Ethics Opinion 246

A Lawyer’s Obligation to Report Another Lawyer’s Misconduct

A lawyer suing another lawyer for malpractice on behalf of a client is required by Rule 8.3 to report to bar disciplinary authorities the conduct that is the subject of the malpractice action, if she has sufficient knowledge of the pertinent facts, if her knowledge is not protected as a client confidence or secret, and if the conduct of the other lawyer both constitutes a violation of an ethical rule and raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness in other respects.

Where a lawyer learns of another lawyer’s misconduct in the course of representing her client, and the information about the misconduct constitutes a confidence or secret within the meaning of Rule 1.6, that Rule prohibits her reporting it without the client’s consent. If, after having been made fully aware of any possible adverse consequences for his ultimate recovery, the client does consent, then neither Rule 1.6 nor Rule 1.3(b)(2) bars reporting. On the facts of this case, the Committee is unable to conclude that the misconduct at issue (failure to comply with the statute of limitations and representation of conflicting interests) gives rise to an obligation under Rule 8.3 to report.

Applicable Rules

• Rule 1.3(b)(2) (Diligence and Zeal)
• Rule 1.6 (Confidentiality of Information)
• Rule 8.3 (Reporting Professional Misconduct)

Inquiry

The inquirer represents a client in his malpractice claim against another D.C. lawyer, arising out of the latter’s representation of him in connection with a 1990 automobile accident. The malpractice claim is based on the lawyer’s failure to file suit within the applicable two-year limitations period, and also on a putative conflict of interest in the lawyer’s simultaneous representation in the same matter of certain members of the client’s immediate family. The inquirer wishes to know whether the conduct that is the subject of the malpractice action gives rise to an obligation on her part under Rule 8.3 to report the lawyer to bar disciplinary authorities in the District. The inquirer expresses some concern that subjecting the other lawyer to disciplinary prosecution could limit his ability to pay any judgment that may ultimately be obtained against him in the malpractice action. On the facts presented, we cannot conclude that the inquirer has an obligation to report under Rule 8.3.

Procedural History

The Committee originally approved an opinion in response to this inquiry in April 1994. Subsequently, Bar Counsel raised certain questions relating to the interaction of Rules 8.3 and 1.6, particularly with respect to what information should be regarded as “secret” under Rule 1.6(b). After further deliberation, the Committee has concluded that its initial resolution of the apparent conflict between the two Rules in question is compelled by their language. Accordingly, notwithstanding the legitimate policy concerns raised by Bar Counsel, we are constrained to reaffirm the conclusions of the earlier opinion. This revised opinion elaborates further on the issues raised by Bar Counsel.

Discussion

A lawyer’s obligation to report misconduct by another lawyer arises under Rule 8.3(a) when the lawyer “h[as] 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. . . .” If the Rule applies, then failure to report would itself be an ethical violation.

A 1992 opinion of the New York State Bar Association’s Committee on Professional Ethics, Opinion No. 635 (“New York State Bar Opinion”), outlines the following four step process for determining whether mandatory reporting is required, which we adopt.

1. “Knowledge”

Consistent with the interpretation given the reporting requirement in other jurisdictions, we believe Rule 8.3(a) should be read to require a lawyer to report misconduct only if she has a clear belief that misconduct has occurred, and possesses actual knowledge of the pertinent facts.

Although absolute certainty is not required, see Rotunda, The Lawyer’s Duty to Report Another Lawyer’s Unethical Violations in the Wake of Himmel, 1988 Ill. L. Rev. 977, 986, a mere suspicion that misconduct has occurred does not give rise to an obligation to report.

New York State Bar Opinion, id. at 4. See also New York City Ethics Opinion 1990-3; Alabama Ethics Opinion 85-95; Arizona Opinion 90-13; Nebraska Opinion 89-4; Williamson v. Council of North Carolina Bar, 46 N.C. App. 824, 266 S.E.2d 391 (1980). See also Doe v. Federal Grievance Committee, 847 F.2d 57 (2d Cir. 1988).¹

2. Client Confidences or Secrets

Next, the lawyer must consider whether the knowledge of misconduct she possesses is a client “confidence” or “secret” as those terms are defined in Rule 1.6.² If information is protected by Rule 1.6, it is specifically exempted from the mandatory reporting requirement of Rule 8.3(a). See Rule 8.3(c).³ We believe the exemption in Rule 8.3(c), read together with Rule 1.6 itself, means that a lawyer may not report misconduct where this would entail a disclosure of information protected by Rule 1.6.⁴ Rule 1.3(b)(2) may also preclude reporting if it would “prejudice” or “damage” the client, even if the client does not object.⁵

Under Rule 1.6, information gained by a lawyer “in the professional relationship,” even if not privileged, may be protected as a “secret,” in which case it may not be disclosed without the client’s consent. See note 2, supra. Comment [6] of Rule 1.6 confirms that the Rule’s protection extends “not merely to matters communicated in confidence by the client (i.e., confidences) but also to all information gained in the course of the professional relationship that the client has requested be held inviolate, or the disclosure of which would be embarrassing or would be likely to be detrimental to the client (i.e., secrets).” Comment [6] goes on to explain:

This ethical precept, unlike the evidentiary privilege, exists without regard to the nature or source of the information or the fact that others share the knowledge. It reflects not only the principles underlying the attorney-client privilege, but the lawyer’s duty of loyalty to the client. [Emphasis added.]

In the instant case, because the information about the other lawyer’s failure to file within the limitations period and his possible conflict of interest came to the lawyer “in the course of the professional relationship,” it falls within the definition of a “secret” under Rule 1.6 either if the client requests that it be “held inviolate” or if its disclosure would be “likely to be detrimental to the client.” As Comment [6] makes clear, the information does not lose its protected status as a “secret” simply because “others share the knowledge.”

Even if it could be argued that the client’s direction to disclose the information in public court filings removes it from the Rule’s definition of information “that the client has requested be held inviolate,” the information still may be entitled to protection as a client “secret” if its disclosure would be “detrimental to the client,” without regard to its already having been made public. Thus, if reporting the other lawyer’s misconduct to disciplinary authorities may lessen the client’s ultimate chances of recovery, the lawyer may be constrained by Rule 1.6 from doing so.

We have considered an argument that the client waived any expectation of confidentiality under Rule 1.6 respecting the other lawyer’s misconduct when he authorized his lawyer to file a lawsuit about it, because he had in effect consented to disclosure, at least to the extent that the facts had been made a matter of public record in the court filings. See Rule 1.6(d)(1). We believe, however, that the mere fact that certain information has in this fashion been made a matter of public record by the lawyer at the client’s direction does not permit the lawyer to disregard altogether her confidentiality obligations to the client under Rule 1.6 where disclosure in another forum is at issue. In a word, we believe that a client’s consent to disclosure under Rule 1.6(d) may be a limited one, and that the client retains the option, even where information has been disclosed for one purpose at his own direction, to limit whether and to what extent his lawyer otherwise discloses it.⁶ This construction of Rule 1.6 is confirmed by Comment [6], which points out that the Rule reflects “not only the principles underlying the attorney-client privilege, but the lawyer’s duty of loyalty to the client.” Thus, even if the client has authorized the lawyer to file a lawsuit charging another lawyer with malpractice, this does not mean that the client cannot expect the lawyer to keep the matter confidential for other purposes.

In the instant context, our conclusion respecting the interaction of Rules 1.6 and 8.3 means that a client may ask his lawyer not to file a misconduct charge with disciplinary authorities where doing so would require the lawyer to disclose information gained in the professional relationship, even though he has previously authorized the lawyer to file a malpractice action based on that same conduct, and the lawyer has done so. Under these circumstances, the lawyer is under no obligation under Rule 8.3(a) to report the other lawyer and indeed would be precluded from doing so by Rule 1.6.⁷

Of course, if the client consents to disclosure, Rule 1.6 would pose no bar to reporting. And, in this regard, we note that the commentary to Rule 8.3 states that a lawyer should “encourage” a client to consent to disclosure, unless this would “substantially prejudice” the client’s interests. See also Rule 1.3(b)(2), note 5 supra. Accordingly, before seeking the client’s consent, the lawyer has an obligation to disclose to the client her concerns about the effect reporting may have on his chances of ultimate recovery. The possibility that reporting would prejudice the client’s case should be brought to his attention in seeking his consent to disclosure. If the client does consent, after having been made fully aware of the possible adverse consequences for his ultimate recovery, neither Rule 1.6 nor Rule 1.3(b)(2) bars reporting under Rule 8.3(a).

3. Violation of a Disciplinary Rule

Once the lawyer has concluded that she “knows” the relevant facts, and that her reporting will not require disclosure of information protected by Rule 1.6, she must satisfy herself that the conduct in question rises to the level of a disciplinary violation. Here, for example, the inquirer must believe that the other lawyer engaged in conduct clearly violative of her ethical obligation to represent a client competently and diligently, as required by Rules 1.1 and 1.3. Willful or unexcused failure to file within the applicable limitations period may well constitute a basis for sanctioning a lawyer for incompetence or neglect, or for prejudicing the client during the course of the professional relationship. So may representation without regard to or in spite of conflicts of interest among her clients. On the other hand, conduct that is merely negligent may not involve an ethical violation, particularly if there are circumstances that would excuse or explain the negligence. If the inquirer has doubts as to whether a disciplinary rule has been violated by the other lawyer, apart from the alleged malpractice claim, she probably does not have the requisite degree of certainty to activate her own ethical obligation to report under Rule 8.3(a).

4. “Substantial Question” as to Honesty, Trustworthiness or Fitness to Practice Law

Finally, even if a lawyer concludes that she has the requisite knowledge of another lawyer’s clear violation of the Disciplinary Rules, and that she may reveal that knowledge without violating Rule 1.6, she is required by Rule 8.3(a) to do so only if the violation “raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects. . . .” This “significant limitation” on the reporting requirement means that “not all violations of the disciplinary rules must be reported, only the most serious ones.” New York State Bar Opinion, supra at 8. The commentary to the Rule further explicates the basis for this limitation:

If a lawyer were obliged to report every violation of the rules, the failure to report any violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term “substantial” refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware.

Whether a particular violation of the disciplinary rules meets the “substantial question” test must be determined on a case-by-case basis, using “a measure of judgment” rather than a clear litmus test. Advisory opinions from other jurisdictions are somewhat helpful in this regard but suggest no bright line test. Compare Arizona Op. 87-26 (failure to file tax returns should have been reported), Alabama Op. 90-97 (same for misappropriation of escrow funds), and New Mexico Op. 1988-8 (same for attempt to bribe witnesses) with Illinois Op. 90-36 (threats to bring criminal charges to gain advantage in a civil suit need not be reported), Virginia Op. 962 (1987) (same for attempt to persuade clients to change wills to detriment of Society for the Prevention of Cruelty to Animals), and Pennsylvania Opinion 88-225 (same for failure to comply with statute of limitations).

It would seem reasonable to conclude that a one-time negligent failure to comply with a limitation period, without more, would not evidence a lack of fitness to practice law. Similarly, simultaneous representation of several family members with arguably conflicting interests in a personal injury context would not seem on its face necessarily to present a clear and serious violation of the disciplinary rules. In the end, however, it is for the inquiring lawyer to determine, in light of all the facts of the situation as she knows them, whether in her judgment a particular disciplinary violation raises a “substantial question” about another lawyer’s fitness, so as to trigger her own ethical obligation to report it. It is and should be a solemn and unenviable task.

We note that the mere filing of the malpractice lawsuit does not relieve the inquirer from any independent obligation she may have under Rule 8.3(a) to report the conduct at issue to bar disciplinary authorities. This obligation is not satisfied by whatever public notice may be implied from filing suit in court. On the other hand, as noted previously, the fact that the lawyer has filed a lawsuit over another lawyer’s misconduct does not relieve her of her obligations to keep client confidences under Rule 1.6, and in these circumstances the client’s wishes still control.

Conclusion

On the facts outlined in the instant inquiry, we cannot determine conclusively whether all or indeed any of the four elements necessary to trigger the reporting requirement under Rule 8.3(a) are present in this case. The inquirer must herself decide, based upon the guidance herein provided, whether she has sufficient knowledge of the other lawyer’s misconduct, whether that knowledge may be disclosed consistent with Rule 1.6 and Rule 1.3(b)(2), and whether the conduct at issue in the malpractice action also constitutes a clear violation of the ethics rules. Finally, assuming the inquirer concludes that a violation of the Rules has occurred, she must also decide whether the violation is sufficiently serious as to raise a substantial question about the other lawyer’s fitness to practice law.

We stress that Rule 8.3(a) deals only with situations in which a lawyer is obligated to report another lawyer’s misconduct, so that her failure to report will itself violate the Rules of Professional Conduct and subject her to disciplinary action. The Rule neither limits the circumstances in which a lawyer is permitted to make such a report (except where Rule 1.6 precludes disclosure), nor defines those situations in which reporting might be appropriate if not mandatory. In this regard, the New York State Bar Opinion, supra at 4, notes:

A lawyer is always free to report evidence of what might constitute improper conduct by another attorney, subject to the obligations to protect client confidences and secrets. The lawyer need not have actual proof of misconduct; a good faith belief or suspicion that misconduct has been committed is a sufficient basis for making a report.

It should go without saying, of course, that it would be improper for a lawyer to make a report of misconduct and subject another lawyer to investigation without having a reasonable basis for doing so, or solely to gain a tactical advantage in a matter. See D.C. Bar Op. 220 (1991) (threats to file disciplinary charges solely to gain advantage in a civil matter violate Rule 8.4(g)). The inquirer did not ask the Committee’s views about whether or not it would be permissible or appropriate in these circumstances for her to report the other lawyer’s conduct, and we express none.

Inquiry No. 92-6-15
Adopted: April 19, 1994
Revised: October 18, 1994

1. In Doe, the Court of Appeals, in analyzing the analogous disclosure obligation under Rule 3.3(b) to reveal fraud to a tribunal, stated that a lawyer must disclose information he “reasonably knows to be a fact” and which “clearly establishes” the existence of a fraud. The court stated that “proof beyond a moral certainty” is not required, but that a lawyer “must clearly know, rather than suspect, that a fraud on the court has been committed before he brings this knowledge to the court’s attention.” 847 F.2d at 62.
2. Rule 1.6 defines client “confidences” and “secrets” as follows:
“Confidence” refers to information protected by the attorney-client privilege under applicable law, and “secret” refers to other information gained in the professional relationship that the client has requested be held inviolate, or the disclosure of which would be embarrassing, or would be likely to be detrimental, to the client.
3. Rule 8.3(c) provides:
This rule does not require disclosure of information otherwise protected by Rule 1.6.
4. A similar conclusion respecting the interaction of Rules 1.6 and 8.3(a) has been reached in several other jurisdictions. See, e.g., In re Ethics Advisory Panel Opinion No. 92-1, 627 A.2d 317 (R.I. 1993) (lawyer prohibited by Rule 1.6 from reporting fact that client’s former lawyer had embezzled and subsequently repaid a substantial amount of his client’s money); Ariz. Bar Ass’n Ethics Op. No. 90-13 (1990) (information about a client’s rape by another lawyer may not be disclosed in the face of the client’s explicit instruction not to report); Md. State Bar Ass’n Comm. on Ethics, Op. No. 89-46 (1989) (client instruction not to report breach of fiduciary duty precludes reporting); Conn. Bar Ass’n Comm. on Professional Ethics, Informal Op. 89-14 (1989) (in-house corporate lawyer may not disclose other corporate lawyer’s misconduct if disclosure could be adverse to corporation’s interests); Wis. State Bar Comm. on Professional Ethics, Formal Op. E-89-12, (1989) (disclosure prohibited if it would entail revelation of any client information, whether or not it would prejudice client). But see In re Himmel, 533 N.E.2d 70 (Ill. 1989) (lawyer’s failure to report another lawyer’s embezzlement of client funds was grounds for suspension even though his knowledge of the embezzlement may have been protected as a client “secret”; reporting rule exempted only “privileged information”); Md. State Bar Ass’n Comm. on Ethics, Op. No. 89-36 (Feb. 14, 1989) (lawyer representing other lawyers must report their misconduct if he has actual knowledge thereof which has already been revealed to a court and, therefore, is a matter of public record); Philadelphia Bar Ass’n Professional Guidance Comm., Op. 83-23 (1988), (lawyer who receives communication directly from another party to a pending litigation alleging unethical conduct by that party’s lawyer must report the information to the disciplinary board of the Pennsylvania Supreme Court. Confidentiality does not apply, as the information came from another party to the litigation, not from the lawyer’s client).
5. Rule 1.3(b) states:
A lawyer shall not intentionally:
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(2) prejudice or damage a client during the course of the professional relationship.
6. We recognize that there is some support in the case law for an argument that a client waives his right to assert attorney/client privilege to the limited extent that specific facts are disclosed in public pleadings, filed by his lawyer at his direction. See, e.g., Industrial Clearinghouse, Inc. v. Browning Mfg. Div. of Emerson Elec. Corp., 953 F.2d 1004 (5th Cir. 1992). However, we do not believe the case law interpreting the attorney/client privilege controls an attorney’s ethical obligation to report another lawyer to disciplinary authorities against her client’s wishes, since, as is made clear by Comment [6] to Rule 1.6, the protection afforded a client’s confidences by Rule 1.6 is broader than that accorded by the evidentiary privilege, and “reflects not only the principles underlying the attorney-client privilege, but the lawyer’s duty of loyalty to the client.”
7. We express no views on the desirability of this outcome as a matter of policy, although we appreciate the concerns expressed by Bar Counsel noted earlier in this opinion. See Procedural History, supra at 62. These same concerns were expressed by the Rhode Island Supreme Court in In re Ethics Advisory Panel Opinion No. 91-1, supra, 627 A.2d at 323 (allowing Rule 1.6 to “trump” the obligation to report misconduct represents “a failure of the legal profession to regulate itself effectively,” and “fuels the perception that . . . the legal profession is engaged in a coverup of attorney misconduct.”). See also Olsson, Reporting Peer Misconduct: Lip Service to Ethical Standards Is Not Enough, 31 Ariz. L. Rev. 657, 675 (1989). We are aware that some jurisdictions have promulgated a confidentiality rule that allows disclosure in a broader set of circumstances than is permitted under the District of Columbia’s version of Rule 1.6. See 2 Hazard & Hodes, The Law of Lawyering, §§ AP4:103-AP4:105 at 1259-1266. However, given the broad protection afforded client confidences under the District’s Rule 1.6, we feel constrained here to conclude as we do. The same result would appear to obtain under the ABA Model Rules, notwithstanding the different wording of Model Rule 1.6.