Must a Connecticut lawyer report known opposing-lawyer trust-account misconduct when the information relates to the reporting lawyer's client representation?

Plain-English summary

During divorce litigation, a lawyer learned through deposition testimony and independently obtained evidence that the opposing spouse's firm deposited advance matrimonial retainers into its operating account. At least one retainer agreement did not authorize that treatment. A forensic review also identified other apparent trust-account irregularities.

Rule 1.15(d) requires advance legal fees and expenses to be deposited in a client trust account unless a written client agreement provides otherwise. Assuming the stated facts, the Committee concluded that the known conduct violated the Rules and raised a substantial question about the identified lawyer's honesty, trustworthiness, or fitness, satisfying Rule 8.3(a)'s threshold.

Rule 8.3(c), however, excludes information protected by Rule 1.6 from mandatory reporting. The relevant information related to the requesting lawyer's representation in the divorce, even though some came from independent evidence or an adverse party. Rule 1.6 protects all information relating to the representation, whatever its source.

The Committee concluded that Rule 1.6 controls over Rule 8.3. The lawyer therefore could not disclose the information to disciplinary authorities without the client's informed consent. Public availability or another possible source does not remove Rule 1.6 protection.

When seeking consent, Rule 1.0(f) requires adequate information about material risks and reasonably available alternatives. Because reporting was expected to affect the client's interests, the consent discussion had to include the potential adverse impact of disclosure.

In practice

Under this opinion, conduct may satisfy Rule 8.3(a)'s seriousness and knowledge requirements while reporting remains prohibited by client confidentiality. The client's informed-consent decision must account for the possible effect on the ongoing representation.

Common questions

Q: Did the described operating-account deposits meet the reporting threshold?

A: Yes on the assumed facts. The Committee found a known Rules violation raising a substantial fitness question.

Q: Why was reporting still prohibited?

A: The supporting information related to the lawyer's client representation and therefore was protected by Rule 1.6 and excluded by Rule 8.3(c).

Q: Does information from an adverse party or independent evidence remain protected?

A: Yes. The opinion says Rule 1.6 covers information relating to the representation whatever its source.

Q: Does public availability remove confidentiality protection?

A: No. The Committee agreed that Rule 1.6 protection is not forfeited merely because information is available elsewhere or publicly filed.

Q: What must the lawyer explain when requesting client consent?

A: The discussion must include the potential adverse impact that disclosure may have on the client.

Background and rules framework

Rule 8.3(a) requires reporting a known violation raising a substantial question about honesty, trustworthiness, or fitness. Rule 8.3(c) subordinates that duty to Rule 1.6 confidentiality. Rule 1.0(f) governs the informed consent needed for disclosure.

Citations and references

Connecticut Rules of Professional Conduct:

• Rules 1.0(f), 1.6(a), 1.15(d), 8.3(a), and 8.3(c)

Other authorities:

• Connecticut Practice Book § 2-27(a), (b), and (f), client-funds accounts and records

Other opinions cited:

• Connecticut Informal Opinions 90-01, 90-31, 94-01, 94-30, 97-16, and 05-12
• ABA Formal Opinion 04-433, misconduct reporting and Rule 1.6

See also

• CT Informal Op. 13-05: Reporting suspected misconduct
• VSB LEO 1545: Reporting opposing counsel
• New Mexico Ethics Op. 1988-8: Knowledge standard for reporting

Source

• Landing page: Connecticut Bar Association Informal Ethics Opinions
• Original PDF: Informal Opinion 11-06