Does a lawyer have to tell a client she could file a bar grievance against her former lawyer?

Plain-English summary

A client approached a lawyer with a potential malpractice claim against another Alabama lawyer, whose handling of a summary-judgment motion had allegedly led to the client's case being dismissed without her knowledge. The inquiring lawyer asked whether he had any obligation to advise the client that she might have a basis to file a grievance against the prior lawyer.

The Commission concluded that the lawyer does not have an ethical obligation to advise the client that, in the lawyer's opinion, there may be a basis for filing a grievance. It reasoned that Alabama's Legal Service Liability Act (Ala. Code 6-5-578) provides that a violation, or alleged violation, of the Code of Professional Responsibility does not give rise to an independent cause of action and may not otherwise be used to support recovery in a legal-services-liability action; on these facts, where the representation involved a potential malpractice claim against the prior lawyer, there was no duty to disclose the prior lawyer's potential rule violations to the client.

The opinion then addressed the separate reporting duty. Quoting EC 1-4 and DR 1-103(B), it stated that a lawyer possessing unprivileged knowledge of another lawyer's misconduct has an obligation to report it to appropriate authorities. The Commission applied a reasonableness standard: an attorney, for himself or on a client's behalf, should reasonably believe a breach of the Code occurred before initiating a disciplinary inquiry, and it noted that filing a grievance during related civil litigation can be perceived as vexatious. The opinion distinguished malpractice from unethical conduct, citing Terry Cove North, Inc. v. Marr & Friedlander for the proposition that a Code violation does not by itself form the basis of a malpractice action, and noting the converse, that bare malpractice does not by itself violate the Code. Finally, the opinion observed that if the client initiates a discussion about another attorney's ethical behavior, the aspirational standard in EC 7-8 calls for the lawyer to provide complete advice to enable the client's decision-making.

Currency note

This opinion was issued in 1990, under the former Alabama Code of Professional Responsibility (EC 1-4, DR 1-103(B), EC 7-8) and before the Alabama State Bar's January 1, 1991 adoption of the Rules of Professional Conduct and the 2002 Ethics 2000 revisions to the ABA Model Rules. A lawyer's duty to report another lawyer's misconduct is now in Rule 8.3, and the lawyer-as-advisor role in Rule 2.1. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Must a lawyer tell a client she could file a grievance against her former lawyer?

A: Per the opinion, no. The Commission concluded there is no ethical obligation to advise the client that there may be a basis for a grievance against the prior lawyer on these facts.

Q: Why did the Legal Service Liability Act matter?

A: The opinion relied on Ala. Code 6-5-578: because a Code violation does not create an independent cause of action or support recovery in a legal-services-liability action, the lawyer had no duty to disclose the prior lawyer's potential violations to the client.

Q: Does the lawyer still have to report the other lawyer's misconduct?

A: Yes, if the knowledge is unprivileged. The opinion stated that, under EC 1-4 and DR 1-103(B), a lawyer with unprivileged knowledge of another lawyer's misconduct must report it to the appropriate authorities, subject to a reasonableness standard.

Q: Is malpractice the same as an ethics violation?

A: No. The opinion distinguished the two, citing Terry Cove North v. Marr & Friedlander: a Code violation does not by itself form the basis of a malpractice action, and bare malpractice does not by itself violate the Code.

Background and rules framework

The opinion interprets the former Code's reporting duty (EC 1-4 and DR 1-103(B), now reflected in Rule 8.3, reporting professional misconduct) and the counselor's role under EC 7-8 (now Rule 2.1, advisor), against the backdrop of Alabama's Legal Service Liability Act (Ala. Code 6-5-578). The analysis separates the duty to advise a client about a possible grievance from the duty to report unprivileged misconduct, and it applies a reasonableness threshold before a grievance is initiated.

Citations and references

Rules of Professional Conduct:

• Model Rule 8.3 / former Ala. EC 1-4, DR 1-103(B) (reporting another lawyer's misconduct)
• Model Rule 2.1 / former Ala. EC 7-8 (lawyer as advisor; complete advice to the client)

Statutes:

• Ala. Code 6-5-578(a), (b) (Legal Service Liability Act; effect of rule violations on liability actions)

Cases:

• Terry Cove North, Inc. v. Marr & Friedlander, 521 So. 2d (Ala. 1988), a Code violation does not by itself form the basis of a malpractice action

See also

• No sibling opinions yet indexed.

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/1990-11/
• Original PDF: https://www.alabar.org/assets/2019/02/1990-11.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS OPINION

RO-90-11

QUESTION:

"A client approached me with a potential malpractice claim against a lawyer licensed and practicing in the State of Alabama. Specifically, it appears the lawyer did not properly respond to a Motion for Summary Judgment by filing a Motion in Opposition with Affidavits, but filed a Motion for Continuance and never filed anything further and the Motion for Summary Judgment was entered on behalf of Defendant against Plaintiff five months later; and, the lawyer never contacted the client to advise as to the status of the case and the client discovered the case had been dismissed when she telephoned the courthouse some months thereafter.

The question I have is whether I have any obligation to advise the client that she may or may not have a basis for filing a grievance against this lawyer."

ANSWER:

Ethical Consideration 1-4 says in pertinent part as follows:

"The integrity of the profession can be maintained only if conduct of lawyers in violation of the Disciplinary Rules is brought to the attention of the proper officials. A lawyer should reveal voluntarily to those officials all unprivileged knowledge of conduct of lawyers which he believes clearly to be in violation of the Disciplinary Rules."

Disciplinary Rule 1-103(B) says as follows:

"1-103 * * *

(B) A lawyer possessing unprivileged knowledge or evidence concerning another lawyer or a judge shall reveal fully such knowledge or evidence upon proper request of a tribunal or other authority empowered to investigate or act upon the conduct of lawyers or judges."

Ethical Consideration 7-8 says in pertinent part as follows:

"a lawyer should exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations. A lawyer ought to initiate this decision-making process if the client does not do so. Advice of a lawyer to his client need not be confined to purely legal considerations. A lawyer should advise his client of the possible effect of each legal alternative. A lawyer should bring to bear upon this decision-making process the fullness of his experience as well as his objective viewpoint."

Section 6-5-578(a) and (b), Code of Alabama, 1975, provides:

"6-5-578 * * *

(a) Evidence of action taken by a legal service provider in an effort to comply with any provision or any official opinion or interpretation of the rules of professional conduct shall be admissible as a defense to any legal services liability action.

(b) Neither evidence of a charge of a violation of the rules of professional conduct against a legal service provider nor evidence of any action taken in response to such a charge shall be admissible in a legal services liability action and the fact that a legal service provider violated any provision of the rules of professional conduct shall not give rise to an independent cause of action or otherwise be used in support of recovery in a legal service liability action. {Acts 1988, No. 88-262, p. 406, §9.)"

We are of the opinion that you do not have an ethical obligation to advise the client that, in your opinion, there may exist a basis for the filing of a grievance against a lawyer. The Legislature of the State of Alabama in adopting the Legal Service Liability Act has specifically stated that a violation, or an alleged violation, of the Code of Professional Responsibility does not give rise to an independent cause of action and may not otherwise be used in support of recovery in a legal services liability action. On these facts, when your representation involved a "potential malpractice claim against a lawyer licensed and practicing in the State of Alabama" we do not believe that you have an ethical obligation to disclose to the client potential violations of the Code of Professional Responsibility. However, should you have unprivileged information relating to the same matter, then you have, as shown above, an ethical obligation to inform appropriate authorities of the alleged misconduct.

DISCUSSION:

"Malpractice" and unethical conduct are not the same thing. The Supreme Court of the State of Alabama has held in the case of Terry Cove North, Inc. v. Marr and Friedlander, 521 So.2d (1988), that a violation of the Code of Professional Responsibility, in and of itself, does not form the basis of a malpractice action. Likewise, the Disciplinary Commission has held on many occasions that bare malpractice does not, in and of itself, constitute a violation of the Code of Professional Responsibility.

The Code of Professional Responsibility speaks to the issue of the impropriety of taking an action that is without basis in the law or taking action merely to harass or vex another party. Accordingly, while an attorney is under an affirmative ethical obligation to report unprivileged knowledge of alleged ethical misconduct a reasonableness standard must be applied such that an attorney, for himself or on behalf of a client, should reasonably believe that there has been a breach of the Code of Professional Responsibility before initiating a disciplinary inquiry. In particular when there is related civil litigation the filing of a grievance can be perceived as vexatious and manipulative. While it is entirely possible that both actions may be justified, an attorney should be satisfied to a reasonable standard before initiating the process.

Of course, should the client initiate a discussion regarding the ethical behavior of another attorney then, under the aspirational standards set forth in EC 7-8 an attorney should provide complete advice to the client to enable the client to initiate the decision-making process.

AWS/vi

2/13/90