Lawyers Must Report Non-Practicing Lawyer Misconduct, But Need Client Consent if Report Would Expose Confidences
CHICAGO, Nov. 19, 2004 — Lawyers have an ethical obligation to report misconduct by other lawyers, if the misconduct raises a substantial question about the offending lawyer’s honesty, trustworthiness or fitness to practice law. They must report the misconduct even if it occurs totally removed from legal practice, and even if the misbehaving lawyer does not practice law.
But if reporting another lawyer’s misconduct to disciplinary authorities would reveal client confidences, the lawyer considering making the report must first obtain the client’s consent. In practical terms, clients may have a variety of reasons to refuse consent, and little incentive to grant it.
These are the conclusions of an ethics opinion issued today by the American Bar Association Standing Committee on Ethics and Professional Responsibility.
The opinion identifies a variety of circumstances in which lawyers may learn of misconduct by other lawyers who are not acting in a legal capacity. They may work together for a corporation, one of them in a non-legal capacity. They may be law school faculty colleagues, with one of them also practicing law, or both may work in a law firm, one of them functioning as an in-house accountant.
The misconduct may be criminal; may involve dishonesty, fraud, deceit or misrepresentation; or may even be minor. But minor acts of misconduct that are repeated may indicate an indifference to legal obligations. Although reporting a colleague may be awkward, the committee concedes, neglecting to do so can compromise the independence of the profession and the public interest.
However, the duty of confidentiality “trumps” the reporting obligation, and covers all information relating to the representation of the client, says the committee. In the corporate environment, confidentiality protects any communication between the corporation’s lawyer and any constituent of the organization in any organizational capacity. “[T]he hands of lawyers are often effectively tied in these situations by the wishes or even the whims of their clients,” according to the opinion. Although the lawyer proposing to report the misconduct can encourage the client to consent, “[a]s a practical matter, there may be little benefit for the client” in doing so.
The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions for the guidance of lawyers, courts and the public interpreting and applying the ABA Model Rules of Professional Conduct to specific issues of legal practice and client-lawyer relationships.
Copies of ethics opinions may be ordered from the ABA Service Center at 800/285-2221 or by e-mail at abasvcctr@staff.abanet.org. To obtain the opinion on reporting misconduct, ask for Formal Opinion 04-433.
With more than 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law in a democratic society.
