Sunday, March 8, 2015

The Duty to Report Lawyer Misconduct

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’ĂȘtre 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.

Rule 1.0,Comment [7A] (emphasis added).  

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.”


Is There a Duty to Self-Report?

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).

[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.