In re Ethics Advisory Panel Opinion No. 92-1

Attorney X negotiated a lease agreement on behalf of a client and held the client’s funds in an escrow account. A dispute arose, and attorney X referred the client to another lawyer (the inquiring lawyer) for litigation. After settling the matter, the inquiring lawyer called attorney X about releasing the escrow funds. Attorney X disclosed that he had used the funds without client authorization. The inquiring lawyer advised the client that the inquiring lawyer was required to report attorney X’s ethical violation to the disciplinary authorities. The client was concerned the funds would not be replaced if the violation were reported and refused to authorize the disclosure. Attorney X replaced the funds. The client would not authorize disclosure of attorney X’s misconduct and continued to use attorney X’s services. The inquiring lawyer sought advice from the Rhode Island Supreme Court’s ethics advisory panel. The panel opined in Opinion No. 92-1 (the opinion) that the inquiring lawyer was prohibited from revealing the misconduct without the client’s consent. The panel reasoned that Rule of Professional Conduct (RPC) 1.6 requires that an attorney keep confidential all matters the client communicates in confidence and all information relating to the representation, and RPC 8.3(c) does not require a lawyer to report another attorney’s misconduct if the disclosure would violate RPC 1.6. The disciplinary counsel petitioned the Rhode Island Supreme Court for review of the opinion, arguing that an attorney may report another lawyer’s misconduct without client consent if the reporting attorney learned of the misconduct from an admission made by the lawyer rather than a communication from the client.