I rent office space from Lawyer A and agreed to represent his former client before a zoning board where Lawyer A was a witness. The client now hints at a malpractice claim against Lawyer A. Can I condition my continued representation on the client releasing Lawyer A?

Plain-English summary

The inquiring attorney rents office space from Lawyer A; they are not partners or associates and do not hold themselves out as such. Lawyer A had advised a client on the purchase of two vacant lots and searched the title, but the client and seller signed the purchase and sale agreement without first telling Lawyer A its terms. After the client obtained building permits and a neighbor appealed them to the zoning board, Lawyer A expected to be a witness and referred the client to the inquiring attorney, who agreed to represent the client before the zoning board with Lawyer A testifying about the title work. The zoning board ruled against the client. The client then indicated that if the seller would not rescind the agreement he might look to Lawyer A for damages, at which point both lawyers said a conflict had arisen and neither wished to continue. The next day the client said he had misspoken and wanted both lawyers to continue; Lawyer A was willing only if the client signed a release of any malpractice claim.

The inquiring attorney first asked whether he may decline to continue representing the client unless the client releases Lawyer A. The panel pointed to the provision permitting a lawyer to limit the objectives of representation only if the client consents after consultation, and to the comment stating that a client may not be asked to agree to a representation so limited in scope as to violate the competence rule, or to surrender the right to terminate the lawyer's services or to settle. The panel took the position that the inquiring attorney may not condition his continued representation on the client's release of Lawyer A, because doing so would impermissibly circumscribe the client's options and compromise the quality of the representation, contrary to Rule 1.1.

On the attorney's second and third questions (whether he or Lawyer A may draft the release, and whether the client must see another attorney to draft it), the panel took a consistent position: it is impermissible to condition continued representation on the release, or to agree to the client limiting his future options in that way, and the identity of the drafter of any release is not pertinent. On the fourth question, the panel held under Rule 1.4(b) that the attorney may properly condition his continued representation on the client obtaining advice from independent counsel, because requiring impartial advice may be the only way to ensure the client can make the requisite informed decision. On the final question, the panel held that even if independent counsel advises the client that Lawyer A was not negligent, the attorney still may not condition continued representation on the client's release of Lawyer A.

Currency note

This opinion was issued in September 1990, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which amended the rules addressed here. 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 a lawyer require a client to release a prior lawyer from malpractice as a condition of continued representation?

A: Under this opinion, no. The panel held that conditioning continued representation on such a release would impermissibly circumscribe the client's options and compromise the quality of representation, contrary to Rule 1.1.

Q: Does it matter who drafts the release?

A: No. The panel held that because conditioning representation on the release is itself impermissible, the identity of the drafter is not pertinent.

Q: Can the lawyer instead require the client to get independent legal advice?

A: Yes. The panel held under Rule 1.4(b) that the attorney may condition continued representation on the client obtaining advice from independent counsel, since impartial advice may be the only way to ensure an informed decision.

Q: What if the independent lawyer says the prior lawyer was not negligent?

A: The panel held that this does not change the analysis; the attorney still may not condition continued representation on the client's release of the prior lawyer.

Background and rules framework

The opinion applies Rule 1.1 (competence), the limited-scope provision permitting a lawyer to limit the objectives of representation with the client's consent (Rule 1.2(c)) together with the comment to Rule 1.2, and Rule 1.4 (communication) of the Rhode Island Rules of Professional Conduct, adopted effective November 15, 1988, to a lawyer's proposed conditions on continuing to represent a client with a potential malpractice claim against a related lawyer.

Citations and references

Rules of Professional Conduct:

• MR 1.1 (competence)
• MR 1.2 (scope of representation; limiting objectives)
• MR 1.4 (communication)
• RI RPC 1.1, 1.2(c), 1.4(b), as adopted November 15, 1988

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 90-31: A Client May Not Be Asked to Surrender the Right to Discharge Counsel
• RI EAP Op. 2013-05: A Lawyer's Obligations When a Malpractice Issue Arises

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%2090-37.pdf

Original opinion text

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

DIGEST OF ETHICS ADVISORY PANEL
Opinion #90-37, Request #116
Issued September 18, 1990

An attorney seeks Panel advice as to the proper course of conduct under the circumstances he describes.

The attorney advises the Panel that he rents office space from Lawyer A. He and Lawyer A are not partners or associates and do not hold themselves out as partners or associates. The attorney states that a client ("Client") consulted with Lawyer A regarding the purchase of two vacant lots. The attorney states that Lawyer A advised Client that the purchase and sale agreement must provide that the lots are, in fact, "legal non-conforming" lots. Client and the seller drafted and signed a purchase and sale agreement but failed to advise Lawyer A of the terms until after the agreement was signed by both Client and the seller.

The attorney indicates that Lawyer A searched the title for Client. Client purchased the lots and then applied for and received two building permits. A neighbor appealed the issuance of the permits to the local zoning board.

The attorney states that when Lawyer A was advised of the appeal of the building permits, he was convinced that he would be a witness at the zoning hearing. At his suggestion Client consulted with the inquiring attorney. The inquiring attorney agreed to represent Client before the zoning board and to consult with him on all matters affecting the proceeding before the zoning board. The inquiring attorney and Client agreed that Lawyer A would testify as a witness regarding the title examination he had performed. The zoning board ruled against Client.

When the inquiring attorney met with Client, Client indicated that if the seller did not agree to rescind the agreement then he, Client, might look to Lawyer A for damages. At this point both the inquiring attorney and Lawyer A advised Client that a conflict had arisen and that neither wished to be involved in the case anymore.

The inquiring attorney states that Client telephoned him the next day and told him that he misspoke and that he wished both the inquiring attorney and Lawyer A to continue to represent him. Lawyer A was unwilling to do so without obtaining a release from Client releasing him from any claim for malpractice arising out of the purchase of the property. The inquiring attorney met privately with Client and told Client that he was concerned that Client would feel that the attorney's loyalty was compromised by the attorney's friendship with Lawyer A and the fact that he was Lawyer A's tenant. The attorney states that he also advised Client that he would not offer an opinion as to Lawyer A's liability and in no event would he take a position adversarial to Lawyer A. The inquiring attorney advises the Panel that he does not believe Lawyer A committed malpractice but that he didn't share this opinion with Client. The inquiring attorney advised Client that he was willing to continue representing him on the condition that Client get independent advice from an independent attorney regarding Attorney A's liability. Client again told the inquiring attorney that he misspoke and that he would sign a release in favor of Lawyer A. Client asked the inquiring attorney to draft a release. The inquiring attorney states that he told Client that his relationship with Lawyer A precluded him from drafting the release. Client asked him to negotiate a settlement with the seller. The inquiring attorney suggested that Client negotiate directly with the seller and explained that he could offer no advice on settlement since Client might later view any settlement advice as tainted by the inquiring attorney's relationship with Lawyer A.

The inquiring attorney first asks the Panel if he may decline to represent Client unless Client releases Lawyer A.

Rule 1.1, titled "Competence", provides:

(c) A lawyer may limit the objectives of the representation if the client consents after consultation.

The comment to Rule 1.2 provides, in pertinent part:

An agreement concerning the scope of representation must be in accord with the Rules of Professional Conduct and other law. Thus, the client may not be asked to agree to representation so limited in scope as to violate Rule 1.1, or to surrender the right to terminate the lawyer's services or the right to settle litigation that the lawyer might wish to continue.

The Panel takes the position that the inquiring attorney may not condition his continued representation of Client on Client's release of Lawyer A from liability. To do so would impermissibly circumscribe Client's options and compromise the quality of the representation, contrary to Rule 1.1.

The attorney's second question is whether he or Lawyer A may draft a release for Client to sign releasing Lawyer A. His third question is whether Client must see another attorney to draft the release. With regard to both questions the Panel takes a position consistent with the foregoing discussion. It is impermissible for the attorney to condition his continued representation of Client on his release of Lawyer A or, indeed, to agree to Client limiting his future options in that way. The identity of the drafter of the release is not pertinent.

The attorney's fourth question is whether he may decline to represent Client unless Client consults with independent counsel regarding the liability, if any, of Lawyer A. Rule 1.4 titled "Communication," provides, in pertinent part that

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

Since requiring a client to obtain additional, impartial advice may be the only means of ensuring that a client will be able to make the requisite informed decision, the Panel takes the position that the attorney may properly condition his continued representation of Client on Client obtaining advice from independent counsel.

The attorney's final question is whether he may condition his continued representation of Client on Client's release of Lawyer A if independent counsel advises Client that Lawyer A was not negligent. The fact that Client reports to the inquiring attorney that another attorney has told him that Lawyer A was not negligent does not change the Panel's position, articulated above. For the inquiring attorney to agree to Client's release of Attorney A in connection with his continued representation of Client is impermissible.

Ethics Advisory Panel advice is protective in nature. There is no requirement that an attorney abide by a Panel opinion, but if he or she does, he or she is fully protected from any charge of impropriety.