Ethics Opinion 270

Whether Subordinate Lawyer Must Alert Client and Report Superior’s Misconduct After Lawyer Has Left Practice

Where a subordinate lawyer learns that an employing lawyer has sent a client what purports to be copies of correspondence written on the client’s behalf, but where the letters were, in fact, never sent, the subordinate lawyer has a duty to assure that the client is informed of the deception and to report the employing lawyer to disciplinary authorities. These duties continue after the subordinate lawyer resigns upon learning of the deception.

Applicable Rules

• Rule 1.4 (Communication)
• Rule 1.16 (Declining or Terminating Representation)
• Rule 5.2 (Responsibilities of a Subordinate Lawyer)
• Rule 8.3 (Reporting Professional Misconduct)
• Rule 8.4 (Misconduct)

Inquiry

Inquirer, a lawyer, was hired through a temporary employment agency to work for a sole practitioner on a particular matter. In the course of the first few days of inquirer’s work, the employing lawyer informed her that his client in the matter had recently insisted that he write an aggressive letter to a third party, despite the lawyer’s advice that sending such a letter was imprudent. The employing lawyer further advised inquirer that when the client made such demands in the past, his practice was to draft a letter that would satisfy the client’s wishes but not send it to the addressee. Instead, the employing lawyer sent a copy of the letter to the client to make it appear to the client that the letter had been sent to the addressee. The employing lawyer did not explain when these events had taken place and did not ask inquirer to draft a fictitious letter.

Inquirer informed the employing lawyer that she felt uncomfortable about this practice, and at the end of the first week of her placement withdrew from the matter and resigned the temporary position. Some weeks later inquirer informed the employing lawyer that she believed that he had committed a serious violation of the Rules of Professional Conduct, and requested that the client be informed of the deceptions. As a result of these conversations, the employing lawyer informed the client of the falsity of the prior letters and withdrew from representation of the client.

Inquirer raises two questions: 1) After leaving the firm, does inquirer have a duty to assure that the client is informed of the employing lawyer’s misrepresentations? 2) Upon leaving, does inquirer have a duty to report the violation to disciplinary authorities? In our opinion, the answer to both questions is yes.

Discussion

The conduct of the employing lawyer destroyed the heart of the lawyer-client relationship. A client must be able to trust a lawyer and be confident that the lawyer is sharing relevant information and dealing forthrightly and honestly with the client. Deceiving the client about the lawyer’s own actions in the matter destroys this fundamental aspect of the lawyer-client relationship.

Dishonesty and deceit are professional misconduct under Rule 8.4(c). Rule 1.4, moreover, enshrines a lawyer’s duty of honest communication with the client.¹ It demands that the lawyer keep the client “reasonably informed of the status of a matter.” In this case, the failure to keep the client informed took the form of deliberately misleading the client about the lawyer’s actions in the case.

Lawyers sometimes have clients who are obstreperous or demand that the lawyer take actions that are inconsistent with the lawyer’s best judgment. There are accepted ways of responding to the difficulties such clients present, but affirmatively leading the client to believe the lawyer has taken an action he has not in fact taken is not among them. The harms that could befall a client who has received a fictitious letter from a lawyer are easily imagined. But even if no specific harm occurs, sending a fictitious letter to the client so damages the professional relationship as to require condemnation of the lawyer’s conduct.

1. Disclosure to the Client

Had inquirer remained in the employ of the offending lawyer and continued to represent the client beyond the mere week she did, she would have had an obligation to assure that the client was represented consistent with the Rules of Professional Conduct, including the duty of open and honest communication under Rule 1.4.² The requirement of truthfulness in the representation that is part of the Rule 1.4 obligation would have required her to take action to see to it that no further fictitious letters be sent and that the client be informed about the fictitious letters sent in the past.

Inquirer, however, no longer represents the client, and we must ascertain what duty to inform, if any, she owed to the client upon her withdrawal. Usually, withdrawal from representation terminates the relationship with the client, leaving only limited residual obligations, such as to protect client confidences and to avoid certain conflicts. See Rules 1.6(f) and 1.9. The duty of communication is not among these residual obligations. Inquirer did, however, have the duty upon withdrawal to “take timely steps to the extent practicable to protect a client’s interests, . . .” Rule 1.16(d). In the unique circumstances presented in this case, we believe that one of those timely and practicable steps is to assure that the client is informed of the deceptions. The brevity of the representation by inquirer left little time to fulfill the duty to notify the client of the misrepresentation during the course of inquirer’s participation in the representation. The only way to remedy the wrongdoing and prevent disadvantage to the client was to act promptly to assure that the client became aware of the deception.

We recognize that Rule 1.16(d) seems intended to address the common situation where a lawyer or entire firm terminates representing a client, not the instance where a single lawyer among two or more on a matter withdraws. Nevertheless, both the language and what we discern as the underlying purpose of the rule—to assure that the client is not disadvantaged by the lawyer’s departure—apply equally in both instances. Comment [10] of the Rule states that even when a lawyer is unfairly discharged by a client, the lawyer still must take “all reasonable steps to mitigate the consequences.” Surely, then, a lawyer who leaves on account of another lawyer’s misconduct has a similar duty to mitigate. Mitigation here means assuring that the client learn the truth about the fictitious letters.

Inquirer should, however, exercise her obligation under Rule 1.16(d) in a manner least disruptive to the existing lawyer-client relationship. Here, inquirer acted appropriately by approaching the employing lawyer and securing his commitment to disclose his acts to the client. If the employing lawyer had refused to inform the client or raised substantial doubt in inquirer’s mind whether he would do so, inquirer would have had a duty to inform the client directly.

2. The Obligation to Report to Disciplinary Authorities

The next question is whether inquirer has any additional obligation to report the employing lawyer’s misconduct to Bar Counsel. Rule 8.3 requires reporting of violations of the Rules of Professional Conduct “that raise a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer . . .” In Opinion 246, we adopted the four-part test adopted by other jurisdictions for determining whether this standard is met: (l) whether the reporting lawyer has knowledge of the violation; (2) whether reporting can be accomplished without disclosure of client confidences or secrets; (3) whether the violation involves a disciplinary rule; and (4) whether the violation raises a substantial question as to honesty, trustworthiness or fitness to practice law.

All four elements are met in this case. The first element—whether a lawyer has “actual knowledge” of a violation—turns on two factors: a “clear belief” that misconduct occurred and “actual knowledge of the pertinent facts.” Opinion 246. There is no question here that inquirer clearly believed misconduct occurred. The fact that inquirer left the temporary placement after just a week because of her discomfort with the employing lawyer’s conduct confirms that she believed the employing lawyer had in fact engaged in serious wrongdoing.

We also conclude that inquirer had “actual knowledge” of the violation through the admissions the employing lawyer made directly to her. One might argue that inquirer did not have “actual knowledge” in the sense of witnessing firsthand the behavior of the employing lawyer whom she would be reporting. She did not see the letters or know when and to whom the letters were written, or what they said. But we do not interpret the requirement of “actual knowledge” in Rule 8.3 to require direct observation of the underlying facts that constitute a violation. One of the purposes of Rule 8.3 is to require that lawyers report misconduct when the victim is not in a position to discover it. Rule 8.3 does not require that a lawyer report every hunch about wrongdoing. But neither should it require a lawyer to conduct an independent investigation. The frank and unambiguous admission by the employing lawyer that he had sent multiple fictitious letters to this client in connection with this litigation is sufficient.

The remaining elements of the test are easily met. It is clear that the subordinate lawyer could report the violation without disclosing client confidences or secrets. The only “secret” here was that the employing lawyer was deceiving the client. The third and fourth tests, involving the violation of a disciplinary rule that affects the lawyer’s honesty, trustworthiness, or fitness to practice, are also clearly met. The employing lawyer’s agreement to notify the client of the fictitious letters does not alter this conclusion, since the violation involved the very serious offense of deliberately lying to the client. Inquirer therefore must report the employing lawyer to Bar Counsel.

Conclusion

In Opinion 246, we recognized that the judgment whether another lawyer’s conduct raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness is a “solemn and unenviable task.” Here, inquirer’s knowledge of serious misconduct not only required that such a judgment be made, but imposed additional duties on her.

Inquiry No. 96-3-9
Adopted: March 19, 1997

1. A lawyer’s duty not to make false statements of material fact extends as well to third parties. See Rule 4.1.
2. Rule 5.2 binds a subordinate lawyer to comply with the Rules even when under the direction of another lawyer.