I represent several co-defendants, and one privately told me she violated a court order by taking the disputed funds (then replaced them on my advice). Must I disclose that under Rule 1.6, and does it create a conflict under Rule 1.7?

Plain-English summary

The inquiring attorney represented Defendant X and her four siblings in an action brought by the administrator of an estate, which alleged that all six defendants (including the defendants' mother, Defendant Y, who was separately represented) committed conversion and fraud with respect to the decedent's bank accounts. After a court order barred the defendants from disposing of funds they had received from the decedent's accounts, Defendant X violated the order by appropriating funds to her own use, then, on the attorney's advice, replaced them. The attorney asked whether he or she had to disclose Defendant X's actions to a tribunal or the co-defendants, and whether continuing to represent all defendants created a conflict.

On the first question, the Panel answered no. It set out Rule 1.6's confidentiality command and concluded that the information about Defendant X's actions was protected under Rule 1.6, subject to limited exceptions not applicable here, so the attorney could not disclose it to the court or the co-defendants.

On the second question, the Panel applied Rule 1.7(b) ("Conflict of Interest: General Rule"), which bars representing a client when the representation may be materially limited by responsibilities to another client absent reasonable belief the representation will not be adversely affected and the client's consent after consultation. The Panel explained that Rule 1.7(b) addresses the simultaneous representation of co-parties and requires either declining or withdrawing where a conflict arises. Because the attorney received the information from Defendant X after the representation began, once that information became discoverable in a deposition or during litigation the attorney had to determine whether the multiple representation would adversely affect the remaining defendants, and if so, the attorney had to withdraw under Rule 1.7.

Currency note

This opinion was issued in 1996 (Opinion 96-08, issued May 16, 1996), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.6 and 1.7 as they stood at the time. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which reorganized Rule 1.7's conflict standard. 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: A co-defendant admitted wrongdoing to me privately. Must I tell the court or the other defendants?

A: The Panel said no. The admission was information relating to the representation, protected by Rule 1.6, and no exception applied, so the attorney could not disclose it to the court or the co-defendants.

Q: Does representing multiple co-defendants create a conflict here?

A: It can. The Panel applied Rule 1.7(b) and said that once the information became discoverable, the attorney had to assess whether the joint representation would adversely affect the remaining defendants.

Q: What must the lawyer do if a conflict arises?

A: Withdraw. The Panel held that if the attorney believes a conflict has arisen, the attorney must withdraw from the representation.

Background and rules framework

The opinion interprets Rhode Island Rules of Professional Conduct 1.6 (confidentiality of information) and 1.7 (conflict of interest: general rule), the analogs of Model Rules 1.6 and 1.7. The Panel kept the two duties distinct: Rule 1.6 barred disclosure of the co-defendant's admission, while Rule 1.7(b) governed whether the shared representation could continue, requiring withdrawal if the co-clients' interests diverged.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / RI RPC 1.6 (confidentiality of information)
• MR 1.7 / RI RPC 1.7(b) (conflict of interest; material limitation in representing co-parties)

Other references:

• Hazard & Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct, p. 140.2 (1986)

See also

• RI EAP Opinion 91-23: cannot represent co-defendants once evidence exculpates one under Rule 1.7
• RI EAP Opinion 96-06: no duty to report an opposing guardian's violation of a court order 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%2096-08.pdf

Original opinion text

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

ETHICS ADVISORY PANEL
OPINION 96-08, - REQUEST 647
ISSUED - May 16, 1996

Facts:

The inquiring attorney represents Defendant X and her four siblings in an action brought against them by the administrator of an estate. Defendant Y, the mother of the defendants, is represented by a separate attorney. The Plaintiff, administrator, alleges that all six defendants committed conversion and fraud with respect to the decedent's bank accounts.

Defendant Y was related to the Decedent and cared for her during her lifetime. Decedent placed Defendant Y's name on various bank accounts and gave her power of withdrawal. After the Decedent passed away, Defendant Y disbursed the funds from the joint accounts to her children as gifts. Thereafter, a Court order was entered prohibiting the Defendants from disposing of any of the funds given to them from the Decedent's bank accounts.

Defendant X violated the Court Order and informed the inquiring attorney that she appropriated the funds to her own use but, on the attorney's advice, has replaced it.

Issues Presented:

1) Must the inquiring attorney disclose Defendant X's actions to a tribunal and/or her co-defendants? 2) Does the inquiring attorney have a conflict of interest in continuing to represent all the defendants?

Opinion:

1) No, the information is protected under Rule 1.6. 2) If the attorney believes a conflict has arisen, then he/she must withdraw from the representation.

Reasoning:

A fundamental principle in the client-lawyer relationship is that the lawyer safeguard the confidentiality of information relating to the representation. Rule 1.6 states in part:

(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 confidentiality rule is subject to limited exceptions not applicable under these circumstances. The information about Defendant X's actions is protected under Rule 1.6 and the inquiring attorney cannot disclose the information to the court or the other co-defendants.

Rule 1.7 entitled "Conflict of Interest: General Rule" is the pertinent rule to this inquiry. That Rule states the following:

1.7(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless,

(1) the lawyer reasonably believes the representation will not be adversely affected; and

(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

Rule 1.7(b) addresses the simultaneous representation of co-parties. It applies to conflicts that may arise, even if only indirectly. The rule operates to require either refusal to accept a matter or withdrawal from a representation that has commenced.

See, The Law of Lawyering: A Handbook on The Model Rules of Professional Conduct, Hazard & Hodes, p. 140.2 (1986).

In this case, the lawyer received the information from Defendant X after the representation commenced. Once that information becomes discoverable either in a deposition or during litigation, the inquiring attorney must determine whether the multiple representation will adversely affect the remaining defendants. If so, the lawyer must withdraw under Rule 1.7.