Opposing counsel dealt directly with my client in court about the settlement without me present. Do I have to report that Rule 4.2 violation, and does confidentiality limit me?

Plain-English summary

The inquiring attorney represented the wife in a divorce action and prepared and filed pleadings on her behalf, forwarding copies of all documents to Attorney X. Attorney X telephoned the inquiring attorney from Family Court to say the divorce was ready to proceed and that both spouses were present; the inquiring attorney says he never received notice of the court date. On the same call, the wife told the inquiring attorney she had agreed to a property settlement and felt he need not appear with her; the inquiring attorney says he never reviewed that settlement before the parties agreed. He later discovered the child-support payments ordered were below guidelines and the husband had understated the marital assets. He asked whether he may (or must) file a disciplinary complaint against Attorney X.

The panel said it appears Attorney X violated Rule 4.2 ("Communication with Person Represented by Counsel") by discussing the divorce, property settlement, and child support with the wife in court without the inquiring attorney present. The next issue was whether that violation must be reported under Rule 8.3 ("Reporting Professional Misconduct"). The panel quoted Rule 8.3(a), which requires a lawyer who knows another lawyer committed a violation raising a substantial question as to that lawyer's honesty, trustworthiness, or fitness to inform the appropriate professional authority, and Rule 8.3(c), which does not require disclosure of information protected by Rule 1.6. It noted that Rule 8.4(c) makes it misconduct to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, and that the reporting obligation is limited to serious offenses, requiring a measure of judgment; "substantial" refers to the seriousness of the possible offense, not the quantum of evidence.

The panel concluded that if the inquiring attorney believes his client was intentionally misled and defrauded by Attorney X, and that Attorney X violated Rule 4.2 in furtherance of the fraud, he is obligated to report the conduct under Rule 8.3. But because Rule 1.6(a) bars a lawyer from revealing information relating to a client's representation without the client's consent after consultation, to the extent the violation must be premised on such information the client's consent is required under Rule 1.6 before the inquiring attorney discloses it.

In practice

Under this opinion, an opposing lawyer's direct courtroom dealing with a represented party can constitute a Rule 4.2 violation, and where the inquiring lawyer believes that violation was committed in furtherance of an intentional fraud on his client, Rule 8.3 obligates him to report it. The opinion also holds that the reporting duty is constrained by Rule 1.6: to the extent the report would rest on information relating to the lawyer's own client's representation, the lawyer needs the client's consent after consultation before disclosing it.

Common questions

Q: Did the opposing lawyer violate the rules by dealing with my client directly in court?

A: Per the opinion, it appears Attorney X violated Rule 4.2 by discussing the divorce, property settlement, and child support with the represented wife without her counsel present.

Q: Do I have to report it?

A: Per the opinion, if the inquiring attorney believes his client was intentionally misled and defrauded and that the Rule 4.2 violation was in furtherance of that fraud, he is obligated to report the conduct under Rule 8.3.

Q: Does client confidentiality limit what I can report?

A: Per the opinion, yes; Rule 8.3(c) does not require disclosure of information protected by Rule 1.6, and to the extent the report rests on information relating to the client's representation, Rule 1.6 requires the client's consent after consultation.

Q: Does "substantial question" mean I need strong proof before reporting?

A: Per the opinion, "substantial" refers to the seriousness of the possible offense, not the quantum of evidence the lawyer is aware of.

Background and rules framework

The opinion applies Rhode Island Rules 8.3 (reporting professional misconduct), 8.4(c) (misconduct involving dishonesty or fraud), 4.2 (communication with a represented person), and 1.6 (confidentiality of information), corresponding to the same-numbered Model Rules. The panel read Rule 8.3(a)'s "substantial question" as a seriousness threshold requiring judgment, and read Rule 8.3(c) together with Rule 1.6(a) as conditioning disclosure that rests on client-representation information on the client's consent.

Citations and references

Rules of Professional Conduct:

• MR 8.3 (reporting professional misconduct)
• MR 8.4(c) (misconduct: dishonesty, fraud, deceit, misrepresentation)
• MR 4.2 (communication with person represented by counsel)
• MR 1.6 (confidentiality of information)
• RI RPC 8.3(a), 8.3(c), 8.4(c), 4.2, 1.6(a)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 90-04: Duty to Report Opposing Counsel's Improper Affidavits
• RI EAP Op. 90-05: Duty on Learning of a Lawyer's Fraud on Heirs
• RI EAP Op. 90-08: Cannot Contact a Represented Salesperson

Currency note

This opinion was issued in 1992 (Opinion 92-72, issued October 22, 1992), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 8.3, 8.4, 4.2, and 1.6 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 the confidentiality and misconduct-reporting 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.

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%2092-72.pdf

Original opinion text

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

ETHICS ADVISORY PANEL
Opinion 92-72, Request #297
Issued October 22, 1992

An attorney seeks Panel advice regarding the ethical propriety of filing a disciplinary complaint against another attorney pursuant to Rule 8.4.

The attorney represented the wife in a divorce action and prepared and filed pleadings on behalf of the wife. The attorney forwarded copies of all documents to Attorney X. Attorney X telephoned the attorney from Family Court stating that the divorce was ready to proceed and that the husband and wife were present. The inquiring attorney informs the Panel that notice of this court date was never received. In the same telephone call, the wife advised the inquiring attorney that she had agreed to a property settlement and felt that the inquiring attorney did not have to appear in court with her. The inquiring attorney informs the Panel that this settlement agreement was never reviewed by the attorney prior to the party's agreement. The attorney later discovered that the child support payments ordered were below guidelines and that the marital assets were understated by the husband.

In this situation, it appears that Attorney X violated Rule 4.2 entitled "Communication with Person Represented By Counsel." Attorney X discussed the divorce, property settlement and child support with the wife in court without the inquiring attorney present. The next issue is whether this violation of Rule 4.2 must be reported under 8.3 entitled "Reporting Professional Misconduct."

Rule 8.3 states that:

(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 honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6.

Rule 8.4(c) entitled "Misconduct" states that "It is professional misconduct for a lawyer to: engage in conduct involving dishonesty, fraud, deceit or misrepresentation." In addition this Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term "substantial" refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware.

The Panel agrees that if the inquiring attorney believes that his client was intentionally misled and defrauded by Attorney X, and that Attorney X violated Rule 4.2 in furtherance of the fraud, then the inquiring attorney is obligated to report such conduct pursuant to Rule 8.3. Rule 1.6(a) mandates that "a lawyer shall not reveal information relating to representation of a client unless the client consents after consultation." To the extent that the violation may be premised upon information relating to the inquiring attorney's representation of his client, the client's consent is required under Rule 1.6 for the inquiring attorney's disclosure of the information.