ETHICS COLUMN ~ Eleven Principles Related to the Duty to Report the Misconduct of Another Lawyer ~ By Alec Rothrock

Businesswoman standing under the spotlight.

Businesswoman standing under the spotlight.

Reporting the misconduct of a fellow attorney to the Office of Attorney Regulation Counsel (OARC) is serious and personal business. Even apart from the outcome, the disciplinary process is a dark cloud to live under. For most lawyers, filing a grievance is distasteful, to say the least. To be sure, lawyers are free to report another lawyer to OARC even if they have no duty to do so. Lawyers need not meet a standing requirement in order to report misconduct, and lawyers who report to OARC are entitled to broad, though not unlimited, civil immunity.1

This article discusses the circumstances in which lawyers do, may have or do not have a duty to report. The article sets forth 11 principles followed by analysis. As a point of reference, the article begins with the text of the primary part of Colo. RPC 8.3(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.”2

1. A lawyer’s failure to report another lawyer’s misconduct may subject the non-reporting lawyer to attorney discipline.

It is statistically rare for lawyers to be disciplined for failing to report the misconduct of another lawyer. Yet it has happened. The most prominent case is In re Himmel, 533 N.E.2d 790 (Ill. 1988), in which a lawyer was suspended for one year for failing to report the fact that the client’s former lawyer converted the client’s settlement funds.3

2. Lawyers have no duty to report their own misconduct.

Lawyers have no duty to report their own misconduct. Period.4 The only misconduct that a lawyer must report is that of “another lawyer.” In some instances, it is strategically prudent for a lawyer to self-report her own misconduct, but this should not be confused with an ethical duty to report. The only self-reporting obligations imposed on Colorado lawyers by the Colorado Supreme Court are the duty to self-report a criminal conviction entered against them and the duty to self-report any attorney discipline imposed on them in another jurisdiction (Colo. RPC 251.20-21).

3. Lawyers have no duty to report another lawyer’s misconduct of which they have no actual knowledge, but since actual knowledge may be inferred in the circumstances, the standard is whether a reasonable lawyer would have actual knowledge.

The duty to report arises only when a lawyer “knows” of another lawyer’s misconduct. “Knows” is defined to mean actual knowledge of the facts constituting the misconduct (Colo. RPC 1.0(f)). However, the same definition provides that a “person’s knowledge may be inferred from circumstances”: “[T]he ‘knows’ standard thus begins to merge with the ‘should have known’ standard.” 5

Although interpretations vary, the prevailing view is that whether a lawyer possesses actual knowledge is to be determined by an objective standard, i.e., whether a “reasonable lawyer under the circumstances would have formed a firm opinion that the conduct in question had more likely than not occurred.”6 Whether a lawyer has “personal knowledge” is not the standard because that question is subjective in nature.7 For example, one court found that a lawyer possessed actual knowledge because he was in possession of documents that raised more than a “mere suspicion,” though less than “absolute certainty,” that another lawyer had engaged in certain misconduct.8

CBA Formal Ethics Committee Opinion 64 states, “[w]hen an attorney is informed of an alleged ethical violation by a communication from a third party whether from a client, a fellow attorney, or otherwise but has no other information concerning the alleged violation, the attorney does not possess knowledge triggering the duty to report and does not have a duty to investigate these allegations.”9 Although CBA Opinion 64 represents the consensus view that there is no duty to investigate, one author appropriately observes that Rule 5.1, which deals with the supervisory duties of law firm “partners” (defined to include owners of professional companies), may impose on law firm partners a duty to investigate certain other lawyers in the firm.10

4. A lawyer’s knowledge that another lawyer has violated a Rule of Professional Conduct does not necessarily trigger a duty to report.

Having knowledge that another lawyer has violated a Rule of Professional Conduct does not necessarily trigger a duty to report.11 To trigger a duty to report, the misconduct must “raise [] a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects” (Colo. RPC 8.3(a)). For example, the mere filing of a motion to disqualify opposing counsel based on an alleged conflict of interest under Rule 1.7 does not necessarily mean that the moving lawyer is also required to report the conduct to bar counsel. This phrase contains both qualitative and quantitative components. Qualitatively, not all violations of the Colorado Rules of Professional Conduct reflect adversely on a lawyer’s (a) “honesty,” (b) “trustworthiness” or (c) “fitness as a lawyer in other respects.” For example, a lawyer’s knowledge that another lawyer has failed to reconcile her trust account records at least quarterly, in violation of Colo. RPC 1.15C(c), or to confirm in writing the fee agreement of a new client, in violation of Colo. RPC 1.5(b), would not likely trigger a duty to report. Standing alone, the other lawyer’s conduct may reflect poorly on her knowledge of the Colorado Rules of Professional Conduct pertaining to trust accounts and fee agreements but not on her honesty or trustworthiness.12

Nor would the other lawyer’s conduct be likely to reflect adversely on the other lawyer’s “fitness as a lawyer in other respects.” This nebulous phrase includes legal competence.13 It also signifies something akin to professional rectitude, the absence of which “lessens public confidence in the legal profession.”14 This is the professional equivalent of “I know it when I see it.”

The quantitative component is that, if the conduct reflects poorly on at least one of these three qualities, it must raise a “substantial question” in the mind of the lawyer considering whether she has a duty to report. The word “substantial” means a “material matter of clear and weighty importance” (Colo. RPC 1.0(l)). It “refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware” (Cmt. [3], Colo. RPC 8.3). “Whether an attorney has a ‘substantial question’ about a colleague’s honesty, trustworthiness, or fitness to practice law is a subjective test that requires a determination of what the attorney’s actual belief was at the time.”15

For example, CBA Formal Ethics Committee Opinion 124 concludes that a lawyer’s knowledge of a “materially impaired” lawyer’s failure to decline or terminate representation of clients would “ordinarily” raise a substantial question in the mind of the first lawyer about the second lawyer’s “fitness as a lawyer in other respects,” thereby triggering a duty to report the impaired lawyer.16 Although the CBA Ethics Committee’s conclusion came in the context of another lawyer’s impairment through marijuana as affecting her professional performance, the other lawyer’s impairment could just as easily result from the use of other substances, such as alcohol or prescription medications, or from a debilitating mental condition. Law firm lawyers having knowledge of the material impairment of a colleague may be able to avoid the unpleasant task of reporting a colleague by taking “reasonable steps to ensure that the impaired lawyer complies with the ethics rules.”17

5. A duty to report may arise even if the alleged misconduct occurs when neither the reporting lawyer nor the potentially reported lawyer is engaged in the practice of law.

A lawyer may have a duty to report another lawyer even when the misconduct occurs purely outside the practice of law.18 An ABA Formal Ethics Opinion dealt with the duty to report misconduct by a lawyer not engaged in the practice of law. It gives as examples the reporting of a lawyer employed by a company or law firm in a non-lawyer capacity; a lawyer employed by a law school faculty who reports the misconduct of another such employee; the reporting of a lawyer who engages in criminal conduct; and the reporting of a lawyer who submits false information on an employment or insurance application or who submits a false insurance claim.19

6. Lawyers having a duty to report may not be required to report the misconduct immediately, and in some situations, they should wait to report it.

Colo. RPC 8.3 is silent on the issue of when a lawyer must report another lawyer’s misconduct. The prevailing view nationally is that “reporting should be made ‘promptly.’20 On this point, CBA Opinion 64 advises lawyers to “balance the potential prejudice or damage to the client against the attorney’s duty to report, . . . and . . . report the violation as soon as practical, bearing in mind the attorney’s duties to his/her client and the judicial system.”21

CBA Opinion 64 goes on to discuss whether a lawyer should report another lawyer involved in a pending action, acknowledging that doing so “potentially adds a collateral issue which can adversely affect the fair or orderly conduct of the proceedings.”22 Somewhat cryptically, the opinion seems to conclude that, unless the other lawyer’s conduct would constitute grounds for immediate suspension under what is now C.R.C.P. 251.8, “it is usually appropriate to wait to file the request for investigation until the conclusion of the proceeding. . . .”23 Grounds for immediate suspension include conviction of a serious crime, conversion of client funds and abandonment of clients (C.R.C.P. 251.8 (a)).

CBA Opinion 64 also mentions another reason why lawyers should ordinarily wait to report until the proceeding has ended. Lawyers who file a grievance against opposing counsel during the pendency of the case risk a grievance by opposing counsel on the grounds that the reporting lawyer violated Colo. RPC 4.5(a). In relevant part, that Rule states that a lawyer may not “present or participate in presenting . . . disciplinary charges solely to obtain an advantage in a civil matter.”24 “Retaliatory” grievances often lack merit and represent nothing more than a cynical, misguided tactic to level the disciplinary playing field.

7. A lawyer who learns of another lawyer’s misconduct during the course of a representation may not report it if Colo. RPC 1.6 would prohibit disclosure of the necessary information.

A lawyer may not report another lawyer if Colo. RPC 1.6 would prohibit disclosure of the necessary information. Colo. RPC 8.3(c). Colo. RPC 1.6(a) requires lawyers to treat as confidential “information relating to the representation.” The phrase “information relating to the representation” includes but goes well beyond communications protected by the attorney-client privilege. Colo. RPC 1.6(a) “applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source” (Cmt. [3], Colo. RPC 1.6).

As a practical matter, when reporting another lawyer’s misconduct would require disclosure of information protected under Rule 1.6, Rule 8.3(c) gives clients a right to veto the reporting. “Stated more bluntly, Rule 1.6 trumps Rule 8.3.”25 In such circumstances, a lawyer is encouraged to urge the client to consent to the disclosure, provided that reporting the misconduct would not “substantially prejudice the client’s interests.”26 Client consent would not be necessary if an exception to Colo. RPC 1.6 permitted or required disclosure, but it is difficult to conceive of an exception that would authorize disclosure to bar counsel, as opposed to other persons.

8. OARC is an “appropriate professional authority” to which a lawyer may report another lawyer’s misconduct, but it may not be the only appropriate professional authority.

Colo. RPC 8.3(a) requires lawyers to inform the “appropriate professional authority.” CBA Opinion 64 states that lawyers may report misconduct to the Colorado Supreme Court Office of Disciplinary Counsel. The successor to that office is the OARC. A Comment to Rule 8.3 states that “[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.”27 Reporting misconduct to a tribunal or to a lawyer assistance program, such as the Colorado Lawyers Assistance Program (COLAP), is generally considered insufficient to discharge the duty.28

The Committee on Conduct of the United States District Court for the District of Colorado is probably an appropriate professional authority for purposes of reporting misconduct related to a federal case.29 By the same reasoning, if the lawyer who engaged in the misconduct is not admitted to practice in Colorado, or her misconduct occurred in another jurisdiction in the course of representing a client, it would be sufficient to report the lawyer, respectively, to an appropriate disciplinary agency in a jurisdiction where the other lawyer is admitted to practice or in the jurisdiction where the misconduct occurred.

9. The duty to report is applicable even if the lawyer to be reported is under suspension, on inactive or disability inactive status, or is not admitted to practice law in Colorado.

The duty under Rule 8.3(a) to report “another lawyer” is applicable even if that other lawyer is not authorized to practice law in the jurisdiction, whether because she is on a form of inactive status; she is under disciplinary or administrative suspension; or she is admitted to practice law only in other jurisdictions.30 There is no duty to report a disbarred lawyer, because disbarred lawyers, having been removed from the roll of attorneys, are not lawyers anymore.31

10. A lawyer still has a duty to report even if the other lawyer already has been reported by someone else.

Nothing in Colo. RPC 8.3 relieves a lawyer from reporting another lawyer’s misconduct, when required, because someone else has done so already.32 However, while encouraging lawyers to “err[ ] on the side of ensuring that all necessary information is reported,” one ethics committee encourages lawyers to exercise a “good measure of judgment” to avoid a “proliferation of cumulative reports.”33 “If an attorney is confident that a complete and accurate report of another attorney’s misconduct already has been made to bar authorities sufficient to trigger an appropriate investigation under the circumstances, there is no reason to require an additional, superfluous report.”34

11. A lawyer is not required to report when the other lawyer consults the first lawyer about the misconduct or when the lawyer learns of the misconduct through service on a “lawyers’ peer assistance program” approved by the Colorado Supreme Court.

The duty to report “does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question” (Cmt. [4], Colo. RPC 8.3). Nor does it apply when the lawyer learns of the misconduct when participating in a “lawyers’ peer assistance program” approved by the Colorado Supreme Court. The “lawyers’ peer assistance programs” include the CBA Ethics Committee, COLAP and CLHL. D

Alec Rothrock is a shareholder with the Greenwood Village law firm of Burns Figa & Will, P.C. and an adjunct professor of legal ethics at the University of Denver Sturm College of Law. Rothrock is a former chair of the Colorado Bar Association Ethics Committee and can be reached at arothrock@bfwlaw.com.

Notes

1 See C.R.C.P. 251.32(e) (immunity); People v. Rasure, 202 P.3d 1215 (Colo. PDJ 2007) (violation of immunity rule where lawyer sued lawyers in federal court for filing grievance against him or providing related information to OARC).
2 Colo. RPC 8.3(a).
3 See also V. Johnson, “Legal Malpractice Litigation and the Duty to Report Misconduct,” 1 St. Mary’s J. Legal Mal. & Ethics 40 n. 19 (2011) (collecting cases in which lawyers have been disciplined for failing to report other lawyers’ misconduct).
4 Annotated Model Rules of Professional Conduct 663 (ABA 8th ed. 2015) (collecting authorities).
5 Attorney U v. Mississippi Bar, 678 So.2d at 972 (quoting G. Hazard, Jr., and W. Hodes, The Law of Lawyering § 402 (1993)).
6 American Bar Association (ABA) Formal Op. 04-433, “Obligation of a Lawyer to Report Professional Misconduct by a Lawyer Not Engaged in the Practice of Law” (Aug. 25, 2004) (citations omitted).
7 Attorney U v. Mississippi Bar, 678 So.2d 963, 972 (Miss. 1996).
8 Skolnick v. Altheimer & Gray, 730 N.E.2d 4, 14-15 (Ill. 2000).
9 CBA Formal Ethics Op. 64, “Duty of Attorney to Report an Ethical Violation,” adopted April 23, 1993, revised June 15, 1996, 26 The Colorado Lawyer 180, 181 (June 1997) (CBA Opinion 64); see 678 So.2d 963 (client’s uncorroborated statement to lawyer that he entered into unethical fee-splitting arrangement with another lawyer insufficient to trigger duty to report).
10 A. Greenbaum, “The Attorney’s Duty to Report Professional Misconduct: A Roadmap for Reform,” 16 Geo. J. Legal Ethics 259, 293-94 (Winter 2003).
11 See Cmt. [3], Colo. RPC 8.3 (prior rules in many jurisdictions requiring lawyers to report every Rule violation proved “unenforceable”).
12 See 2 Hazard, Jr. et al., The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct § 64.3, at 64-6 (3d ed., 2012 Supp.) (“Merely technical violations of the conflict of interest rules . . . would not qualify [under Rule 8.3], whereas destruction of evidence under subpoena, suborning perjury, or self-dealing with trust funds assuredly would.”).
13 See CBA Formal Ethics Op. 124, “A Lawyer’s Medical Use of Marijuana,” adopted April 23, 2012, addendum December 10, 2012. (For a lawyer’s personal use of marijuana to be in violation of federal law but in compliance with state law does not, in itself, reflect adversely on lawyer’s fitness as a lawyer.)
14 Iowa Sup. Ct. v. Marcucci, 543 N.W.2d 879, 882 (Iowa 1996); see also ABA Formal Op. 08-453, “In-House Consulting on Ethical Issues” (Oct. 17, 2008) (“It generally is agreed that reporting under [Rule 8.3] is required only when the conduct in question is egregious and ‘of a type that a self-regulating profession must vigorously endeavor to prevent.’”).
15 Board of Overseers of Bar v. Warren, 34 A.3d 1103, 1110 (Me. 2011).
16 CBA Opinion 124 at 30 (citing ABA Comm. on Ethics and Prof. Resp., Formal Op. 03-431 “Lawyer’s Duty to Report Another Lawyer Who May Suffer from Disability or Impairment,” n. 6 (2003)).
17 Id.
18 ABA Formal Op. 04-433, “Obligation of a Lawyer to Report Professional Misconduct by a Lawyer Not Engaged in the Practice of Law” (Aug. 25, 2004) (ABA Opinion 04-433).
19 Id.
20 South Carolina Bar Ethics Advisory Committee (July 18, 2016), 2016 WL 6659131.
21 Id. See also 26 The Colorado Lawyer at 181 (June 1997).
22 Id.
23 Id.
24 Colo. RPC 4.5(a).
25 ABA Opinion 04-433.
26 Cmt. [2], Colo. RPC 8.3.
27 Id.
28 Annotated Model Rules of Professional Conduct 666 (ABA 8th ed. 2015) (collecting authorities).
29 2 Hazard, Jr. et al., The Law of Lawyering § 68.06, at 68-17 (4th ed. Supp. 2017).
30 Annotated Model Rules of Professional Conduct 663 (ABA 8th ed. 2015) (collecting authorities).
31 Illinois Op. 88-17 (May 10, 1989); but see In re Tolchinsky, 740 So.2d 109 (La. 1999) (disbarring attorney for, inter alia, failing to report disbarred lawyer-employee).
32 See Himmel, 533 N.E.2d at 792 (client’s complaint of misconduct to Illinois bar counsel no defense to duty of lawyer with knowledge of same misconduct to report it). Cf. In re Hickox, 57 P.3d 403, 407-08 (Colo. 2002) (lawyer’s ex-wife’s report of his criminal conviction to OARC did not relieve him of duty to report pursuant to C.R.C.P. 251.20(b)).
33 Arizona Supreme Court Judicial Ethics Advisory Committee Opinion No. 90-13, n. 8, 1990 WL 10521402 (Oct. 16, 1990).
34 Id.

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