Duty Calls

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It is an established ethics rule that a lawyer must report the professional misconduct of another lawyer if it raises a substantial question about the other lawyer’s honesty, trustworthiness or professional fitness.

That obligation extends to professional misconduct by nonpracticing lawyers, states an opinion issued recently by the ABA Standing Committee on Ethics and Professional Responsibility. Formal Opinion 04-433 (2004).

The misconduct must be reported, the ethics committee advises, even if it involves activity completely removed from the practice of law.

But if reporting another lawyer’s misconduct would require disclosing a client’s confidential information, adds the opinion, the lawyer must obtain the client’s informed consent or refrain from making the report. Stated more bluntly, notes the opinion, client confidentiality trumps the obligation to report another lawyer’s misconduct. Opinions issued by the ethics committee generally interpret the ABA Model Rules of Professional Conduct, which are the basis for most state ethics codes regulating the professional conduct of lawyers.

The ethics committee’s opinion defines a nonpracticing lawyer as one who at the time of the misconduct “did not accept engagements by clients to provide legal services and did not hold herself out as a lawyer prepared to accept such engagements.”

A Duty’s Expansive Reach

ABA Model Rule 8.3 sets forth the duty to report the misconduct of another lawyer, according to the ethics committee’s opinion.

Meanwhile, the wide variety of professional misconduct by lawyers that might be reported is described in Model Rule 8.4. For nonpracticing lawyers, criminal activity is the most obvious, and perhaps the most serious, the committee explains. Lawyers may be disciplined under Model Rule 8.4 for criminal conduct that “reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects,” even if, as some jurisdictions have held, the lawyer has not been convicted or even charged with a crime.

But Rule 8.4 also prohibits lawyers from engaging in a broad range of conduct that involves dishonesty, fraud, deceit or misrepresentation regardless of whether that conduct is criminal. “This expansive provision reaches any activity or aspect of the lawyer’s personal or professional life,” notes the opinion.

Model Rule 8.3 requires that two thresholds be met before the duty arises to report another lawyer’s misconduct: First, the lawyer must “know” of the violation, which is usually determined by an objective standard; and second, the misconduct must raise a “substantial question” as to the lawyer’s honesty, trustworthiness or fitness as a lawyer. While criminal conduct usually raises a “substantial question” as to fitness, the committee states, noncriminal conduct will almost always require a “measure of judgment,” and a lawyer who is uncertain whether she or he must report may opt to do so.

If reporting the misconduct of another lawyer would reveal information relating to a client’s representation, Model Rule 1.6 requires the lawyer to obtain the client’s informed consent before making the report.

As a practical matter, the committee observes, “Clients have the ultimate authority when it comes to protecting confidential information. Hence, however salutary and indeed important the reporting of misconduct of lawyers may be, under the Model Rules, the hands of lawyers are often effectively tied in these situations by the wishes or even whims of their clients.”

The ethics committee acknowledges in its opinion that reporting a colleague’s misconduct, particularly if that lawyer is a supervisor, can be awkward and uncomfortable, and it even may put the reporting lawyer’s career in jeopardy. But, the committee emphasizes, “Because the legal profession enjoys the privilege of regulating itself, it is critically important that its members fulfill their responsibility to stand guard over the profession’s integrity and high standards.”

Kathleen Maher, a lawyer, is with the ABA Center for Professional Responsibility.

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