In a divorce case I gave opposing counsel inaccurate advice about the legal consequences of assigning part of my client's profit-sharing plan to the wife. Now that I know it was wrong, what do I owe my client and opposing counsel?

Plain-English summary

The inquiring attorney represented a husband in a domestic relations matter and provided all information about the husband's profit sharing plan to the wife's attorney. The attorney also made representations to opposing counsel about the legal consequences of assigning a portion of the husband's profit sharing plan to the wife, then learned that this "advice" was not accurate. The attorney asked what obligations were owed to both the client and opposing counsel regarding the newly obtained information.

The Panel concluded the attorney was obligated to keep the client informed about the status of the case and should notify opposing counsel of the mistake out of respect for the legal system, fairness to fellow lawyers, and the administration of justice. It set out Rule 1.4 ("Communication"), which requires keeping the client reasonably informed and explaining matters enough to permit informed decisions, and stated that the attorney, who was mistaken about the workings of the profit sharing plan, was under an ethical duty to inform the client of the alleged error.

The Panel added that the attorney was also ethically bound to notify opposing counsel of the mistaken information relating to the profit sharing plan, stressing fair treatment of those in the legal system and avoiding even the appearance of impropriety, and citing EAP Opinion 96-10 (issued June 13, 1996). It concluded that, in accordance with Rule 1.4 and the Preamble, the attorney should notify both the client and opposing counsel of the mistaken advice.

Currency note

This opinion was issued in 1996 (Opinion 96-15, issued July 11, 1996), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.4 and the Preamble as they stood at the time. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process. 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 Treat this page as historical context, not current guidance.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 I gave my client wrong advice, must I tell the client?

A: Yes. The Panel said the attorney was under an ethical duty under Rule 1.4 to keep the client informed and to inform the client of the alleged error about the profit sharing plan.

Q: Do I have to tell opposing counsel that the information I gave was wrong?

A: The Panel said the attorney was ethically bound to notify opposing counsel of the mistaken information, resting on the Preamble's fairness and appearance-of-impropriety principles rather than a discrete disclosure rule.

Q: What is the basis for correcting the mistake to the other side?

A: The Panel invoked respect for the legal system, fairness to fellow lawyers, and the administration of justice under the Preamble, and cited its earlier Opinion 96-10.

Background and rules framework

The opinion interprets Rhode Island Rule of Professional Conduct 1.4 (communication) and the Preamble to the Rules of Professional Conduct, the analog of Model Rule 1.4. Rule 1.4 supplied the duty to correct the mistake to the client; the Preamble's fairness principles supplied the Panel's guidance to notify opposing counsel.

Citations and references

Rules of Professional Conduct:

• MR 1.4 / RI RPC 1.4 (communication; keeping the client reasonably informed)
• Preamble to the RI Rules of Professional Conduct (fairness; appearance of impropriety)

Other opinions cited:

• RI EAP Opinion 96-10 (issued June 13, 1996): notifying opposing counsel of a clerical error

See also

• RI EAP Opinion 96-10: informing the client and notifying opposing counsel of a clerical error under Rule 1.4
• RI EAP Opinion 96-14: no direct contact with a represented opposing party or its insurer under Rule 4.2

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%2096-15.pdf

Original opinion text

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

ETHICS ADVISORY PANEL
OPINION 96-15, - REQUEST # 667
Issued - July 11, 1996

FACTS:

The inquiring attorney represents a husband in a domestic relations matter. The inquiring attorney provided all information regarding the husband's profit sharing plan to the wife's attorney. In addition, the inquiring attorney made representations to opposing counsel about the legal consequences of the assignment to the wife of a portion of the husband's profit sharing plan. The inquiring attorney learned that his/her "advice" was not accurate.

ISSUES PRESENTED:

The inquiring attorney asks what are his/her obligations to both the client and opposing counsel regarding this newly obtained information.

OPINION:

The inquiring attorney is obligated to keep the client informed regarding the status of his/her case. The inquiring attorney should notify opposing counsel of the mistake out of respect for the legal system, fairness to fellow lawyers, and the administration of justice.

REASONING:

A lawyer has an obligation to keep a client informed concerning matters of the legal representation. Rule 1.4 entitled "Communication" states:

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

The inquiring attorney was mistaken about the workings of the profit sharing plan and should correct the mistake with his/her client. The Panel believes that the inquiring attorney is under an ethical duty to inform the client of the alleged error committed.

The inquiring attorney is also ethically bound to notify opposing counsel of the mistaken information relating to the profit sharing plan. The Panel believes strongly in treating those involved in the legal system fairly and that an attorney should avoid even the appearance of impropriety. See, Rhode Island Supreme Court Ethics Advisory Panel Opinion # 96-10 (Issued June 13, 1996).

The Panel believes that in accordance with Rule 1.4 and the Preamble, the inquiring attorney should notify both the client and opposing counsel regarding his/her mistaken advice.