I saw records showing another lawyer wrote dozens of personal checks on a client trust account while a court had frozen the lawyer's assets. Do I have to report it to Disciplinary Counsel?

Plain-English summary

A client of the inquiring attorney had obtained a judgment against Attorney A. During collection proceedings, Attorney A was enjoined from alienating, concealing, or encumbering nonexempt property pending a hearing, and by court order produced records of the attorney's client trust account. According to the inquiring attorney, those records showed Attorney A had written "dozens of checks" on the trust account for personal expenditures of Attorney A and associates while the asset-freeze order was in effect. The inquiring attorney said the money spent did not belong to clients, and speculated that Attorney A had either spent earned fees or deposited non-client money into the trust account. The attorney asked whether Rule 8.3(a) required reporting Attorney A to Disciplinary Counsel for a possible violation of Rule 1.15, which requires keeping client funds separate from the lawyer's own.

The panel concluded that if the inquiring attorney had knowledge that Attorney A committed a rule violation raising a substantial question as to honesty, trustworthiness, or fitness as a lawyer, then the attorney had to report Attorney A to Disciplinary Counsel. The panel explained that whether another attorney's conduct raises such a substantial question involves determinations of credibility that are largely subjective, and that this determination is for the attorney who witnesses the conduct to make, not the panel.

Currency note

This opinion was issued in November 1997, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 8.3 and 8.4 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. 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 Treat this page as historical context, not current guidance.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: When is a lawyer required to report another lawyer's misconduct?

A: The opinion applied Rule 8.3(a): a lawyer who has knowledge that another lawyer committed a violation raising a substantial question as to that lawyer's honesty, trustworthiness, or fitness must inform the appropriate professional authority.

Q: Who decides whether the misconduct is serious enough to report?

A: The opinion concluded that the determination involves largely subjective credibility judgments and is to be made by the attorney who witnesses the conduct, not by the panel.

Q: What rule was Attorney A suspected of violating?

A: The inquiry framed the conduct as a possible violation of Rule 1.15, which requires a lawyer to keep clients' funds separate from the lawyer's own funds.

Background and rules framework

The opinion applied Rhode Island Rule of Professional Conduct 8.3(a) (Model Rule 8.3), which requires a lawyer with knowledge that another lawyer has committed a violation raising a substantial question as to honesty, trustworthiness, or fitness to inform the appropriate professional authority. The panel also quoted Rule 8.4 (misconduct), covering violations of the Rules and conduct involving dishonesty, fraud, deceit, or misrepresentation, and identified Rule 1.15 (safekeeping property) as the substantive rule at issue. It cited its own Opinion 95-43 for the point that the substantial-question determination is subjective and belongs to the witnessing attorney.

Citations and references

Rules of Professional Conduct:

• Model Rule 8.3 / RI RPC 8.3(a) (reporting professional misconduct)
• Model Rule 8.4 / RI RPC 8.4 (misconduct)
• Model Rule 1.15 / RI RPC 1.15 (safekeeping property; client trust funds)

Other opinions cited:

• RI EAP Op. 95-43 (1995): whether misconduct raises a substantial question is a subjective determination for the witnessing attorney

See also

• RI EAP Op. 98-12: Reporting a client threat against the lawyer
• RI EAP Op. 98-14: Splitting a contingent fee with a disbarred referring attorney

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%2097-22.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Final

RHODE ISLAND SUPREME COURT
ETHICS ADVISORY PANEL
Opinion No. 97-22, Request No. 731
Issued November 13, 1997

Facts:

A client of the inquiring attorney obtained a judgment against Attorney A. During judgment collection proceedings, Attorney A was enjoined from alienating, concealing, or encumbering any nonexempt property in his/her possession pending a hearing. Pursuant to a court order, Attorney A produced at the hearing records of his/her client's trust account. The inquiring attorney states that those records indicated that Attorney A wrote out "dozens of checks" drawn upon the trust account for personal expenditures of Attorney A and his/her associates while the order freezing his/her assets was in effect. The inquiring attorney further states that the money spent did not belong to clients, and speculates that Attorney A either spent money that had been earned as a fee, or deposited additional money into the clients' trust account that had never belonged to Attorney A's clients.

Issue Presented:

The inquiring attorney asks whether he/she has an obligation under Rule 8.3(a) to report Attorney A's con- duct to Disciplinary Counsel for Attorney A's possible violation of Rule 1.15 which requires a lawyer to keep cli- ents' funds separate from the lawyer's own funds.

Opinion:

If the inquiring attorney has knowledge that another attorney has committed a rule violation that raises a substantial question as to the lawyer's honesty, trustworthiness or fitness as a lawyer, then he/she must report the at- torney to Disciplinary Counsel.

Reasoning:

Rule 8.3(a) entitled "Reporting Professional Misconduct" states:

(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 hon- esty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropri- ate professional authority.
Final 97-22
Page 2

Rule 8.4 entitled "Misconduct" provides in pertinent part:

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustwor- thiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

For purposes of Rule 8.3(a), the determination as to whether another attorney has committed a violation of the Rules which raises a substantial question about that attorney's honesty, trustworthiness, or fitness to practice law is one which involves determinations of credibility that are largely subjective. See R. I. Sup. Ct. Ethics Advisory Panel No. 95-43 (1995). Such a determination is one to be made by the attorney who witnesses such con- duct and not by the Panel. Accordingly, if the inquiring attorney has knowledge that Attorney A has committed a rule violation that raises a substantial question as to the other attorney's honesty, trustworthiness, or fitness as a law- yer, then he/she must report the attorney to Disciplinary Counsel.