To Report or Not to Report: That is the Question (Part I)
By: Arend J. Abel, Attorney
I help cover the Indiana State Bar Association’s Ethics Hotline, and one of the questions I get most often is a question like this:
“My opposing counsel did X. Do I have a duty to report to the Disciplinary Commission?”
Sometime the “X” isn’t an ethics violation at all, which makes the answer to the question easy. More often, though there is some sort of violation, so the issue of duty to report arises.
The duty to report other attorneys’ ethics violations appears in Ind. R. Prof. Cond. 8.3, which says:
(a) A lawyer who knows 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, shall inform the appropriate professional authority.
(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.
(c) This Rule does not require reporting of a violation or disclosure of information if such action would involve disclosure of information that is otherwise protected by Rule 1.6, or is gained by a lawyer while providing advisory opinions or telephone advice on legal ethics issues as a member of a bar association committee or similar entity formed for the purposes of providing such opinions or advice and designated by the Indiana Supreme Court.
(d) The relationship between lawyers or judges acting on behalf of a judges or lawyers assistance program approved by the Supreme Court, and lawyers or judges who have agreed to seek assistance from and participate in any such programs, shall be considered one of attorney and client, with its attendant duty of confidentiality and privilege from disclosure.
Let’s leave to one side the reporting of judicial misconduct under subsection (b), judge’s and lawyers’ assistance programs under subsection (d), and issues that come up on the ethics hot line or other ethics advisory opinions under the last half of subsection (c). What does that leave us with?
By parsing the language in subsection (a), we can see that a duty may be triggered if
(1) the potentially reporting lawyer knows that another lawyer
(2) has committed a violation of the Rules of Professional Conduct; and
(3) the violation raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects .
However, subsection (c) tells us that we do not have to report “if such action would involve the disclosure of information that is otherwise protected by Rule 1.6.”
That last subsection is important in answering the “do I have to report my opposing counsel” question. Chances are, your knowledge of opposing counsel’s misdeeds is a direct result of your representation of your client, and chances are the misdeeds are related to that representation.
“But wait,” you say, “what my opponent says and does isn’t privileged or confidential.” That may be, but if you conclude that means you have a duty to report, you need to take a closer look at Rule 1.6 and the Indiana Supreme Court’s interpretation of it. Rule 1.6, with exceptions not relevant here, prohibits a lawyer from disclosing “information relating to representation of a client” without the client’s informed consent. Note that the rule does not say that the information must be privileged, or even that it the information must have some level of confidentiality short of privilege. The only condition required is that the information “relate to” the representation. The Indiana Supreme Court has been very clear that this prohibition on disclosure extends even to information that is a matter of public record: “the Rules contain no exception allowing revelation of information relating to a representation even if a diligent researcher could unearth it through public sources.” In re Anonymous, 932 N.E.2d 671, 674 (Ind. 2010).
So, typically, you will not have a duty to report your opposing counsel, because the information is “protected by Rule 1.6.”
However, the comments to Rule 8.3 encourage obtaining client consent and reporting misconduct, as long as it “would not substantially prejudice the client’s interests.” It may be that reporting a violation will poison the well and make resolution of the client’s case much more difficult or expensive. Likewise, reporting the violation may require a disclosure of something that the client would prefer to keep under wraps. Whether a client’s interests would be “substantially prejudiced” is a judgment each individual lawyer must make. There are a number of other judgments that a lawyer must also make under the reporting rule in other circumstances, as we’ll see in Part II of this post.
If the reason a lawyer cannot reasonably ask a client to consent to disclosure is that a report would prejudice the current representation, the lawyer always has the option of asking the client after the representation has ended, if the possibility of prejudice to the client has likewise ended. As Disciplinary Commission staff lawyer are fond of saying “there is no statute of limitations on ethics violations.” If you have any questions, please contact us.