If a lawyer is suing another lawyer for malpractice, must she also report that lawyer to bar disciplinary authorities?
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This page answers the general question as of 1994. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion 246 (adopted April 19, 1994, and revised October 18, 1994 after Bar Counsel raised questions) addressed a lawyer suing another D.C. lawyer for malpractice on a client's behalf. The underlying claim was that the other lawyer missed a two-year limitations period and represented members of the client's family with conflicting interests in the same matter. The inquirer asked whether she was obligated under Rule 8.3 to report that conduct to disciplinary authorities, noting concern that disciplinary prosecution might reduce the other lawyer's ability to pay a malpractice judgment.
The committee adopted the four-step framework from New York State Bar Opinion 635. A lawyer must report only if: (1) she has actual knowledge of the pertinent facts, not mere suspicion; (2) the information is not a client confidence or secret, because Rule 8.3(c) exempts information protected by Rule 1.6 from the reporting duty; (3) the conduct clearly violates a disciplinary rule; and (4) the violation raises a substantial question about the other lawyer's honesty, trustworthiness, or fitness, so that only the most serious violations must be reported. The committee stressed that filing a malpractice suit does not itself satisfy or excuse the reporting analysis.
On confidentiality, the committee concluded that information about the other lawyer's missed deadline and conflict came to the inquirer "in the course of the professional relationship" and so could be a Rule 1.6 secret, which does not lose protection merely because others share the knowledge or because it was placed in public court filings at the client's direction. If reporting would require disclosing such information and could lessen the client's recovery, Rule 1.6 bars reporting without the client's consent; Rule 1.3(b)(2) may also preclude reporting that would prejudice or damage the client. The committee added that a lawyer should encourage the client to consent, after disclosing the possible effect on recovery, and that on these facts it could not conclude that any of the four elements was met, so it could not say the inquirer was obligated to report.
Currency note
This opinion was issued in 1994, before the District of Columbia's adoption of the 2007 revisions to the Rules of Professional Conduct. 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: When is a lawyer required to report another lawyer's misconduct?
A: Only when four conditions are met. The committee concluded reporting under Rule 8.3(a) is required only with actual knowledge of the facts, no Rule 1.6 bar to disclosure, a clear disciplinary violation, and a violation serious enough to raise a substantial question about the lawyer's fitness.
Q: Does filing a malpractice suit against the lawyer trigger the duty to report?
A: Not by itself. The committee concluded the duty to report is independent; filing suit neither satisfies it nor relieves the lawyer of her Rule 1.6 duty to keep client confidences.
Q: Can a lawyer report when the information is a client confidence or secret?
A: Not without consent. The committee concluded that Rule 8.3(c) exempts Rule 1.6-protected information, so the lawyer may not report it without the client's consent, even if the facts already appear in public court filings.
Q: Was the inquirer required to report the missed deadline and conflict?
A: The committee could not say she was. On the facts, it concluded it could not determine that all (or any) of the four required elements were present, so the decision was left to the inquirer's own judgment.
Background and rules framework
The opinion interpreted D.C. Rule 8.3(a) (the duty to report another lawyer's misconduct that raises a substantial question as to honesty, trustworthiness, or fitness) and its Rule 8.3(c) exemption for information protected by Rule 1.6 (confidences and secrets). It also applied Rule 1.3(b)(2), which bars intentionally prejudicing or damaging a client. The committee noted that the District's Rule 1.6 protects a broad category of "secrets" beyond the evidentiary privilege, and concluded the same result would appear to obtain under the ABA Model Rules despite their different wording.
Citations and references
Rules of Professional Conduct:
- D.C. RPC 8.3 / Model Rule 8.3 (reporting professional misconduct)
- D.C. RPC 1.6 / Model Rule 1.6 (confidentiality of information; confidences and secrets)
- D.C. RPC 1.3(b)(2) / Model Rule 1.3 (diligence; not prejudicing the client)
Cases:
- In re Himmel, 533 N.E.2d 70 (Ill. 1989), failure to report another lawyer's embezzlement was grounds for suspension
- Doe v. Federal Grievance Committee, 847 F.2d 57 (2d Cir. 1988), a lawyer must clearly know, not merely suspect, before reporting
Other opinions cited:
- New York State Bar Op. 635 (1992): four-step framework for mandatory reporting, adopted by the committee
- D.C. Bar Opinion 220 (1991): threats to file disciplinary charges solely to gain advantage in a civil matter violate Rule 8.4(g)
See also
- DC Ethics Op. 270: Reporting a Supervising Lawyer
- DC Ethics Op. 260: Malpractice Liability Releases
- ABA Formal Op. 04-433: Reporting a Non-Practicing Lawyer
Source
- Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-246
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