My client's personal-injury settlement was supposed to pay a creditor who had a body attachment, but the client won't pay. Can I tell the creditor's lawyer the case settled, without the client's consent?

Plain-English summary

The attorney represented a client in a personal-injury claim. During the claim, the client was served with a body attachment by a creditor. An associate of the attorney and the creditor's attorney agreed that the creditor would be paid from the proceeds of the client's personal-injury claim, directly from the client's fund to the creditor's attorney. The case settled and the client received the sum to which he was entitled, but the creditor was never paid. The attorney advised the client to pay the creditor, but the client failed to do so. The attorney sought to inform the creditor's attorney of the situation without the client's consent.

The opinion first notes that the situation appears to involve past conduct regarding the attorney's duties under Rule 1.15 (Safekeeping Property), a matter the Panel may decline to opine on under Rule 2(d) of its rules. Notwithstanding that, the Panel opines that the attorney may inform the creditor's attorney, because the information is not protected under Rule 1.6. Under Rule 1.6(a), a lawyer shall not reveal information relating to representation absent client consent except for disclosures impliedly authorized to carry out the representation. The opinion concludes that the fact the case settled and the client was paid is a disclosure impliedly authorized to carry out the representation, so client consent is not necessary to disclose it to the creditor's attorney.

In practice

Under this opinion, the specific facts the attorney wants to convey -- that the case settled and the client was paid -- fall within Rule 1.6's implied-authorization exception, given the earlier agreement to pay the creditor from the settlement proceeds. The opinion frames the disclosure as impliedly authorized to carry out the representation, and separately flags that the underlying Rule 1.15 handling is past conduct it could have declined to address under Rule 2(d).

Common questions

Q: Can a lawyer tell a creditor's attorney that the client's case settled, without the client's consent?

A: Yes. The opinion concludes the disclosure is impliedly authorized to carry out the representation and is not protected under Rule 1.6.

Q: Why is client consent not required here?

A: The opinion reasons that the fact the case settled and the client was paid is impliedly authorized disclosure, given the prior agreement to pay the creditor from the settlement proceeds.

Q: Did the Panel resolve the Rule 1.15 handling of the funds?

A: No. The opinion notes that aspect involves past conduct it may decline to address under Rule 2(d), and it addressed only the disclosure question.

Background and rules framework

The opinion interprets Rhode Island Rule of Professional Conduct 1.6, the analog of Model Rule 1.6, governing confidentiality of information. Rule 1.6(a) bars revealing information relating to the representation absent client consent, except for disclosures impliedly authorized to carry out the representation. The opinion references Rule 1.15 (Safekeeping Property) as the source of the underlying, past-conduct duties, and Panel Rule 2(d) as a basis on which it could decline to opine on past conduct.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / RI RPC 1.6 (confidentiality of information; impliedly authorized disclosures)
• RI RPC 1.15 (safekeeping property; referenced as the source of the underlying duties)

See also

• RI EAP Opinion 93-10: confidentiality bars disclosing a client's possible fraud to new counsel under 1.6
• RI EAP Opinion 93-37: successor and predecessor fee divided by quantum meruit under 1.5

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%2093-45.pdf

Original opinion text

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

(FINAL)
ETHICS ADVISORY PANEL
OPINION #93-45, REQUEST #398
Issued August 25, 1993

An attorney represented a client in a claim for personal injuries. During the pendency of the claim, the client was served with a body attachment by a creditor. Subsequently, an agreement was made between an associate of the attorney and the creditor's attorney wherein the creditor would be paid from the proceeds of the client's personal injury claim. Payment was to be made directly from the client's fund to the creditor's attorney. Thereafter, the case was settled and the client received the sum to which he was entitled. However, the creditor was never paid. The attorney has advised the client to pay the creditor the amount agreed upon, but the client has failed to do so. The attorney now seeks to inform the creditor's attorney of this situation without the client's consent.

At the outset, the Panel notes that this situation apparently involves past conduct with respect to the attorney's duties under Rule 1.15 (Safekeeping Property) and therefore appears to be a matter the Panel may decline to opine pursuant to Rule 2(d) of the Rules of the Ethics Advisory Panel. That notwithstanding, the Panel is of the opinion that the attorney may inform the creditor's attorney of the situation because the information is not protected under Rule 1.6. The Rule provides in pertinent part as follows:

Rule 1.6. Confidentiality of Information.

(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.

The fact that the case was settled, and the client was paid, is a disclosure that is impliedly authorized in order to carry out representation. Accordingly, the Panel concludes client consent is not a prerequisite necessary in order to disclose the information to the creditor's attorney.