To report or not to report: Part II
By: Arend J. Abel, Attorney
In Part I of this article, we explored a lawyer’s duty to report misconduct by opposing counsel in a representation and saw that the duty hinges on whether there is client consent to the report and that a lawyer cannot even ask the client to consent if the report would prejudice the client’s interest. This Part will explore the lawyer’s duty to report misconduct if those complicating factors aren’t present, for example where the lawyer learns of the misconduct outside the context of the lawyer’s representation of a client, or in instances where the client consents.
In such circumstances, the elements of the general duty to report come into play. Again, under the text of Rule 8.3(a), the duty to report is triggered, absent some exception, if:
- the potentially reporting lawyer knows that;
- another lawyer
- has committed a violation of the Rules of Professional Conduct; and
- the violation raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects .
Each of the “elements” raises questions of interpretation.
First, when does one lawyer “know” that another lawyer has violated the rules? The Rule is clear that actual knowledge is required, not mere suspicion or even reasonable belief (at least where it would also be reasonable to believe that the other lawyer has not violated the rules. E.g. N.Y. Eth. Op. 854 (Westlaw – subscription required). However, a “clear belief” may be sufficient. Id.
Second, the reference to “another lawyer” means that Rule 8.3 does not impose a self-reporting requirement. A lawyer who has committed a violation, however, must comply with other rules that require self-reporting, such as Admission and Discipline Rule 23, § 28, which requires an attorney disciplined in another jurisdiction to report that discipline, or § 11.1(a)(2), which requires an attorney to report any finding of guilt on a criminal charge.
Unlike the situation concerning conflicts of interest, all lawyers in a firm are not treated as a single lawyer. Thus, where one lawyer in a firm knows that another of the firm’s lawyers has committed a violation that otherwise satisfies the reporting requirement must report that violation unless non-disclosure is permitted by one of the exceptions to reporting, discussed in my previous post. For example, the Rule 1.6 exception means that in-house counsel at a firm, or outside ethics counsel, need not report a violation of which counsel learns as a result of representing the firm. See American Bar Association Formal Ethics Opinion 08-453. In fact, Rule 1.6 may prohibit the firm’s counsel from doing so, although counsel may advise the firm to disclose, as long as such advice does not conflict with counsel’s duty to the client.
The third element, whether the other lawyer has violated a Rule of Professional Conduct. In some circumstances, determining whether the conduct of the lawyer was a violation of one of the Rules is straightforward. For example, if the other lawyer knowingly deceived a court, it would be clear that the conduct violated Rule 3.3. Other violations, particularly those involving conflicts of interest, may be less clear. See Pa. Eth. Op. 97-40.
The final element, that the violation “raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects,” requires a substantial measure of judgment by the reporting lawyer, as Comment  to Rule 8.3 states: “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.” Thus, the lawyer assessing a potential duty to report must evaluate the “seriousness of the possible offense.” Id. As Comment  to the Rule states, “Reporting a violation is especially important where the victim is unlikely to discover the offense.”
Read together, the Rule and its comments suggest that it is violations that carry with them a risk of harm to clients or the judicial system that are the most obvious candidates for a mandatory duty to report. On the other hand, purely technical violations of the advertising rules, are much less likely to give rise to a mandatory duty to report.
A lawyer faced with knowledge that another lawyer has violated the Rules must carefully consider issues relating to the duty to report. Although ethics prosecutions for violation of the mandatory reporting are rare, they do sometimes occur. Contact us for a free consultation.