MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2003-05
Must an attorney who learns of another attorney’s misconduct in the course of representing a client formerly represented by the offending attorney, report the misconduct pursuant to Rule 8.3 where the client’s interests may be harmed by such reporting.
You have learned through the representation of your client that his/her former attorney has missed a filing deadline with respect to a matter he/she was handling for your new client and, as a result, has clearly caused your client damage. In addition, the facts as related in your inquiry are as follows: the former attorney forged a document and sent it to your client in an effort to convince your client that your client’s claim had been settled, that the funds had been received by the attorney, and that they would be forthcoming to your client soon thereafter – an obvious attempt to gain more time in order to come up with the funds to satisfy your client and avoid scrutiny as to the mistake the attorney had earlier made. The former attorney has revealed these facts to you and offered to make scheduled payments to your client to cover the loss caused by that attorney’s mistake. Finally, your client has fears that reporting the former lawyer’s misconduct would jeopardize his/her ability to be made whole by the offending lawyer.
You have asked the Ethics Committee for a written opinion as to your obligation, if any, to report the attorney’s misconduct.
Ordinarily, when a lawyer obtains knowledge 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, the lawyer must inform the appropriate professional authority. (Rule 8.3, Md. Rules of Professional Conduct) In Maryland the appropriate authority is the Attorney Grievance Commission. See Ethics Docket 2001-5. Conduct sufficiently serious to trigger 8.3(a)’s reporting obligation cannot be described with precision. A “substantial violation of the rules alone is not enough; the violation must be of such a nature that the conduct raises a “substantial” question about the fitness of the offending lawyer to carry out his professional role” Ethics Docket 98-3. See also Ethics Docket 92-46. The conduct here, as described in your inquiry, certainly seems to display dishonesty, deceit and misrepresentation, as well as possible incompetence, and the Committee believes it to be conduct sufficient to ordinarily require reporting.
Rule 8.3, however, has an exemption from the reporting requirement where the information received is otherwise protected from disclosure by Rule 1.6. Rule 1.6 provides that:
“A lawyer shall not reveal information relating to the representation of a client1 unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).”
Rule 1.6(b) allows, but does not require, an attorney to reveal information under certain specific circumstances, one of which [(1.6 (b) (4)] appears relevant here. Rule 1.6 (b)(4) allows revealing information relating to the representation in order “to comply with these Rules. . .”
Here you have clearly learned of the misconduct in the course of your representation of the client. That client, however, appears to have concluded that reporting the misconduct could jeopardize his/her opportunity to be made whole through a settlement with the former attorney. This issue was addressed in Ethics Docket 94-26, where the client opposed reporting the misconduct because of the fear of negative economic impact. The Committee concluded that where Rules 8.3 and 1.6 come into play in that manner, an attorney may, but is not required to, report the misconduct. The Committee has also noted in the past that in exercising the discretion to report, such factors as your relationship with your client, your own involvement in the transaction, and facts which may extenuate the conduct in question, should be considered. See Ethics Docket 92-46. Here there appears to be no ongoing fraud and it is reasonable to assume, as your client apparently does, that reporting the misconduct would be detrimental to your client.
Your client’s objective in seeking your advice is to collect the sums lost as a result of the prior lawyer’s actions. Thus you should also consider Rule 1.2 in deciding whether to report the misconduct. While the Committee can take no position on whether a suit against the former attorney, a report to the Attorney Grievance Commission, or a settlement with the lawyer with structured payments thereunder, would be the best method to attain your client’s objectives, Rule 1.2 seems to indicate that the client’s wishes should be honored.
It is clear that the rules seem to offer conflicting guidance to you. The Committee cannot, without all the facts, instruct you as to what you should do but does note that there may well be a time in the future when these conflicting obligations no longer exist. At that point, if it is even reached, your Rule 8.3 reporting obligation would require a report to the authorities.
[1] This confidentiality rule applies not only to matters communicated in confidence by the client to you, but also to all information relating to the representation, whatever its source. See Comment, Rule 1.6 and Ethics Docket 89-39; Ethics Docket 94-26; Ethics Docket 95-49.
REFERENCES:
Opinions of the Maryland Ethics Committee: 1989-39, 1992-46, 1994-26, 1995-49, 1998-3 and 2001-5.
(Available at www.msba.org)
Maryland Rules of Professional Conduct: 1.2, 1.6 and 8.3.