Rule 8.3 requires reporting "that another lawyer has committed a violation of Rule 8.4(a)(3) or (a)(4)" unless the knowledge is "protected as a confidence by these Rules or by law."
Rule 8.4(a)(3) provides that a lawyer commits misconduct if he "commits a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." What crimes "reflect adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects"? Must all such crimes be reported, even if they have not resulted in any charges, much less a conviction? In many cases, those acts never lead to any criminal charges, much less convictions.
Rule 8.4(a)(3) has been applied or assumed to apply to a wide variety of criminal acts. These include use and possession of cocaine, assuming that possession of cocaine is reportable misconduct) and driving under the influence of alcohol). These acts need not result in a criminal conviction in order to trigger Rule 8.4(a)(3).
Reporting dishonesty, fraud, deceit or misrepresentation. Issues also arise with respect to reporting violations of Rule 8.4(a)(4). Rules 8.3 and 8.4(a)(4) require reporting of a lawyer's "conduct involving dishonesty, fraud, deceit or misrepresentation." Fraud, deceit and misrepresentation" are well understood since each is the subject of litigation and case law. Presumably the term "dishonesty" means something else, but that term is not defined in the Rules of Professional Conduct. It is reasonable to conclude that whatever it means, it must be of a similar degree of seriousness or wrongdoing as the other three terms used.
Exclusion for privileged information. Rule 8.3 provides that a lawyer need not report knowledge that is "protected as a confidence by these Rules or by law...." Here, the Rules provide some definitional help. "Confidence," the definitions state, "denotes information protected by the lawyer-client privilege under applicable law." Issues arise where the lawyer acquires the knowledge of the offending lawyer's misconduct because a client confidence is involved. Where a lawyer obtains knowledge of the misconduct from a client within an attorney-client relationship, there should be no reporting obligation as long as the circumstances indicate that the acquired information is privileged.
The most obvious situation where the information would not be privileged and the reporting requirement would apply notwithstanding the fact that the information was obtained from a client is the crime-fraud exception. There are other situations in which the exception for confidences may also not apply. Complex issues arise, for example, when information comes from a client who brings a lawyer information about another lawyer in the firm, seeks legal advice about the conduct, and indicates that he does not want it disclosed. Normally, the client would be entitled to seek advice about the conduct of the other lawyer. The client's right to confidentiality in this situation should be no different from what it would be if he had sought advice from an outside lawyer.
If, however, the reporting lawyer learns of the information other than through a confidential client communication, that lawyer will not be relieved from reporting simply because the client has asked him not to report, or because the client would benefit from the lawyer not reporting. Moreover, if the offending lawyer's actions or that of the client have misled a court, a long line of ethics opinions and rules require disclosure, even if the client ends up with a perjury prosecution. Where the client has shared privileged information with the reporting lawyer, but the exception for confidences does not apply (and thus the reporting requirement does apply), the reporting lawyer is placed in a difficult position. Under certain circumstances, otherwise privileged information may lose its privileged status when provided to a regulatory body. Therefore, care must be taken to disclose as little of the client's information as possible.