I have served
on the Colorado Bar Association’s Ethics Committee for nearly 30 years. During most of this time I have been a member
of its telephone Hotline group, commonly known as the “Calling Committee” – or
as I like to refer to it, “Stump the Ethicist.”
The Calling Committee functions as the first, and often the last,
interface between the Ethics Committee and members of the Bar who have an
ethics question. It is interesting and valuable
work; I’ve learned a lot.
Callers
generally fall into three broad categories: those suddenly confronted with a
serious ethical issue, such as a perjurious client; those seeking a sounding
board and validation for a conclusion they have already reached; and those who
feel they are being abused by the conduct of another attorney. The first and second types of callers are the
raison d’être for the Calling
Committee. The third type we have a
bylaw to protect us from. Simply stated,
this bylaw provides that the Calling Committee will not opine regarding the
ethical conduct of anyone other than the caller. The Calling Committee is not a playground
monitor, nor do the pro bono services
of its members extend to serving as consulting experts in such disputes.
Most callers
understand the necessity for this bylaw.
Others – being lawyers and thus not easily dissuaded by something as
pedestrian as a bylaw – will attempt to indirectly elicit the very opinion they
have just been told will not be forthcoming by recasting their query as a
question under Rule 8.3, the duty to report another attorney’s misconduct. A very junior member of the Calling Committee
might fall for this ruse, but wily veterans do not. Still, questions regarding Rule 8.3 arise
with sufficient frequency that, whether legitimate or not, it is worth
examining what obligations are created by this Rule and, as importantly, what are
not.
Rule
8.3
Colo. Rule 8.3 consists of
three subsections, each pregnant with meaning.
Of these, only subsections (a) and (c) are pertinent to our discussion (subsection
(b) concerns a lawyer’s obligation to report a judge’s violation of the rules
of judicial conduct):
(a) A lawyer who knows that another lawyer has committed
a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness
or fitness as a lawyer in other respects, shall inform the appropriate
professional authority.
. . . .
(c) This Rule does not require disclosure of information
otherwise protected by Rule 1.6 or information gained by a lawyer or judge while
serving as a member of a lawyers’ peer assistance program that has been
approved by the Colorado Supreme Court initially or upon renewal, to the extent
that such information would be confidential if it were communicated subject to
the attorney-client privilege.
(Emphasis added.)
You Either Know Something or You Don’t. Maybe.
Subsection (a) is not triggered unless a lawyer “knows” of a
rule violation – a defined term under the Rules of Professional Conduct. Mere suspicion is not enough. Rule 1.0(f) states, “‘[K]nows’
denotes actual knowledge of the fact
in question,” a seemingly bright-line rule.
However, the second sentence of Rule 1.0(f) adds, “A person’s
knowledge may be inferred from circumstances.”
Determining whether a lawyer has “actual knowledge” of a rule violation
is relatively easy; determining whether knowledge of another lawyer’s rule
violation should be “inferred from circumstances” is considerably more
difficult. Is “inferred knowledge”
sufficient to trigger Rule 8.3’s duty to report?
When Should Knowledge be Inferred
It is axiomatic that “knowledge may be inferred from circumstances.” The pertinent question, though, is “what
circumstances are sufficient to fairly charge a lawyer with having ‘knowledge’ sufficient
to trigger a duty to report under Rule 8.3?”
Notably, Rule 1.0(f) does not state that an inference must be
“reasonable” to constitute “knowledge,” although Rule 1.0(i) & (j) define
“reasonable” and “reasonable belief” a scant two subsections below. However a lesser standard than reasonableness
would be contrary to the high standard of “actual knowledge of the fact[s]”
expressed in the first sentence of Rule 1.0(f).
It would also make for spectacularly bad ethics policy.
Consider this situation: “Attorney A,” “knows” that “Attorney B” is representing multiple parties who have potentially differing interests. If a classic per se conflict of interest exists among Attorney B’s clients, e.g., Attorney B is concurrently representing both the buyer and seller in a complex real estate transaction, a violation of Rule 1.7 is a foregone conclusion.[1] In such case Attorney A “knows” that Attorney B has committed a violation of Rule 1.7 and may have a duty to report Attorney B’s misconduct.
However, rarely are conflicts of interest so blatant. For example, Attorney B may permissibly concurrently represent multiple parties as co-defendants in litigation by
complying with
Rule 1.7(b). Attorney A would know of Attorney B’s multi-party
representation from the pleadings, but is unlikely to know whether each client has given “informed consent, confirmed in
writing.” See Rule1.7(b)(4). In such a case, and in
many others where the conflicts analysis is nuanced, the analysis of whether
the Attorney A has a duty to report Attorney B should terminate four words into
Rule 8.3(a). Attorney A should not be required to
investigate whether Attorney B has complied with Rule 1.7(b), and no “inferred
knowledge” should be imputed to Attorney A under these facts.
A workable standard, requiring a quantum of evidence sufficient to draw a reasonable inference, was adopted by the Supreme Court of Illinois in Skolnick v. Altheimer & Gray, 730 N.E.2d 4 (Ill. 2000):
Upon review of ethical opinions from other states, the ABA has concluded that the "knowledge" requirement of Model Rule 8.3 requires "more than a mere suspicion" but need not amount to "absolute certainty." Annotated Model Rules of Professional Conduct 555 (3d ed.1996).
We have examined the documents
filed under seal in support of Kass' motion to modify the protective order. We
will not divulge the contents of the documents, but we are satisfied that the
information contained in the documents raises more than a mere suspicion of
misconduct by Kenneth Skolnick. Kass
could reasonably infer from the circumstances of the events revealed by the documents that conduct
of the sort described in Rules 8.4(a)(3) and 8.4(a)(4) had occurred. Therefore,
Kass possessed adequate knowledge to trigger the reporting responsibilities
under Rule 8.3.
730 N.E.2d at 14-15 (emphasis added). See
also Attorney U. v. Miss. Bar, 678 So.2d 963 (Miss. 1996) (“[The] standard must be an
objective one, . . . not tied to the subjective beliefs of the lawyer in
question”); Ky. Ethics Op. E-430 (2010) (“While lawyers cannot turn a blind eye to obviously
questionable conduct, as a general rule they do not have a duty to investigate”). Regulators everywhere should exercise similar
restraint in substituting “inferred knowledge” for actual knowledge; there are numerous
situations where knowledge cannot be reasonably inferred. 
The Colorado Approach to “Knowledge”
The Colorado Comments to Rule 1.0(f) support a heightened
standard of “knowledge” for Rule 8.3 violations:
In considering the prior Colorado
Rules of Professional Conduct, the Colorado Supreme Court has stated,
"with one important exception involving knowing misappropriation of
property we have considered a reckless state of mind, constituting scienter, as
equivalent to 'knowing' for disciplinary purposes." In the Matter of
Egbune, 971 P.2d 1065, 1069
(Colo.1999). See also People
v. Rader, 822 P.2d 950 (Colo. 1992); People v. Small, 962 P.2d 258,
260 (Colo. 1998). For purposes of applying the ABA Standards for
Imposing Lawyer Sanctions, and in determining whether conduct is fraudulent,
the Court will continue to apply the Egbune
line of cases. However, where a Rule of
Professional Conduct specifically requires the mental state of
"knowledge," recklessness will not be sufficient to establish a
violation of that Rule and to that extent, the Egbune line of cases will not be
followed.
The cases cited in Colorado Comment [7A] for the proposition
that recklessness conduct may be treated as “knowing” conduct in cases of fraud
all involve situations where an attorney was the primary actor in violating an ethics rule. Permitting a showing of “recklessness”
to establish mens rea in such cases is
well grounded in the law of fraud and deceit.
That said, exporting this line of authority to “secondary”
violations under Rule 8.3 – that is, to
misconduct based solely on the failure of an otherwise blameless attorney to
report the primary misconduct of another lawyer –would be both unfair and unworkable. While self-policing is essential to the
operation of a self-regulating bar, it would be disastrous ethics policy to
impose sanctions upon an otherwise innocent “bystander” attorney for failing to
report another’s misdeed based upon any standard other than actual knowledge,
or at the very least, substantial circumstantial evidence of another’s misconduct.
Requiring a bystander attorney to report another lawyer’s
misconduct based solely on “inferred knowledge,” upon peril of being disciplined should some disciplinary prosecutor later find the bystander's powers of observation and/or deductive reasoning wanting, would created an incentive to report every suspected rule violation. This would be fundamentally unfair to the
bystander attorney, as well as to many attorneys being reported, and would swamp
disciplinary regulators with more precautionary requests for investigation than
they could possibly handle. The Colorado
Supreme Court has wisely held that “recklessness”
will not be substituted for “knowledge” where a rule requires a showing of “knowledge.” By extension, evidence required to establish
a culpable mental state for a Rule 8.3 violation based on “inferred knowledge”
should be substantial.
A “Substantial Question”
Even if an attorney “knows” that another lawyer has violated
an ethics rule, there may not be a duty to report. Not any old rule violation will do – Rule 8.3(a)
has other prerequisites before a duty to report arises.
Specifically, the known violation must raise “a substantial
question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in
other respects,” i.e., it must raise a
fundamental question regarding a lawyer’s character which goes to the very heart
of what it means to be an attorney.[2] For example, in Rhode Island Supreme Court
Ethics Advisory Panel, Op.2006-04 (Oct. 12, 2006), the panel found that there was no obligation for
bystander attorneys to report violations of the duties of diligence (Rule 1.3) and communication
(Rule 1.4), by a colleague
who failed to timely file final judgments in several divorce cases. In reaching this conclusion the panel cited Comment [3] to Rule 8.3:
If a lawyer were obliged to report every violation of the Rules, the failure to report any violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. 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. The term "substantial" refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances. Similar considerations apply to the reporting of judicial misconduct.
(Emphasis added.)[3]
Sidebar brawl: Dealing with Unprofessional Attorneys
Although an attorney being victimized by odious opposing
counsel almost always feels that such conduct raises a Rule 8.3(a) question,
mere rudeness or sharp practice alone does not, per se, raise “a substantial question” regarding whether someone is
“unfit” to be a lawyer. Further, if the
goal of reporting, or threatening to report, such conduct is to abate it, there
is no guaranty that doing so will cow an antagonistic attorney into docility;
often the effect is more akin to waiving a metaphoric red cape before a mad
bull.
The Office of Attorney Regulation Counsel is known for
thoroughness and deliberateness in action, not haste. It eschews the role of playground monitor to members
of the bar with as the same zeal as the Calling Committee. A local bar professionalism committee, such
as the Denver Bar Association’s Professionalism Conciliation Panel Program, is
far more adroit and experienced at behavioral interventions, and successful in dealing
with boorishness barristers, than either the Ethics Committee or the OARC. Usually staffed by prominent lawyers, the implicit
threat or belief by a bullying lawyer that her behavior may become common
knowledge in the bar is often sufficient to correct what amounts to
unprofessionalism without resorting to throwing a disciplinary penalty flag.
Further, an attorney who attempts self-help by threatening to grieve opposing counsel
must be mindful of Rule 4.5(a),
which provides:
A lawyer shall not threaten
criminal, administrative or
disciplinary charges to obtain an advantage in a civil matter nor shall a
lawyer present or participate in presenting criminal, administrative or
disciplinary charges solely to obtain an advantage in a civil matter.
(Emphasis added.)
From my experience, an attorney who didn’t get the memo that
“scorched earth” lawyering went out of vogue in Colorado in the early 1980s
will blithely ignore every other Rule
of Professional Conduct, but has Rule 4.5(a) committed to memory, and will routinely
counter any suggestion that her professional conduct is less than entirely above
reproach by citing it.
For this very
reason the Ethics Committee lobbied for, and the Colorado Supreme Court
adopted, Rule 4.5(b), a
safe harbor, which allows “a lawyer to notify another person in a civil matter
that the lawyer reasonably believes that the other’s conduct may violate
criminal, administrative or disciplinary rules or statutes.” Any attorney contemplating lobbing an alleged
rule violation at another would be wise to do so only in writing, and draft such
missive with a copy of Rule 4.5(b) planted firmly on her lap.
But Wait . . . There’s More: The Preclusive Effect of Rule 1.6
Assuming the prerequisites of Rule 8.3(a) are met – that an
attorney has actual knowledge of a rule violation that raises a substantial
question about the honesty, trustworthiness or fitness of another lawyer – the
first clause of Rule 8.3(c)
amounts to a virtual “free pass” not to
report misconduct, as generous as any ever devised. Specifically, Rule 8.3(c)
states, “This Rule does not require disclosure of information otherwise
protected by Rule 1.6 . . . .”
Rule 1.6, in turn, requires:
A lawyer shall not reveal information relating to the representation of a client unless the client gives
informed consent, the disclosure is impliedly authorized in order to carry out
the representation, or the disclosure is permitted by paragraph (b).
(Emphasis added.) Rule
1.6 is not a restatement of the attorney-client privilege. Rather it is a prohibition against disclosure
of any information relating to the
representation of a client. It matters
not that the information is common knowledge, recorded in public records, or
reported on the front page of every newspaper in the free world, and lawyers
have been disciplined for not understanding and observing Rule 1.6’s breadth.[4]
If a lawyer keeps good professional company, knowledge of
another attorney’s misconduct is most likely to be acquired in the course of
representing clients. Accordingly, Rule
1.6 is likely to apply in most cases where a duty to report might otherwise
exist. In such cases, “[s]tated . . .
bluntly, Rule 1.6 trumps Rule 8.3.” ABA Formal
Opinion 04-433 (Aug. 25, 2004). Although
Colo. RPC 1.6(b) enumerates
seven exceptions to the fundamental rule that a lawyer may not reveal
information relating to the representation of a client without the client’s
informed consent, as ABA Opinion 04-443 observes, “those exceptions seldom will
come into play in the context of reporting the misconduct of another lawyer.” In fact, the only exception likely to apply
is Rule 1.6(b)(5): “A lawyer may reveal information relating to the
representation of a client to the extent the lawyer reasonably believes
necessary . . . to secure legal advice about the lawyer's compliance with these
Rules . . . .”[5]
An attorney has no affirmative duty to request that her client
consent to disclosure of opposing counsel’s ethical violations, and there are often
sound reasons not to make such a request.
First, as discussed above, throwing down an ethical gauntlet during an
ongoing dispute may only escalate animosity, entrench positions, and extinguish
any possibility of a speedy and cost-efficient resolution for the client[6]. Second, the client may not want to become a
potential witness in a disciplinary proceeding, a possibility a lawyer
requesting a waiver should disclose and discuss with her client as part of
obtaining “informed consent.”
Third, where an ethics violation is discovered while a
dispute is ongoing, a report may be perceived as tactical and discounted by
those charged with enforcing adherence to ethics rules. As Chief Judge Finesilver once observed, “We
also recognize that counsel can approach the Code and Canon 5 as another arrow
in his quiver of trial tactics.” Greenbaum-MountainMort. Co. v. Pioneer Nat'l Title Ins. Co., 421 F.Supp.
1348, 1354 (D. Colo. 1976). Although such
discounting may be mitigated by waiting to report a violation until after a
dispute is successfully resolved, see Colo.
Bar Ass’n EthicsOp. 64, Duty of Attorney to Report an
Ethical Violation (April 23, 1983; amended June 15, 1996) (“finding it is
usually appropriate to wait to file the request for investigation until the
conclusion of the proceeding“)[7],
where a miscreant attorney has been successfully disqualified in a litigation
matter, this may be deemed sufficient punishment by the “appropriate
professional authority.”[8]
Finally, there is a natural tendency of attorneys to avoid
reporting other lawyers[9],
which goes well beyond any notion of the “Brotherhood (or Sisterhood) of the bar”;
only a lawyer utterly lacking introspection has never paused while reading a
disciplinary report and thought, “There but for the grace of God go I.”
Colo. RPC8.3(a), and most state enactments of Rule 8.3, avoid the Constitutional
issue of whether imposing a duty to self-report would violate the Fifth Amendment guarantee against self-incrimination by limiting the duty to
report to the conduct of “another lawyer.”
However, some states, such as Alabama, Maine, and Ohio have
no such limitation. In those states an
attorney who fails to self-report may theoretically be disciplined for that
violation. Further, because there is a
duty to self-report, the act of self-reporting may not be considered a
mitigating factor in assessing discipline.
See, e.g., Ohio Bd. Comm’rs on Griev. & Discipl., Ohio Advisory. Op. 2007-1 (Feb. 9, 2007) (Ohio lawyers are required to
self-report); Disciplinary Counsel v. Robinson,
933 N.E.2d 1095 (2010) (attorney’s self-reporting of destruction of evidence
accorded no weight in mitigation).
It is important to note that, even in states where
self-reporting is not required, if a duty to report another’s misconduct exists,
the fact that the reporting lawyer may implicate herself does not relive her of
that obligation. See, e.g., In re Rivers, 331 S.E. 2d 332 (S.C. 1984) (attorney who aided his partner in
using an investigator to improperly contact potential jurors disciplined for
failure to report partner’s misconduct as well as his own).
Collegial Misconduct
With its many off-ramps, one may wonder whether there are any situations in which a duty to report
arises under Rule 8.3. There are. There are even a few recognizable, recurring
fact patterns. Still, as one might
imagine, rare if ever is the case where Attorney B grieves Attorney A solely on
the grounds that Attorney A knowingly failed to report Attorney B’s violation
of a rule. Discovery of Rule 8.3
violations is typically more roundabout, even in states where a duty to
self-report exists.
A recurring pattern is that of a lawyer failing to report
the misconduct or incapacity of a colleague.
Consider a situation where one partner knows a member of his has
embezzled from a client, or has become so infirm as to raise a “substantial
question” as to his “fitness as a lawyer.”
“A lawyer may be impaired by senility or dementia due to age or illness
or because of alcoholism, drug addiction, 8 substance abuse, chemical
dependency, or mental illness.” ABA
Formal Op. 03-421, Lawyer's Duty to
Report Rule Violations by Another Lawyer Who May Suffer from Disability or Impairment
(Aug. 8, 2003).
Since there is typically no attorney-client relationship
between firm members or mere colleagues[10],
a duty to report normally arises in such cases.
One suspects, however, that collegial misconduct is vastly
under-reported. The social, economic,
and other pressures to not report a colleague are many and great. For this reason, a failure to comply with
Rule 8.3 is typically brought to light by external sources – an upset client,
an opposing attorney, a vigilant judge.
Once reported, an ethics investigation into the conduct of the primary
violator may sweep within the prosecutorial periphery attorneys who cannot
claim the protection of Rule 1.6, and who knew, or should have reasonably
inferred from circumstances, that there existed a substantial question
regarding their colleague’s honesty, trustworthiness, or fitness as a lawyer. The vast majority of reported cases involving
Rule 8.3 violations arise from such scenarios.
A colleagues incapacity need not always be reported under
Rule 8.3, however. If the incapacity is
the result of a mental impairment which has ended, such that a substantial risk
to the affected attorney’s ability to competently represent clients no longer
exists, or if a firm is able to substantially ameliorate potential future recurrences
by adopting sound risk management practices, such as closely supervising and
monitoring the affected attorney, there may not be a duty to report under Rule
8.3. See
ABA Formal Op. 03-429, Obligations
With Respect to Mentally Impaired Lawyer in the Firm (June 11, 2003). Cf.
Moye White LLP v. Beren, 320 P.3d
373 ( Colo. App. 2013) (finding there was no duty for the firm of an attorney
who had previously suffered from clinical depression and chemical dependency to
disclose that history to client where medical professionals had certified
attorney was fit to return to work, trial court found that at no point during
the representation was attorney "materially impaired," and firm
monitored attorney’s recovery, treatment, and work).
Anonymous Reporting: A Viable Option
When it is clear a report must be made under Rule 8.3, Comment [3] instructs that
it “should be made to the bar disciplinary agency unless some other agency,
such as a peer review agency, is more appropriate in the circumstances.” The fact that misconduct has been reported to
the tribunal in a litigation matter is usually not considered sufficient, even
if the result is disqualification of the rule-violating attorney, and
notwithstanding that a judge has an independent duty to report misconduct. See Phila. Ethics Op. 2008-12 (2009) (attorney must report opponent’s misconduct to bar
disciplinary board notwithstanding it has been reported to the trial court).
There is, however, no requirement in Rule 8.3 that the
reporting attorney identify herself to the disciplinary authorities – only that
she “inform the appropriate professional authority” of another lawyer’s misconduct. A report may be made by an attorney
anonymously, or better still by proxy, which allows the reporting attorney to
retain anonymity, and to later prove, if necessary, compliance with Rule 8.3.
Ky. Ethics Op. E-430, supra, disagrees,
stating “It is clear that an anonymous report does not comply with the rule and
affords no protection to the reporting lawyer.”
But this is mere ipse dixit,
finding no support in the language of Rule 8.3.
As discussed earlier, there are numerous valid reasons why an attorney
would not “encourage a client” to consent to the reporting of a rule violation
otherwise barred by Rule 8.3(c). Add to
this the very real fear of reprisal in the form of civil litigation and/or a
retaliatory discharge in the case of reporting the misconduct of a superior.
While anonymous reporting will undoubtedly hinder, and in
some cases cripple, prosecution of an ethics violation, disallowing anonymity is
likely to result in no reporting at all.
Although empirical studies are extremely limited and dated, such surveys
as have been done strongly corroborate the intuitive belief that attorneys have
no appetite for reporting misconduct by professional colleagues. See David
0. Burbank & Robert S. Duboff, Ethics
and the Legal Profession: A Survey of Boston Lawyers, 9 SUFFOLK U. L. Rev.
66, 99-100 (1974); Ryan Williams, Reputation and the Rules: An Argument for a Balancing Approach under Rule 8.3 of the Model Rules of Professional Conduct,
68 La. L. Rev. 931, 944-46 (2008) (discussing the Burbank and Duboff study).
As Comment[1] to Rule 8.3 declares, “[s]elf-regulation of the legal profession
requires that members of the profession initiate disciplinary investigation
when they know of a violation of the Rules of Professional Conduct.” The anecdotal and empirical evidence,
however, is that attorneys are extremely hesitant to call colleagues to ethical
account barring extraordinary circumstances.
While the danger of turning otherwise innocent bystander attorneys into
rule violators is substantially mitigated by the requirements of subsections
(a) and (c), wise regulators will welcome anonymous reporting when the
realistic alternative is deafening silence.
[1] See Restatement of the Law Governing Lawyers
§122 cmt. g(iv) (2000) (Illustrations 10, 11) (citing Baldasarre v. Butler, 625 A. 2d 458
(N.J. 1993) for the principal that such a conflict cannot be waived even if
both clients give informed consent). But see Texas Committee on Professional
Ethics Op.448 (Sept. 1987) (concluding under DR 5-105(C) that such representation
might be possible upon full disclosure of the possible effect of such
representation on the attorney’s exercise of independent professional judgment
on behalf of, and the consent of, each party).
[2] This language mirrors that of Rule 8.4(b), one of a
handful of rules which imposes attorney discipline for conduct unrelated to the representation of
client.
[3]
The wisdom of this Comment continues to be lost on Iowa, which requires members
of its bar to report every rule
violation, however slight, unless Rule 8.3(c) is applicable. See Iowa RPC 32:8.3; Iowa State Bar Ass'n Comm. on Ethics & Practice Guidelines, Op.14-02 (Oct. 24, 2014) (cautioning Iowa lawyers not to accuse another
attorney of being unethical unless they're going to report that attorney to the
disciplinary board).
[4]
Conversely, where a duty to report exists, the fact that an ethics violation is publicly known may not excuse or exonerate an attorney from the duty to
report. See Maryland Ethics Op. 2003-11 (2003) (firm members must report
colleague's conversion even if he has reported himself).
[5]
Correspondingly, Rule 8.3(c) provides that members of the Colorado Bar
Association’s Calling Committee are excused from reporting attorney misconduct learned
in the course of providing hotline support services:
This Rule does not require disclosure of information . . . gained by a lawyer or judge while serving as a
member of a lawyers' peer assistance program that has been approved by the
Colorado Supreme Court initially or upon renewal, to the extent that such information
would be confidential if it were communicated subject to the attorney-client
privilege.
[6] Comment [2] makes crystal
clear that “[a] report about misconduct is not required where it would involve
violation of Rule 1.6,” but instructs “a lawyer should encourage a client to
consent to disclosure where prosecution would not substantially prejudice the
client's interests.”
[7]
Where a duty to report does exist, an attorney may not wait indefinitely to
report another lawyer’s ethical violation.
See, e.g., In re Anderson, 769 A.2d 1282 (Vt.
2000) (nine month delay in reporting partner's mishandling of client trust
funds too long). But see In re Comfort, 159 P.3d 1011, 23
Law. Man. Prof. Conduct 328 (Kan. 2007) (finding Rule 8.3 not violated where
attorney waited three weeks after published letter accusing opposing counsel of
ethics violation to reporting him, observing “We are unwilling to use this case
as a vehicle to impose a time limit for reporting lawyer misconduct . . . .”).
[8] But see Phila. Ethics Op. 2008-12 (2009) (attorney must report opponent's misconduct to bar disciplinary board notwithstanding it has been reported to the trail court).
[8] But see Phila. Ethics Op. 2008-12 (2009) (attorney must report opponent's misconduct to bar disciplinary board notwithstanding it has been reported to the trail court).
[9] See David 0. Burbank & Robert S. Duboff, Ethics and the Legal Profession: A Survey of Boston Lawyers, 9 SUFFOLK U. L. Rev. 66, 99-100 (1974); Ryan Williams, Reputation and the Rules: An Argument for a Balancing Approach under Rule 8.3 of the Model Rules of Professional Conduct, 68 La. L. Rev. 931, 944-46 (2008) (discussing the Burbank and Duboff study).
[10]
Of course Rule 1.6 would apply to a colleague who represents an attorney, or
who receives information as part of lawyers' peer assistance program.
