Two beneficiaries told me in confidence that they fraudulently got witnesses to sign a will now headed to probate elsewhere. Must I disclose the fraud to that probate court or their new lawyer?

Plain-English summary

Two beneficiaries advised the inquiring attorney that they had fraudulently obtained witnesses' signatures on a will. The attorney pledged to keep the information confidential, told them their actions constituted fraud, and suggested they reconsider offering the document for probate. The will was to be probated in a foreign jurisdiction, and the beneficiaries had retained another lawyer to handle the matter. The attorney asked whether he had an obligation to disclose the information to the probate court in the foreign jurisdiction or to the lawyer the beneficiaries retained.

The Panel started with Rule 1.2(d), which barred counseling or assisting a client in conduct the lawyer knows is criminal or fraudulent. Its Comment provided that when the client's course of action has already begun, the lawyer is not permitted to reveal the client's wrongdoing except where permitted by Rule 1.6. Here, the Panel found the beneficiaries' conduct had begun before their meeting with the attorney, so unless Rule 1.6 permitted disclosure, the attorney could not reveal the information.

The Panel then reviewed Rule 1.6, which barred revealing information relating to the representation absent client consent, with narrow exceptions in Rule 1.6(b) (to prevent a criminal act likely to result in imminent death or substantial bodily harm, or to establish a claim or defense for the lawyer). Finding no exception applicable, the Panel concluded the attorney could not disclose the information to the probate court or to the lawyer representing the beneficiaries, citing its Opinion 92-1.

Currency note

This opinion was issued in 1993 (Opinion 93-94, issued December 8, 1993), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.2 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 broadened the Rule 1.6(b) exceptions (including disclosure to prevent or rectify client fraud in certain circumstances). 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 Treat this page as historical context, not current guidance.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: If a client admits committing fraud, may the lawyer report it to the court?

A: Under this 1993 opinion, no. The Panel concluded that because the conduct had already begun and no Rule 1.6(b) exception applied, the attorney could not disclose the information to the probate court or the beneficiaries' lawyer.

Q: Why did Rule 1.2(d) not require disclosure?

A: The Panel read Rule 1.2(d)'s Comment to say that once the client's course of action has begun, the lawyer is not permitted to reveal the wrongdoing except as Rule 1.6 permits.

Q: Which Rule 1.6(b) exceptions did the Panel consider?

A: The exception to prevent a criminal act likely to cause imminent death or substantial bodily harm, and the exception to establish a claim or defense for the lawyer; the Panel found neither applied.

Background and rules framework

The opinion interprets Rhode Island Rules of Professional Conduct 1.2(d) (scope of representation; no assisting criminal or fraudulent conduct) and 1.6 (confidentiality of information), the state analogs of the corresponding Model Rules. Rule 1.2(d)'s Comment tied the lawyer's disclosure options, once conduct has begun, to Rule 1.6. Rule 1.6(a) barred revealing information relating to the representation absent consent, and Rule 1.6(b) supplied narrow exceptions that the Panel found inapplicable on these facts.

Citations and references

Rules of Professional Conduct:

• MR 1.2 / RI RPC 1.2(d) (no counseling or assisting criminal or fraudulent conduct)
• MR 1.6 / RI RPC 1.6(a), (b) (confidentiality of information; exceptions)

Other opinions cited:

• RI EAP Opinion 92-1 (Issued January 14, 1992)

See also

• RI EAP Opinion 93-84: client forgery, confidentiality, and returning documents on withdrawal under Rule 1.6
• RI EAP Opinion 93-02: a subpoenaed lawyer invokes privilege but obeys a final court order under Rule 1.6

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%2093-94.pdf

Original opinion text

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

FINAL

ETHICS ADVISORY PANEL
OPINION #93-94 REQUEST #438
Issued December 8, 1993

The inquiring attorney was advised by two (2) beneficiaries that they fraudulently obtained witnesses' signatures on a will. The inquiring attorney pledged to keep this information confidential and advised them that their actions constituted fraud and further suggested that they reconsider offering the document for probate. The will is to be probated in a foreign jurisdiction and the beneficiaries have retained another lawyer to handle the matter. The inquiring attorney asks whether he/she has an obligation to disclose the information to the probate court in the foreign jurisdiction or to the attorney retained by the beneficiaries.

Rule 1.2(d) has bearing on the issue raised by this inquiry and provides as follows:

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

The Comment to the Rule further explains that

"[w]hen the client's course of action has already begun, the lawyer's responsibility is especially delicate. The lawyer is not permitted to reveal the client's wrongdoing, except where permitted by Rule 1.6. (emphasis added)

In this case, the beneficiaries' conduct had begun prior to their meeting with the inquiring attorney. Thus, unless otherwise permitted by Rule 1.6, the inquiring attorney may not reveal the information.

Rule 1.6 provides as follows:

(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, and except as stated in paragraph (b).

(b) A lawyer may, but is not obligated to, reveal such information to the extent the lawyer reasonably believes necessary:

(1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; or

(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client.

Under these facts, the Panel does not believe that an exception is applicable. Accordingly, the inquiring attorney may not disclose the information either to the probate court or to the lawyer representing the beneficiaries. See, Opinion #92-1 (Issued January 14, 1992).