I represent an estate, and I suspect the executor (himself a lawyer) has diverted estate funds. Do Rules 1.6 and 8.3 require or allow me to report him, and must I investigate to confirm my suspicion?

Plain-English summary

The inquiring attorney represented an estate whose executor, Attorney Y, had sold some of the decedent's property to pay the estate's debts. On the inquiring attorney's advice, Attorney Y deposited the sale proceeds in a bank account. When asked about claims filed against the estate, Attorney Y said not all claims were paid but the remainder would be. The inquiring attorney came to believe Attorney Y may have diverted estate funds and asked what obligations were owed to Attorney Y under Rules 1.6 and 8.3, and whether to investigate to substantiate those beliefs.

The Panel set out Rule 1.6 ("Confidentiality of Information"), which bars a lawyer from revealing information relating to the representation of a client unless the client consents or one of the paragraph (b) exceptions applies. On these facts the Panel did not believe the paragraph (b) exceptions applied, so it opined that the inquiring attorney could not disclose the executor's alleged wrongdoing, quoting the Rule's command that a lawyer "shall not reveal information relating to representation of a client unless the client consents after consultation."

The Panel then addressed Rule 8.3 ("Reporting Professional Misconduct"), which requires reporting another lawyer's violation that raises a substantial question about honesty, trustworthiness, or fitness. The Panel relied on Rule 8.3(c), which does not require disclosure of information otherwise protected by Rule 1.6, and concluded that Rule 8.3(c) prohibited the inquiring attorney from disclosing the alleged wrongdoing because the information was protected by Rule 1.6. For the attorney's obligations as counsel to an estate, the Panel pointed to EAP Opinion 92-23 (issued May 20, 1992), which addressed fraudulent withdrawals from an estate by a guardian.

Currency note

This opinion was issued in 1994 (Opinion 94-78, issued December 6, 1994), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.6 and 8.3 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, including the confidentiality exceptions in Rule 1.6. 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 a lawyer report another lawyer's suspected misconduct under Rule 8.3?

A: Not when the information is protected by Rule 1.6. The Panel applied Rule 8.3(c), which expressly does not require disclosure of information otherwise protected by Rule 1.6, and held it barred the inquiring attorney from reporting the executor.

Q: Did Rule 1.6 allow disclosure of the executor's suspected diversion?

A: No. The Panel found none of Rule 1.6(b)'s exceptions applied on these facts, so the inquiring attorney could not reveal the alleged wrongdoing.

Q: Whose confidences were at stake, given that the executor was a lawyer?

A: The Panel treated the information as relating to the representation of the estate client and therefore protected; it did not treat Attorney Y as the person owed the confidentiality duty. It cross-referenced EAP Opinion 92-23 on a lawyer's duties as counsel to an estate.

Background and rules framework

The opinion interprets Rhode Island Rules of Professional Conduct 1.6 (confidentiality of information) and 8.3 (reporting professional misconduct), the analogs of Model Rules 1.6 and 8.3. The dispositive provision was Rule 8.3(c), which subordinates the misconduct-reporting duty to the confidentiality duty: where the only knowledge of another lawyer's suspected violation is information protected by Rule 1.6, the reporting obligation does not reach it.

Citations and references

Rules of Professional Conduct:

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

Other opinions cited:

• RI EAP Opinion 92-23 (issued May 20, 1992): fraudulent withdrawals from an estate by a guardian; obligations of counsel to an estate

See also

• RI EAP Opinion 92-80: confidentiality bars reporting a prior lawyer's fraud role without client consent under Rule 1.6
• RI EAP Opinion 90-05: a CPA-attorney's duty on learning of a lawyer's fraud on heirs

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%2094-78.pdf

Original opinion text

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

ETHICS ADVISORY PANEL
OPINION #94-78 REQUEST #552
Issued December 6, 1994

The inquiring attorney represents an estate of which Attorney Y is the executor. Attorney Y as executor, sold some of the decedent's property to pay off the deceased's debts. The inquiring attorney advised Attorney Y to deposit the proceeds of the sale in a bank account. When questioned about the status of claims filed against the estate, Attorney Y stated that not all of the claims were paid and that the remainder would be paid. The inquiring attorney is of the opinion that Attorney Y may have diverted funds from the estate. The inquiring attorney seeks Panel advice regarding the following: What obligation does the inquiring attorney owe to Attorney Y pursuant to Rules 1.6 and 8.3, and should the inquiring attorney investigate matters to substantiate these beliefs regarding the remaining assets.

With respect to whether the inquiring attorney may reveal information concerning the alleged wrongdoings, Rule 1.6 entitled "Confidentiality of Information" applies. That Rule 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 the facts as provided by the inquiring attorney, the Panel does not believe the exceptions delineated in subsection (b) are applicable. It is therefore the Panel's opinion that the inquiring attorney may not disclose his/her knowledge of the executor's alleged wrong doings. The Rule clearly states that "a lawyer shall not reveal information relating to representation of a client unless the client consents after consultation..."

Rule 8.3 has bearing on the issue raised by this inquiry and provides as follows:

Rule 8.3. Reporting Professional Misconduct.

(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...

In this case, Rule 8.3(c) prohibits the inquiring attorney from disclosing the alleged wrongdoing because the information is protected by Rule 1.6. As to the inquiring attorney's obligations as attorney to an estate See, EAP Opinion 92-23 (Issued May 20, 1992) which opined on the fraudulent withdrawals from an estate by a guardian.