When must a Colorado lawyer report another lawyer's ethics violation, and to whom must the report be made?

Plain-English summary

Opinion 64 (adopted April 23, 1983; amended June 15, 1996) addressed two questions about the duty to report another lawyer's misconduct: what knowledge triggers the duty, and to whom the report must be made. It addressed violations of the Rules of Professional Conduct, not other statutory or criminal conduct. Under Colo. RPC 8.3(a), a lawyer who has knowledge that another lawyer committed a violation raising a substantial question as to that lawyer's honesty, trustworthiness, or fitness must inform the appropriate professional authority.

On the knowledge trigger, the Committee adopted the Rules' definition of "knows" as actual knowledge, which may be inferred from circumstances. A lawyer who directly observes conduct the lawyer believes clearly violates the Rules has knowledge and may be duty-bound to report, regardless of personal ramifications. But a lawyer merely informed of an alleged violation by a third party (a client, another lawyer, or otherwise), with no other information, does not have knowledge triggering the duty and has no duty to investigate; that lawyer may instead recommend the informing party file a request for investigation, or file one. The Committee emphasized that Rule 8.3(a) narrowed the broader former standard of DR 1-103(A) by limiting the duty to violations raising a "substantial," meaning clear and weighty, question of honesty, trustworthiness, or fitness, and that Rule 8.3(c) does not require disclosing information protected by Rule 1.6 or learned through an approved lawyers' assistance program.

On timing and recipient, the Committee noted the Rules set no express deadline; the lawyer should balance potential prejudice to the client against the duty to report and report as soon as practical, while being aware of Rule 4.5 (a lawyer may not present disciplinary charges solely to gain advantage in a civil matter). Because filing a request for investigation during pending litigation can inject a collateral issue, it is usually appropriate to wait until the proceeding concludes unless the conduct calls for immediate attention. The report is made to the appropriate professional authority, namely the Supreme Court Disciplinary Counsel, which has original jurisdiction over attorney disciplinary proceedings.

Currency note

This opinion was issued in 1983 and amended in 1996, before Colorado's 2008 revisions to the Rules of Professional Conduct. It interprets Rule 8.3 as it stood in 1996, and references Rule 4.5, which Colorado has since repealed or relocated. 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: Did a Colorado lawyer have to report every suspected ethics violation by another lawyer?

A: No. The opinion concluded the duty arises only on actual knowledge of a violation raising a substantial question as to the other lawyer's honesty, trustworthiness, or fitness; lesser violations or mere suspicions did not trigger a mandatory report.

Q: What if someone just told the lawyer about an alleged violation?

A: That alone did not trigger the duty. The opinion concluded that a lawyer informed of an alleged violation by a third party, with no other information, lacks the knowledge that triggers the reporting duty and has no duty to investigate; the lawyer may recommend the informer file a request for investigation or file one.

Q: Could confidential client information be withheld from a report?

A: Yes. The opinion concluded that under Rule 8.3(c) a lawyer need not disclose information protected by Rule 1.6, or information gained while serving in an approved lawyers' assistance program.

Q: When and where should the report be made?

A: The opinion concluded there is no express deadline; the lawyer should report as soon as practical, balancing prejudice to the client, and often should wait until pending litigation concludes. The report goes to the Supreme Court Disciplinary Counsel.

Background and rules framework

The opinion interprets Colo. RPC 8.3 (reporting professional misconduct), drawing on the Rules' terminology for "knows" and "substantial," together with Rule 8.3(c)'s protection for information covered by Rule 1.6 and lawyers'-assistance-program information, and Rule 4.5 (the former rule barring use of disciplinary charges to gain civil advantage). The corresponding Model Rules are 8.3 (reporting misconduct) and 1.6 (confidentiality). Reports are made under C.R.C.P. 241 to the Supreme Court Disciplinary Counsel.

Citations and references

Rules of Professional Conduct:

• Colo. RPC 8.3(a), 8.3(c) / Model Rule 8.3 (reporting professional misconduct)
• Colo. RPC 1.6 / Model Rule 1.6 (confidentiality of information)
• Colo. RPC 4.5 (former rule: no disciplinary charges solely to gain civil advantage)

Cases:

• In re Gopman, 531 F.2d 262 (5th Cir. 1976), duty to report observed misconduct (decided under the Code)
• In re Ethics Advisory Panel Op. 92-1, 627 A.2d 317 (R.I. 1993), confidentiality limits on the reporting duty

Other opinions cited:

• Illinois State Bar Ass'n Op. 90-28: hearsay alone is not sufficient to trigger the duty

See also

• ABA Formal Op. 03-431: Reporting an Impaired Lawyer Outside the Firm
• AlaBar Op. 1992-09: Duty to Report a Judge's Conduct
• CA Bar Op. 2012-185: Settlement Conditioned on Suppressing a Bar Complaint

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/repository/ethicsOpinions/FormalEthicsOpinion_64_2011.pdf