A prospective client's information makes me suspect their other lawyer broke several rules, but the client won't consent to disclosure. Must I report the other lawyer under Rule 8.3?

Plain-English summary

A client sought advice from the inquiring attorney about a fee agreement the client had entered into with a second attorney. Based on the contents of that fee agreement and other relevant facts the client disclosed, the inquiring attorney had a "strong suspicion" that the second attorney had violated a number of Rules of Professional Conduct. The inquiring attorney informed the client of these violations and encouraged the client to consent to their disclosure, but the client would not consent. The attorney asked whether he or she must report these violations under Rule 8.3 in light of Rule 1.6.

The Panel set out Rule 8.3 ("Reporting Professional Misconduct"). Rule 8.3(a) requires a lawyer with knowledge that another lawyer has committed a violation raising a substantial question as to that lawyer's honesty, trustworthiness, or fitness to inform the appropriate professional authority. Rule 8.3(c) provides that the rule does not require disclosure of information otherwise protected by Rule 1.6. The Panel quoted the Comment that a report is not required where it would involve a violation of Rule 1.6, though a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client's interests.

Applying Rule 8.3(c) and its Comment, the Panel opined that the attorney is not under an obligation to report the misconduct of another attorney, because the information is confidential and protected by Rule 1.6, citing Ethics Advisory Panel Opinion 92-1.

Currency note

This opinion was issued in 1994 (Opinion 94-62, issued August 25, 1994), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 8.3 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 these 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Must I report another lawyer's suspected misconduct if my client won't let me disclose?

A: The Panel concluded no. Because the information is protected by Rule 1.6 and the client refused to consent, Rule 8.3(c) relieves the attorney of the obligation to report.

Q: What should the lawyer do before concluding there is no duty?

A: The Panel noted the lawyer should encourage the client to consent to disclosure where prosecution would not substantially prejudice the client's interests; here the attorney did so and the client refused.

Q: How does this differ from a mandatory report?

A: Rule 8.3(a) mandates reporting serious violations, but Rule 8.3(c) carves out information protected by Rule 1.6; when the information is confidential and the client withholds consent, the report is not required.

Background and rules framework

The opinion interprets Rhode Island Rules of Professional Conduct 8.3 (reporting professional misconduct) and 1.6 (confidentiality of information), the analogs of Model Rules 8.3 and 1.6. Rule 8.3(a) imposes a reporting duty, but Rule 8.3(c) subordinates it to the Rule 1.6 confidentiality limit. The Panel applied the confidentiality carve-out where the client declined to consent to disclosure.

Citations and references

Rules of Professional Conduct:

• MR 8.3 / RI RPC 8.3(a), (c) (reporting professional misconduct; Rule 1.6 exception)
• MR 1.6 / RI RPC 1.6 (confidentiality of information)

Other opinions cited:

• RI EAP Opinion 92-1 (confidentiality limits on the duty to report)

See also

• RI EAP Opinion 94-54: duty to report a prior lawyer's misconduct under Rule 8.3
• RI EAP Opinion 94-52: government summons for client records 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%2094-62.pdf

Original opinion text

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

ETHICS ADVISORY PANEL
OPINION #94-62 REQUEST #533
Issued August 25, 1994

A client sought advice from the inquiring attorney concerning a fee agreement the client entered into with a second attorney. Based upon the contents of said fee agreement and other relevant facts disclosed by the client the inquiring attorney has a "strong suspicion" that the second attorney has violated a number of Rules of Professional Conduct. The inquiring attorney informed the client of these violations and encouraged the client to consent to their disclosure. The client would not consent to the disclosure.

The inquiring attorney asks whether he/she must report these violations pursuant to Rule 8.3 and in light of Rule 1.6.

Rule 8.3 entitled "Reporting Professional Misconduct" states in pertinent part:

(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.

(b) A lawyer having knowledge that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.

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

A lawyer who has knowledge that another lawyer has violated a rule which questions that lawyer's honesty, trustworthiness or fitness as a lawyer shall report it. The comments to Rule 8.3 state that "A report about misconduct is not required where it would involve violation of Rule 1.6. However, a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client's interests." Pursuant to Rule 8.3(c) and the comments that follow the attorney is not under an obligation to report the misconduct of another attorney as the information is confidential and protected by Rule 1.6. See, Ethics Advisory Panel Opinion 92-1.