I think opposing counsel orchestrated a custody transfer to help his client dodge child support. Must I report him under Rule 8.3, and does the panel decide if it's a violation?

Plain-English summary

The inquiring attorney represented a mother in a child support matter against a father, who was represented by Attorney B. The mother had sole custody, and the father was under a court order to pay child support but had been delinquent for ten years. In 1995, the mother consented to let the maternal aunt, represented by Attorney C, have custody of the child. The inquiring attorney then learned that Attorney B had contacted the maternal aunt to ask whether she would take custody and referred her to Attorney C, and that when Attorney C requested a retainer, Attorney B contacted the paternal grandmother, who gave the aunt a check for the legal costs. The inquiring attorney believed Attorney B had orchestrated the arrangement to circumvent the father's child-support obligation, and asked whether Attorney B violated the rules and whether the inquiring attorney had to report it under Rule 8.3.

The panel set out Rule 8.3(a), which requires a lawyer who knows another lawyer committed a violation raising a substantial question as to honesty, trustworthiness, or fitness to inform the appropriate authority, and noted Rule 8.3(c), which does not require disclosure of information protected by Rule 1.6. It also quoted Rule 8.4's definition of misconduct, including conduct involving dishonesty, fraud, deceit, or misrepresentation.

As in its companion inquiries, the panel declined to decide whether the described conduct met the reporting threshold. It explained that whether another attorney's conduct raises a substantial question as to honesty, trustworthiness, or fitness involves largely subjective credibility determinations, so the judgment belongs to the attorney who witnessed the conduct, not the panel. The panel concluded that if the inquiring attorney has knowledge that a rule violation occurred that raises a substantial question as to the other lawyer's honesty, trustworthiness, or fitness, the inquiring attorney must report the attorney to the Disciplinary Counsel's Office.

Currency note

This opinion was issued in 1995, 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, 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 renumbered and amended several provisions. 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: Does the panel decide whether opposing counsel committed reportable misconduct?

A: No. The panel held that whether the conduct raises a substantial question as to honesty, trustworthiness, or fitness is a subjective credibility determination for the witnessing attorney, not the panel.

Q: If I conclude a violation occurred, must I report it?

A: The panel stated that a lawyer with knowledge of a violation raising a substantial question as to the other lawyer's honesty, trustworthiness, or fitness must report the attorney to Disciplinary Counsel.

Q: Does the duty to report override client confidentiality?

A: No. The panel noted Rule 8.3(c), under which the reporting rule does not require disclosure of information otherwise protected by Rule 1.6.

Background and rules framework

The opinion applies Rule 8.3 (Reporting Professional Misconduct), Rule 8.4 (Misconduct), and Rule 1.6 (Confidentiality of Information), corresponding to Model Rules 8.3, 8.4, and 1.6. Rule 8.3(a) sets the reporting duty for violations raising a substantial question as to honesty, trustworthiness, or fitness; Rule 8.3(c) exempts information protected by Rule 1.6; and Rule 8.4 defines the categories of misconduct. The panel placed the "substantial question" judgment with the witnessing attorney.

Citations and references

Rules of Professional Conduct:

• MR 8.3 (reporting professional misconduct)
• MR 8.4 (misconduct)
• MR 1.6 (confidentiality of information)
• RI RPC 8.3, 8.4, 1.6

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 95-41: Who Decides Whether Misconduct Is Reportable
• RI EAP Op. 95-30: Reporting a Successor Attorney Who Ignored a Lien
• RI EAP Op. 95-10: Reporting Another Lawyer's Admitted Fund Misappropriation

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%2095-43.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 #95-43, REQUEST #610
ISSUED - OCTOBER 12, 1995

The inquiring attorney represents Mother regarding a child support matter against Father. Father is represented by Attorney B. Mother had sole custody of minor child and Father was under a court order to pay child support. Father was delinquent in payments for ten (10) years. In 1995, Mother consented to allow Maternal Aunt, represented by Attorney C, to have custody of the child.

After these events occurred, the inquiring attorney learned that Attorney B contacted Maternal Aunt to inquire whether she was willing to have custody of the child. Attorney B referred Maternal Aunt to Attorney C. When Attorney C asked Maternal Aunt for a retainer, Attorney B contacted Paternal Grandmother who gave Aunt a check to pay for the legal costs. The inquiring attorney believes that Attorney B orchestrated this arrangement in order to circumvent client's obligation to support the child.

The inquiring attorney asks whether Attorney B has violated the Rules of Professional Conduct and if so, must he/she report this violation according to Rule 8.3

Rule 8.3 entitled "Reporting Professional Misconduct" states the following:

(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 required disclosure of information otherwise protected by Rule 1.6.

Rule 8.4 defines "Misconduct" and states the following:

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

In this situation described, the determination as to whether another attorney has violated an ethical rule that raises a substantial question as to that attorney's honesty, trustworthiness or fitness to practice is one which involves determinations as to credibility that are largely subjective. Accordingly, such a determination is one to be made by the attorney witnessing such conduct and not by this Panel. If the inquiring attorney has knowledge that a rule violation has occurred by another attorney which raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer, then he/she must report the attorney to the Disciplinary Counsel's office.