I took over a case and found the referring lawyer made uncorrectable strategic errors. Do I have to tell my client, and can I tell the other lawyer about the mistakes under Rules 1.4 and 2.1?

Plain-English summary

The inquiring attorney, referred to as Attorney B, received a case referral from Attorney A after the matter was in the preliminary stages of litigation. Attorney B then discovered that Attorney A had made "fatal strategic and tactical errors" that could not be corrected. Attorney B asked what duties he or she had to disclose this information to the client and to Attorney A, and whether B had a duty to inform the client of potential claims against Attorney A.

The Panel set out Rule 1.4 ("Communication"), which requires a lawyer to keep a client reasonably informed about the status of a matter and to explain matters to the extent reasonably necessary to permit informed decisions, and Rule 2.1 ("Advisor"), which requires a lawyer to exercise independent professional judgment and render candid advice. The Panel quoted the Comments that a client should have sufficient information to participate intelligently in decisions and is entitled to straightforward advice expressing the lawyer's honest assessment, even where legal advice involves unpleasant facts.

Applying these rules, the Panel opined that Attorney B should inform the client of the pertinent circumstances that impact the lawsuit, because the attorney has a duty to protect and serve the client's interests. With regard to informing Attorney A about the strategic and tactical errors, the Panel opined that the inquiring attorney must acquire the consent of his or her client.

Currency note

This opinion was issued in 1994 (Opinion 94-70, issued September 28, 1994), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.4 and 2.1 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 Treat this page as historical context, not current guidance.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 tell my client that the prior lawyer made uncorrectable errors?

A: The Panel opined that the successor attorney should inform the client of the pertinent circumstances impacting the lawsuit, under Rules 1.4 and 2.1.

Q: Can I tell the referring lawyer about the mistakes?

A: The Panel opined that before informing the referring attorney of the errors, the inquiring attorney must acquire the client's consent.

Q: What rules require candor with the client here?

A: Rule 1.4 (communication) requires keeping the client reasonably informed, and Rule 2.1 (advisor) requires candid, independent advice, even on unpleasant facts.

Background and rules framework

The opinion interprets Rhode Island Rules of Professional Conduct 1.4 (communication) and 2.1 (advisor), the analogs of Model Rules 1.4 and 2.1. Rule 1.4 requires keeping the client informed enough to make decisions; Rule 2.1 requires candid, independent advice. The Panel applied both to require informing the client of the predecessor's errors, while conditioning any disclosure to the predecessor on client consent.

Citations and references

Rules of Professional Conduct:

• MR 1.4 / RI RPC 1.4 (communication)
• MR 2.1 / RI RPC 2.1 (advisor; candid advice)

See also

• RI EAP Opinion 94-54: duty to report a prior lawyer's misconduct under Rule 8.3
• RI EAP Opinion 94-62: no report of another lawyer without client consent under Rule 8.3

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%2094-70.pdf

Original opinion text

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

ETHICS ADVISORY PANEL
OPINION #94-70 REQUEST #541
Issued September 28, 1994

The inquiring attorney, hereinafter Attorney B, seeks the Panel advice regarding the following facts. Attorney A refers a case to Attorney B after the matter is in the preliminary stages of litigation. Thereafter Attorney B discovers that Attorney A made "fatal strategic and tactical errors" which cannot be corrected. Attorney B asks what are his/her duties to disclose this information to the client and Attorney A and whether B has a duty to inform the client of potential claims against Attorney A.

Rule 1.4 entitled "Communication" states that:

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

The comments to Rule 1.4 state that "[t]he client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so." Moreover, Rule 2.1 entitled "Advisor" states the following: "In representing a client, a lawyer shall exercise independent professional judgment and render candid advice . . ." The comments provide that "A client is entitled to straightforward advice expressing the lawyer's honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront."

Based upon the above quoted Rules, the Panel believes that Attorney B should inform the client of these pertinent circumstances which impact the lawsuit. The attorney has a duty to protect and serve the interests of his/her client. With regard to informing Attorney A about his/her strategic and tactical errors, the inquiring attorney must acquire the consent of his/her client.