inquiring attorney has knowledge that a rule violation has occurred by another attorney which raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer, then he/she must report the attorney to the Disciplinary Office. An attorney is not required to report actions which would be considered misconduct when the reporting would violate Rule 1.6 "however a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client's interest." See, Comments to Rule 8.3 and In Re Ethics Advisory Panel #92-1.

The inquiring attorney also asks if he/she will be protected from being sued by the client. The Panel declines to render any advise regarding this question because an opinion would require resolution of questions concerning substantive law outside the area of legal ethics and discipline. See, Rules of the Rhode Island Supreme Court Ethics Advisory Panel Rule 2(g).