REPORTING ATTORNEY MISCONDUCT - MRPC 8.3

[nazareth]

Professional Responsibility Exam Hypo - Share your thoughts.

Attorney A has received information which, if true, would indicate that attorney B has committed acts of professional misconduct which possibly would require a disciplinary complaint to the Bar pursuant to MRPC 8.3. Attorney B is either licensed in this State or was admitted pro hac vice in litigation pending in this State. The possible misconduct related to and occurred in litigation which occurred in this State.

The information relating to the misconduct of attorney B was disclosed in a deposition taken in a case pending in this state. Attorney B denies the allegations of misconduct. Attorney A did not attend the deposition and has no basis on which to determine the credibility of either the deponent or Attorney B. Attorney A's client does not want Attorney A to report the misconduct unless required by ethic rules, fearing that the report may lead to additional litigation involving the client.

Questions presented:

1. Is the reporting obligation under MRPC 8.3 superceded by MRPC 1.6 which prohibits an attorney from revealing information relating to the representation of a client?

2. Is Attorney B's denial sufficient to remove the reporting obligation, if any, of Attorney A?

[tacojohn]

I don't have my rule book handy, but let me venture a guess.  There may be an exception in 1.6 to reveal confidences if required by law or court order.  A reporting requirement in the controlling ethics rules would suffice.  The denial wouldn't suffice because you have hard evidence.  That's a really simplistic analysis though.

[Italian2L]

1) 8.3(c) states that information protected under Rule 1.6 does not have to be reported. In order to come within the purview of 1.6, the information merely has to be related to Attorney A's representation of the client. The question implies that this is, in fact, the case because the entire reason Attorney A is considering not disclosing it is because doing so might involve his client in more litigation. It is immaterial that the information was learned from a 3rd party (the person who took the deposition I am assuming) because the duty of confidentiality applies regardless of how the information was originally learned. Even though 1.6 trumps 8.3, Attorney A will most likely still need to reveal the information after his representation of the client would no longer be affected by disclosure, even though the duty of confidentiality extends to former clients, if he was in a state that has adopted the 'Himmel Rule'. The Himmel court held that a lawyer can be disciplined for not reporting the misconduct of another lawyer even in the face of a 1.6 duty when the matter involving his client had been settled out of court and the evidentiary privilege would not have applied. Here the attorney-client evidentiary privilege would not apply because the lawyer learned the information originally from a third party. 

2) While a simple denial, without more, should not be enough to remove an obligation to report, that obligation never existed in this case to begin with. 8.3(a) only requires disclosure if the attorney "knows" that the other lawyer actually committed the violation. Rule 1.0(f) defines "knowingly" as actual knowledge of the fact in question. Actual knowledge can also be inferred from the circumstances. Attorney A did not have actual knowledge b/c he did not actually attend the deposition. Furthermore, actual knowledge cannot be inferred from the circumstances because Attorney  A has no basis upon which to determine the credibility.

[TouchesnConcerns]

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.

[burningpeach]

LOL Touches, I saw your other post too!

[IQT]

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.

Anyone what this exception says in particular?

[ecce]

A lawyer who knows another lawyer has violated the Rules of Professional Conduct should report that misconduct to the state appropriate disciplinary body. However, that duty is usually aspirational in nature. A lawyer who fails to report another lawyer for such known violations will not be disciplined by the disciplinary system for failing to do so. Under Rule 8.3(a) of the ABA's MRPC, and similar rules in many jurisdictions, however, that same duty to report is mandatory, and failure of a lawyer to report another lawyer's known ethical misconduct is conduct subject to discipline.

For the misconduct to be reportable, the lawyer must "know" that another lawyer has committed the misconduct with knowledge being actual knowledge and not merely a suspicion. Further, the known misconduct must raise a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer. Known violation by a lawyer of certain ethical provisions would clearly seem to raise substantial questions about a lawyer's honesty, trustworthiness or fitness as a lawyer.

[gabry]

Lawyers lead the nation in snitching!

[jdmaxey]

From the facts given: Attorney A does not have sufficient information to "know" that attorney B has engaged in misconduct. Simple allegations by a client or third party are not enough. Also and important for this hypo, the MPRC does not place a duty to investigate on attorney A into the matters relating to the supposed misconduct. Attorney A would be well served by disregarding the matter until further evidence surfaces to cross the threshold into "knowing."

The discussion of the rules is great for us here in academia, but the practical application might be another thing. From what I've been told (note the strong disclaimer) there is really very little "snitching" done between lawyers in this nation with one exception. Frequently opposing attorneys will report "misconduct" to the state in order to gain a tactical advantage at trial.

In this hypo I believe that Attorney A would hurt himself in the legal community by being so eager to report something that he only learned about by testimony of a client fearing litigation. I know I would be hesitant about working with him. Not because I would be doing anything wrong, just because I would be worried he could receive bad information and then I would be standing tall in front of a bar disciplinary panel defending myself. That would ruin my day!

[Tina Tina]

Are you a lawyer by now, jdmaxey?