Rhode Island Legal Ethics
V. LAW FIRMS AND ASSOCIATIONS
5.1 Rule 5.1 Responsibilities of a Partner and Supervisory Lawyer
5.1:100 Comparative Analysis of Rhode Island Rule
Primary Rhode Island References: RI Rule 5.1
Background References: ABA Model Rule 5.1, Other Jurisdictions
Commentary:
5.1:101 Model Rule Comparison
RI Rule 5.1, and comments thereto, are the same as the Model Rule and its comments.
5.1:102 Model Code Comparison
Rhode Island has not adopted a Model Code comparison. See MR 5.1 and other jurisdictions.
5.1:200 Duty of Partners to Monitor Compliance with Professional Rules
Primary Rhode Island References: RI Rule 5.1(a)
Background References: ABA Model Rule 5.1(a), Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL § 11, Wolfram § 16.2
An attorney who is a member of a legislatively appointed investigative committee is not required to supervise other members of that committee under RI Rule 5.1 although other Rules may apply. RI Eth. Op. 92-29 (1992).
5.1:300 Monitoring Duty of Supervisory of Lawyer
Primary Rhode Island References: RI Rule 5.1(b)
Background References: ABA Model Rule 5.1(b), Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL § 11, Wolfram § 16.2
This supervisory duty requires attorneys to supervise non-attorneys in their employ. RI Eth. Op. 95-9 (1995) (duty to supervise extends to paralegal's representations).
5.1:400 Failing to Rectify the Misconduct of a Subordinate Lawyer
Primary Rhode Island References: RI Rule 5.1(c)
Background References: ABA Model Rule 5.1(c), Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL § 5, Wolfram § 16.2
There is no authority in Rhode Island on this topic.
5.1:500 Vicarious Liability of Partners
Primary Rhode Island References: RI Rule 5.1
Background References: ABA Model Rule 5.1, Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL §§ 8, 9
There is no authority in Rhode Island on this topic.
5.2 Rule 5.2 Responsibilities of a Subordinate Lawyer
5.2:100 Comparative Analysis of Rhode Island Rule
Primary Rhode Island References: RI Rule 5.2
Background References: ABA Model Rule 5.2, Other Jurisdictions
Commentary:
5.2:101 Model Rule Comparison
Rhode Island has adopted MR 5.2, including the comments thereto.
5.2:102 Model Code Comparison
Rhode Island has not adopted a Model Code comparison. See MR 5.2 and other jurisdictions.
5.2:200 Independent Responsibilities of a Subordinate Lawyer
Primary Rhode Island References: RI Rule 5.2(a)
Background References: ABA Model Rule 5.2(a), Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL § 5, Wolfram § 16.2
There is no authority in Rhode Island on this topic.
5.2:300 Reliance on a Supervisor's Resolution of Arguable Ethical Issues
Primary Rhode Island References: RI Rule 5.2(b)
Background References: ABA Model Rule 5.2(b), Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL § 5, Wolfram § 16.2
There is no authority in Rhode Island on this topic.
5.3 Rule 5.3 Responsibilities Regarding Nonlawyer Assistants
5.3:100 Comparative Analysis of Rhode Island Rule
Primary Rhode Island References: RI Rule 5.3
Background References: ABA Model Rule 5.3, Other Jurisdictions
Commentary:
5.3:101 Model Rule Comparison
Rhode Island has adopted MR 5.3 including the Comments thereto.
5.3:102 Model Code Comparison
Rhode Island has not adopted a Model Code Comparison. See MR 5.3 and other jurisdictions.
5.3:200 Duty to Establish Safeguards
Primary Rhode Island References: RI Rule 5.3(a)
Background References: ABA Model Rule 5.3(a), Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL §§ 4, 5, Wolfram § 16.3
An attorney serving as an officer, director, or member of a non-profit corporation to render consulting services to local artists on legal, financial, and tax issues must take precautionary measures so as not to assist non-lawyers in the unauthorized practice of law. RI Eth. Op. 93-25 (1993). See Provisional Order No. 18 following RI Rule 5.5.
5.3:300 Duty to Control Nonlawyer Assistants
Primary Rhode Island References: RI Rule 5.3(b)
Background References: ABA Model Rule 5.3(b), Other Jurisdictions
Commentary: ABA/BNA § 21:8601, ALI-LGL §§ 4, 5, Wolfram § 16.3
See Provisional Order No. 18 following RI Rule 5.5.
5.3:400 Responsibility for Misconduct of Nonlawyer Assistants
Primary Rhode Island References: RI Rule 5.3(c)
Background References: ABA Model Rule 5.3(c), Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL §§ 4, 5, Wolfram § 16.3
An attorney's secretary's knowledge of confidential information about the wife of the attorney's client in a domestic action is imputed to the attorney, creating a conflict of interest under RI Rule 1.10. RI Eth. Op. 93-11 (1993).
5.4 Rule 5.4 Professional Independence of a Lawyer
5.4:100 Comparative Analysis of Rhode Island Rule
Primary Rhode Island References: RI Rule 5.4
Background References: ABA Model Rule 5.4, Other Jurisdictions
Commentary:
5.4:101 Model Rule Comparison
Rhode Island has adopted MR 5.4(a)(1), 5.4(a)(3), and 5.4(b) including the Comments thereto.
Model Rule 5.4(a)(2)
5.4:102 Model Code Comparison
Rhode Island has not adopted a Model Code comparison. See MR 5.4 and other jurisdictions.
5.4:200 Sharing Fees with a Nonlawyer
Primary Rhode Island References: RI Rule 5.4(a)
Background References: ABA Model Rule 5.4(a), Other Jurisdictions
Commentary: ABA/BNA § 41:801, Wolfram §§ 16.4, 16.5
An attorney may not receive a fee for "document preparation" where such fee is occasionally paid directly to the lender the attorney represents. RI Eth. Op. 90-90-23 (1990). If this is a legal service, the attorney is sharing fees with a non-lawyer for legal work; if it is not, the attorney is charging legal fees for non-legal services (in violation of the general requirement that an attorney's fee be reasonable).
When a tribunal must determine a fair and reasonable attorney fee, it does not violate the fee sharing prohibition of RI Rule 5.4 to include fees for paralegal time for services rendered. See Schroff, Inc. v. Taylor-Peterson, 732 A.2d 719, 721 (R.I. 1999). Paralegal fees should not be eliminated from calculation of attorneys' fees, since other normal out-of-pocket expenditures are usually included in the award. See id.
A lawyer with an L.L.M may not state in an announcement that he/she is affiliated with an IRS agent who is a nonlawyer, because such an announcement suggests a partnership between the two, in violation of RI Rule 5.4(a) (a lawyer shall not share fees with a non-lawyer) and RI Rule 5.4(b) (a lawyer shall not form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law). RI Eth. Op. 93-61 (1993).
An attorney who pays a consulting company a fee to advertise her legal services runs afoul of Rule 5.4(a), which prohibits lawyers from sharing its legal fees with nonlawyers. RI Eth. Op. 2000-4 (2000).
It is ethically improper under Rule 5.4(a), which prohibits a lawyer from sharing fees with a nonlawyer, for a lawyer who undertakes pro bono representation in RI-ACLU sponsored litigation to pay a percentage of court-awarded attorneys' fees to the RI-ACLU. RI Eth. Op. 2000-5 (2000).
A law firm may pay a suspended attorney for services he/she performed before the suspension on a quantum meruit basis. RI Eth. Op. 2001-07 (2001).
The Rhode Island Supreme Court declined to enact amendments to Rules 5.4(a) and 7.2(c) of the Rules of Professional Conduct which would permit lawyers to share court awarded counsel fees or a settlement amount derived from a case that would have been eligible for court-awarded counsel fees with nonprofit corporations and associations. The Court reasoned that the receipt by a nonprofit corporation of any part of a fee for legal services would constitute the illegal practice of law. In re Rule Amendments to Rules 5.4(a) and 7.2(c) of the Rules of Professional Conduct, 815 A.2d 47 (R.I. 2002).
5.4:300 Forming a Partnership with Nonlawyers
Primary Rhode Island References: RI Rule 5.4(b)
Background References: ABA Model Rule 5.4(b), Other Jurisdictions
Commentary: ABA/BNA § 91:401, Wolfram §§ 16.4, 16.5
An attorney may be employed by a non-profit corporation providing legal, financial, and tax services for artists but he/she must at all times maintain the independent professional judgment addressed by RI Rule 5.4. RI Eth. Op. 93-25 (1993).
Although RI Rule 5.4 does not prohibit an attorney who is a licensed real estate broker from operating a real estate business from his/her office, the lawyer may not "form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law". RI Eth. Op. 93-59 (1993).
A lawyer with an L.L.M may not state in an announcement that he/she is affiliated with an IRS agent who is a non-lawyer, because such an announcement suggests a partnership between the two, in violation of RI Rule 5.4(a) (a lawyer shall not share fees with a non-lawyer) and RI Rule 5.4(b) (a lawyer shall not form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law). RI Eth. Op. 93-61 (1993).
A lawyer is prohibited from conducting a law practice and also participating with a non-lawyer therapist in a business capacity to provide mediation services in family law matters. RI Eth. Op. 95-1 (1995).
5.4:400 Third Party Interference with a Lawyer's Professional Judgment
Primary Rhode Island References:
RI Rule 5.4(c) Primary Rhode Island References: RI Rule 5.4(d) "Litigation Management Guidelines" established by insurance company to delineate and set parameters for attorney's representation of the company's insured interfere with the attorney's independent professional judgment, and therefore the attorney cannot ethically agree to abide by them. RI Eth. Op. 99-18 (1999). An attorney may be employed by a non-profit corporation providing legal, financial, and tax services for artists but he/she must at all times maintain the independent professional judgment addressed by RI Rule 5.4. RI Eth. Op. 93-25 (1993). A lawyer with an L.L.M may not state in an announcement that he/she is affiliated with an IRS agent who is a nonlawyer, because such an announcement suggests a partnership between the two, in violation of RI Rule 5.4(a) (a lawyer shall not share fees with a non-lawyer) and RI Rule 5.4(b) (a lawyer shall not form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law). RI Eth. Op. 93-61 (1993). 5.5 Rule 5.5 Unauthorized Practice of Law Primary Rhode Island References: RI Rule 5.5 Rhode Island has adopted MR 5.5 including the comments thereto. Rhode Island has not adopted a Model Code comparison. See MR 5.5 and other jurisdictions. Primary Rhode Island References: RI Rule 5.5(a) An attorney must not practice law in a jurisdiction where it would constitute a violation of the legal profession. The comment to the Model Rule demonstrates the principle that limiting the practice of law to members of the bar serves to protect the public against hiring unqualified persons to engage in legal representation. Both an attorney and a non-attorney principal, who jointly set up a placement agency for temporary employment of lawyers, are permitted to explain information contained in an ABA Formal Opinion regarding temporary lawyers. RI Eth. Op. 90-34 (1990). Because any consideration paid to the advising attorney or non-attorney was paid for placement services, not legal advice, their explanation of the ABA opinion does not fall within the definition of the practice of law. See id. Both an attorney and a non-attorney principal, who jointly set up a placement agency for temporary employment of lawyers, are permitted to explain information contained in an ABA Formal Opinion regarding temporary lawyers. RI Eth. Op. 90-34 (1990). Because any consideration paid to the advising attorney or non-attorney was paid for placement services, not legal advice, their explanation of the ABA opinion does not fall within the definition of the practice of law. See id. A lawyer must be admitted to practice in the one's own jurisdiction in order to practice law. The Comments relate how a license to practice in a "jurisdiction" encompasses not only separate states, but also federal courts located within that state. Rhode Island has not adopted a comparable provision for Pro Hac Vice Admission within RI Rule 5.5. Rhode Island has not adopted a comparable provision for Performing Legal Services in Another Jurisdiction within RI Rule 5.5. Primary Rhode Island References: RI Rule 5.5(b) A lawyer must not assist a non-lawyer in activities that constitute the unauthorized practice of law. The Rhode Island Comments provide that a lawyer will not be considered as assisting in the unauthorized practice of law where the lawyer employs the services of paraprofessionals and delegates functions to them, provided that the lawyer supervises and retains responsibility over the delegated work. Similarly, the rule does not prohibit lawyers from rendering professional advice and instruction to non-lawyers whose employers incorporate knowledge of the field of law. For instance, claims adjusters, employees of financial or commercial institutions, social workers, accountants and persons employed in government agencies, are entitled to receive legal knowledge without running afoul of the rule. Additionally, a lawyer is permitted to counsel non-lawyers who appear pro se. An attorney may be responsible for the conduct of non-lawyer assistants employed by a non-profit corporation which provides legal, financial, and tax advice for a minimal fee and, if precautionary measures are not taken, could be construed to be assisting a person who is not a member of the bar in the performance of an activity that constitutes the unauthorized practice of law. RI Eth. Op. 93-25 (1993). An attorney's assisting as a bank employee in the preparation of loan documents is not considered assisting in the unauthorized practice of law and does not violate the Rules of Professional Conduct. RI Eth. Op. 94-57 (1994). Moreover, the Rhode Island Statutes that define the unauthorized practice of law specifically authorizes the preparation of loan documents by bank employees within its language. See id. Generally, the panel ruled that the activities of the State
X collection agency affiliated with a Rhode Island law firm, including sending
letters on the law firm's stationary, would constitute the practice of law and
accordingly would be subject to State X's laws, regulations, and rules regarding
practice. RI Eth. Op. 93.52 (1993). Also, The Panel
found that the proposed arrangement would be in violation of RI
Rule 5.5 because a lawyer shall not assist a person who is not a member
of the bar in the performance of an activity that constitutes the unauthorized
practice of law. See id. It would be proper for a law firm's opinion letter and bill to a client company, regarding claims submitted to the client by its customer, to be drafted on the firm's stationary where the firm had no financial interest in the client company. RI Eth. Op. 89-2 (1989). It also would be proper for the firm's opinion, in memo form, to be on the client company's own stationary, but the bill to the client must be prepared on the firm's own stationary. See id. It is proper for the client to incorporate the legal opinion from the firm into its own correspondence with the customer. See id. Finally, the law firm may send a legal opinion directly to the customer of the client company, concerning a claim they submitted to the client company. See id. 5.6 Rule 5.6 Restrictions on Right to Practice Primary Rhode Island References: RI Rule 5.6 Rhode Island has adopted MR 5.6, including the comments thereto. Rhode Island has not adopted a Model Code comparison. See MR 5.6 and other jurisdictions. Primary Rhode Island References: RI Rule 5.6(a) This comment states the prohibition against an agreement restricting the right of partners or associates to practice after leaving a firm. This practice not only limits the attorney's professional autonomy, but also the freedom of clients to choose a lawyer. The exception here is for restrictions that are incident to provisions concerning retirement benefits for service with the firm. There is no authority in Rhode Island on this topic. Primary Rhode Island References: RI Rule 5.6(b) A lawyer must not be prohibited from agreeing to represent other persons in connection with settling a claim on behalf of a client. The restriction is not placed on the lawyer in relation to the terms of a sale of a law practice. There is no authority in Rhode Island on this topic. 5.7 Rule 5.7 Responsibilities Regarding Law-Related Services Primary Rhode Island References: RI Rule 5.7 Rhode Island has not adopted MR 5.7. Rhode Island has not adopted a Model Code comparison. See MR 5.7 and other jurisdictions. Primary Rhode Island References: Rhode Island has not adopted MR 5.7.
Commentary: ABA/BNA § 51:901, Wolfram § 8.8
5.4:500 Nonlawyer Ownership in or Control of Profit-Making Legal Service Organization
Background References: ABA Model Rule 5.4(d), Other Jurisdictions
Commentary: ABA/BNA § 91:401, Wolfram § 16.4, 16.5
5.4:510 Group Legal Services
5.4:520 Nonprofit Organizations Delivering Legal Services
5.5:100 Comparative Analysis of Rhode Island Rule
Background References: ABA Model Rule 5.5, Other Jurisdictions
Commentary:
5.5:101 Model Rule Comparison
5.5:102 Model Code Comparison
5.5:200 Engaging in Unauthorized Practice
Background References: ABA Model Rule 5.5(a), Other Jurisdictions
Commentary: ABA/BNA § 21:8001, ALI-LGL §§ 3, 4, Wolfram § 15.1
5.5:210 Practice of Law by Nonlawyers
5.5:220 Admission and Residency Requirement for Out-of-State Lawyers
5.5:230 Pro Hac Vice Admission [see also 8.1:240]
5.5:240 Performing Legal Services in Another Jurisdiction
5.5:300 Assisting in the Unauthorized Practice of Law
Background References: ABA Model Rule 5.5(b), Other Jurisdictions
Commentary: ABA/BNA § 21:8201, ALI-LGL § 4, Wolfram § 15.1
5.6:100 Comparative Analysis of Rhode Island Rule
Background References: ABA Model Rule 5.6, Other Jurisdictions
Commentary:
5.6:101 Model Rule Comparison
5.6:102 Model Code Comparison
5.6:200 Restrictions on Lawyers Leaving a Firm
Background References: ABA Model Rule 5.6(a), Other Jurisdictions
Commentary: ABA/BNA § 51:1201 ALI-LGL § 9
5.6:300 Private Settlements Restricting a Lawyer's Future Practice
Background References: ABA Model Rule 5.6(b), Other Jurisdictions
Commentary: ABA/BNA § 51:1201, ALI-LGL § 9, Wolfram § 16.2.3
5.7:100 Comparative Analysis of Rhode Island Rule
Background References: ABA Model Rule 5.7, Other Jurisdictions
Commentary:
5.7:101 Model Rule Comparison
5.7:102 Model Code Comparison
5.7:200 Applicability of Ethics Rules to Ancillary Business Activities
Background References: ABA Model Rule 5.7, Other Jurisdictions
Commentary: ABA/BNA § 101:2101