A clerical error at the Supreme Court means my opponent's appeal is not on record, which helps my client. May I tell my client, and must I alert the tribunal or opposing counsel to the mistake?

Plain-English summary

The inquiring attorney represented client C in a real estate dispute involving two consolidated lawsuits (A v. B and C v. A). After trial and a decision, A appealed, filing two notices of appeal. A and B then settled and stipulated to "withdraw all appeals." Although it was unclear whether A intended to withdraw the appeal in C v. A, the attorney learned from the Supreme Court clerk that the Court had no record of any appeal in C v. A. That the appeal was technically not pending was in the attorney's client's best interest, and the attorney believed that bringing the mistake to light might reinstate the appeal as a "clerical error." The attorney asked whether he or she could tell the client that all appeals were dismissed, and whether he or she was obligated to inform the tribunal or opposing counsel of the clerical error.

On the first question, the Panel answered yes: a lawyer is obligated to keep a client informed about the status of a case. It cited ABA Model Rule 1.4 and set out Rule 1.4(a), which requires a lawyer to keep a client reasonably informed about the status of a matter and to comply promptly with reasonable requests for information. The Panel stated the attorney would not violate any rule by informing the client about the appeals and the alleged errors.

On the second question, the Panel answered yes, grounding it in the Preamble to the Rules of Professional Conduct rather than a specific rule addressing clerical issues. It quoted the Preamble's statements that a lawyer should avoid even the appearance of professional impropriety, should use the law's procedures only for legitimate purposes, and should demonstrate respect for the legal system and those who serve it. The Panel concluded that good practice would dictate that the attorney notify opposing counsel of the clerical error.

Currency note

This opinion was issued in 1996 (Opinion 96-10, issued June 13, 1996), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.4 and the Preamble 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. 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: Can I tell my client that the other side's appeal is no longer on record?

A: Yes. The Panel said a lawyer is obligated under Rule 1.4 to keep the client reasonably informed about the status of the matter, and the attorney would not violate any rule by informing the client of the appeals and alleged errors.

Q: Must I alert opposing counsel to a court clerical error that helps my client?

A: The Panel answered yes on this inquiry. Absent a rule directly addressing clerical issues, it relied on the Preamble's respect-for-the-legal-system principle and concluded that good practice dictates notifying opposing counsel.

Q: Which rule required disclosure of the error?

A: The Panel identified no specific rule on clerical errors. It rested the notification point on the Preamble's general principles rather than a discrete disclosure rule.

Background and rules framework

The opinion interprets Rhode Island Rule of Professional Conduct 1.4 (communication), the analog of Model Rule 1.4, and the Preamble to the Rules of Professional Conduct. Rule 1.4 supplied the duty to keep the client informed; the Preamble's aspirational principles of fairness and respect for the legal system supplied the Panel's guidance on notifying opposing counsel of the clerical error.

Citations and references

Rules of Professional Conduct:

• MR 1.4 / RI RPC 1.4 (communication; keeping the client reasonably informed)
• Preamble to the RI Rules of Professional Conduct (respect for the legal system; appearance of impropriety)

Cases:

• The Florida Bar v. Peterman, 306 So. 2d 484 (Fla. 1975), duty to advise clients of the status of their affairs

Other references:

• ABA/BNA Lawyers' Manual on Professional Conduct, 31:502, 31:504 (1984)

See also

• RI EAP Opinion 96-06: no duty to report an opposing guardian's violation of a court order under Rule 1.6
• RI EAP Opinion 90-04: duty to report opposing counsel's improperly notarized affidavits

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%2096-10.pdf

Original opinion text

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

ETHICS ADVISORY PANEL
OPINION 96-10, - REQUEST # 649
ISSUED - JUNE 13, 1996

FACTS:

The inquiring attorney is representing a client, C, who is involved in a real estate dispute with two other parties. There are two law suits involved: A versus B, and C versus A.

After much litigation, the inquiring attorney moved to consolidate the two actions in Superior Court where they were tried and a decision entered. A appealed the judge's decision and filed two notices of appeal, designating each action as separate. A and B settled their case and entered a stipulation that "withdrew all appeals." Although it is unclear whether A intended to withdraw the appeal in the matter C vs A, the inquiring attorney later learned from the Supreme Court clerk that the Supreme Court never had any record of an appeal in the matter of C vs. A. The fact that there is technically no appeal pending is in the inquiring attorney's client's best interest. The attorney believes that if he/she brings the mistake to light the appeal may be reinstated because of the "clerical error."

ISSUES PRESENTED:

The inquiring attorney asks 1) whether he/she can inform the client that all appeals were dismissed and 2) whether he/she is obligated to inform either the tribunal or opposing counsel of this "clerical error."

OPINION:

1.) Yes. A lawyer is obligated to keep a client informed regarding the status of a case.
2.) Yes. A lawyer should demonstrate respect for the legal system and for those who serve it.

REASONING:

A lawyer has an obligation to keep a client informed concerning matters undertaken on the client's behalf. ABA Model Rule 1.4. See, ABA/BNA Lawyers' Manual on Professional Conduct, 31:502 (1984). A duty to communicate means the lawyer must advise clients as to the status of their affairs, ABA/BNA Manual, 31:504 citing The Florida Bar v. Peterman, 306 So. 2d 484 (Fla. 1975).

Rule 1.4 entitled "Communication" states:

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

The Panel believes that the inquiring attorney would not be violating any ethical rule of professional conduct if he/she informs the client about the appeals and the alleged errors committed.

Absent a rule that directly addresses "clerical issues," the Panel believes strongly in the principal of fairness to others and respect for the legal system. The Preamble to the Rules of Professional Conduct address the issue of professional impropriety. The Preamble states in part:

A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs. A lawyer should avoid even the appearance of professional impropriety. A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials.

The Panel believes that good practice would dictate that the inquiring attorney should notify opposing counsel regarding the clerical error.