May vs. Must
Ethics Rules Don’t Give Lawyers Absolute Guidance on When to Report Wrongdoing
Posted Nov 29, 2005 2:22 AM CST
By Kathleen Maher
Finding the exact boundaries of the ethical obligation to report wrongdoing by others can be a great source of turmoil. What often makes the decision difficult is that a lawyer must reconcile the obligation to report wrongdoing with duties to preserve client confidences
As a result, the ethics rules don't always offer complete guidance to a lawyer trying to decide whether to report wrongdoing by a client, another lawyer or a judge, or even someone not involved in a case. While the rules generally permit lawyers to report wrongdoing, they don't always require it.
The Ethics 2000 Commission sorted through this dilemma during its comprehensive review of the ABA Model Rules of Professional Conduct.
Model Rule 1.6 (Confidentiality of Information) as revised by the House of Delegates in 2003 permits a lawyer to reveal information regarding client misconduct “to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services.” The lawyer may also reveal information to “prevent, mitigate or rectify” that injury. (Rule 1.2 prohibits a lawyer from counseling or assisting the client in conduct the lawyer knows is criminal or fraudulent.)
Other rules do require a lawyer to disclose actual or prospective client wrongdoing in certain circumstances. Rule 4.1 (Truthfulness in Statements to Others) requires a lawyer to disclose material facts to avoid assisting a client’s crime or fraud, unless that data is confidential. And Rule 3.3 (Candor Toward the Tribunal) requires a lawyer representing a client in an adjudicative proceeding who “knows that a person intends to engage in, is engaging in or has engaged in criminal or fraudulent conduct related to the proceeding” to “take reasonable remedial measures, including, if necessary, disclosure to the tribunal.”
Model Rule 8.3 (Reporting Professional Misconduct) directs a lawyer who knows that another lawyer or a judge has engaged in misconduct raising a “substantial question” about honesty or fitness to inform an “appropriate authority,” unless the information is confidential.
But what if a lawyer learns that a neighbor is dealing drugs or engaging in fraud at his business?
The Model Rules are silent on whether lawyers have an ethical duty to report criminal conduct or other wrongdoing by a nonclient or someone outside the profession. But back in 1972, the Committee on Ethics and Professional Responsibility issued an opinion advising that “there is a duty on the part of a lawyer as a good citizen to aid in the enforcement of criminal laws, ... to report unprivileged knowledge of criminal conduct to the appropriate authorities.” Informal Opinion 1210.
A few states have reached a different conclusion. In 1988, the State Bar of New Mexico advised that, generally, “a lawyer’s duty to report observed or suspected criminal activity is no different than that of any other citizen. One does not become obligated to a different or higher standard of conduct by virtue of qualifying to practice law.” Opinion 1988-8. In 1994, the Illinois State Bar Association advised that a “lawyer has no different duty than any other person to report a crime.” Opinion 94-23.
If a lawyer learns of someone else’s wrongdoing from a client, however, the ethics rules may kick in again. In 2003, Utah Ethics Opinion 03-02 advised that a lawyer, who suspected after speaking with a client and through subsequent investigation that a health care provider was fraudulently billing for services, had no ethical duty to inform law enforcement authorities and could not do so without the client’s consent.
So it’s important for a lawyer to consider whether “dropping a dime” on someone he or she does not represent might still land with a thud on a client.
Kathleen Maher, a lawyer, is with the ABA Center for Professional Responsibility.