When must a Louisiana lawyer report another lawyer's professional misconduct?

Plain-English summary

The opinion applies Louisiana Rule 8.3(a) through the Louisiana Supreme Court's decision in In re Riehlmann. Reporting requires knowledge rather than suspicion, but absolute certainty is unnecessary. Knowledge exists when the supporting evidence would cause a reasonable lawyer in the circumstances to form a firm belief that the conduct more likely than not occurred.

The standard is objective. The reporting lawyer does not conduct a definitive disciplinary investigation; the disciplinary system determines whether a violation occurred. A report based only on suspicion does not satisfy the knowledge requirement.

Once the lawyer concludes that reportable misconduct likely occurred, the report is made promptly. The opinion links promptness to protecting the public and profession from future misconduct. The specified recipient is the Louisiana Office of Disciplinary Counsel.

The covered violation must raise a question about honesty, trustworthiness, or fitness as a lawyer. Unlike ABA Model Rule 8.3(a), the Louisiana text discussed by the opinion omits "substantial," so the opinion treats Louisiana's reporting obligation as potentially reaching minor or technical violations when they bear on one of those qualities.

In practice

Under this 2006 opinion, the reporting analysis asks four questions: whether the lawyer has objective knowledge rather than suspicion, whether the conduct concerns honesty, trustworthiness, or fitness, whether the report is prompt, and whether it is made to the Office of Disciplinary Counsel.

Common questions

Q: Must a lawyer be certain that misconduct occurred before reporting?

A: No. The opinion uses the Riehlmann standard: evidence sufficient for a reasonable lawyer to firmly believe the conduct more likely than not occurred.

Q: Is mere suspicion enough?

A: No. The opinion repeatedly distinguishes reportable knowledge from suspicion.

Q: Must the reporting lawyer investigate and decide whether a violation occurred?

A: No. The opinion states that the disciplinary system and court make that determination.

Q: When must the report be made?

A: Promptly after the lawyer concludes that a reportable offense likely occurred.

Q: Where is the report made?

A: The opinion identifies the Louisiana Office of Disciplinary Counsel as the required recipient.

Q: Does Louisiana require a "substantial" question about fitness?

A: The rule text discussed in the opinion does not contain that word. The opinion therefore describes Louisiana's duty as broader than the ABA Model Rule when misconduct bears on honesty, trustworthiness, or fitness.

Background and rules framework

The opinion interprets Louisiana Rule 8.3(a) after its 2004 revision and relies on In re Riehlmann for the knowledge, promptness, and reporting-recipient standards. It compares the Louisiana text with ABA Model Rule 8.3(a).

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 8.3(a)
• Louisiana Rule 8.3(a)

Cases:

• In re Michael G. Riehlmann, 04-0680, 891 So. 2d 1239 (La. 1/19/2005), knowledge and prompt reporting standards

See also

• OSB Ethics Op. 2005-95: Duty to Report Misconduct
• New Mexico Ethics Op. 1988-8: Knowledge Standard for Reporting Misconduct
• Virginia LEO 1004: Crime and the Duty to Report

Source

• Landing page: LSBA Ethics Advisory Service and Opinions
• Original PDF: Public Opinion 06-RPCC-010

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Louisiana State Bar Association
Rules of Professional Conduct Committee

PUBLIC Opinion 06-RPCC-0101
June 1, 2006

Lawyer’s Duty to Report Professional Misconduct of Another Lawyer

A lawyer is obligated to report promptly to the Office of Disciplinary Counsel knowledge of misconduct by another lawyer where the conduct raises a question as to that other lawyer’s honesty, trustworthiness or fitness as a lawyer and where the supporting evidence is such that a reasonable lawyer under the circumstances would form a firm belief that the conduct in question had more likely than not occurred.

In Re: Michael G. Riehlmann2, the Supreme Court of Louisiana was presented with an opportunity to outline a lawyer’s duty to report professional misconduct of a fellow lawyer. The version of Rule 8.3(a) of the Louisiana Rules of Professional Conduct which was in effect in 2001 at the time formal charges were filed in Riehlmann provided as follows:

A lawyer possessing unprivileged knowledge of a violation of this Code shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.

1
The comments and opinions of the Committee—public or private—are not binding on any person or tribunal, including—but not limited to—the Office of Disciplinary Counsel and the Louisiana Attorney Disciplinary Board. Public opinions are those which the Committee has published—specifically designated thereon as “PUBLIC”—and may be cited. Private opinions are those that have not been published by the Committee— specifically designated thereon as “NOT FOR PUBLICATION”—and are intended to be advice for the originally- inquiring lawyer only and are not intended to be made available for public use or for citation. Neither the LSBA, the members of the Committee or its Ethics Counsel assume any legal liability or responsibility for the advice and opinions expressed in this process.
2
In Re: Michael G. Riehlmann, 04-0680 (La. 1/19/05), 891 So. 2d 1239.

– Page (1) –
PUBLIC Opinion 06-RPCC-010
© 2006 by the Louisiana State Bar Association. All rights reserved.
The Riehlmann Court clarified the requirements of the Rule and ultimately held that Rule 8.3(a) required knowledge, rather than a mere suspicion of ethical misconduct; that the knowledge must be reported promptly; and that the report must be made to the Office of Disciplinary Counsel. These same requirements are stated in the current version of Rule 8.3(a). As noted by the Riehlmann Court, changes to Rule 8.3(a) were made effective March 1, 2004. The Rule currently provides:

A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the Office of Disciplinary Counsel.

Although the revision changed the wording of the Rule, it does not appear to have altered the conclusions set forth in the Riehlmann decision. The following is a discussion of each of the requirements of Rule 8.3(a).

A. Knowledge
An absolute certainty of ethical misconduct is not necessary to trigger the reporting requirement; yet, a lawyer must base his report on more than a mere suspicion of improper behavior.3 The Riehlmann Court held that “…a lawyer will be found to have knowledge of reportable misconduct, and thus reporting is required, where the supporting evidence is such that a reasonable lawyer under the circumstances would form a firm belief that the conduct in question had more likely than not occurred...”4 The standard of determining “knowledge” is measured objectively and not according to the subjective beliefs of the lawyer reporting the misconduct.5

3
Id., Riehlmann at p. 1247.

4
Id., Riehlmann at p. 1247.

5
Id., Riehlmann at p. 1247.

– Page (2) –
PUBLIC Opinion 06-RPCC-010
© 2006 by the Louisiana State Bar Association. All rights reserved.
In some cases, a lawyer will not have clear and convincing evidence of a colleague’s wrongdoing. The Rule relaxes the standard of certainty to one in which a reasonable lawyer could infer that improper behavior more than likely occurred.6 It is important to keep in mind, however, that a report of misconduct should not be based on a mere suspicion. A lawyer should have a legitimate degree of knowledge of another’s misconduct in order to file a report with the Office of Disciplinary Counsel.

B. When Should a Lawyer Report the Misconduct?
Louisiana Rule 8.3(a) does not state a specific time period within which a report of misconduct must be made. But, as noted by the Court in Riehlmann, reporting should be made promptly7 because the public and the profession must be protected against future misconduct by the offending lawyer.8 “...This purpose is not served unless Rule 8.3(a) is read to require timely reporting under the circumstances presented...”9

C. Report to Whom?
In Riehlmann, the applicable version of Rule 8.3(a) failed to define the term “tribunal or other authority” to which the report of misconduct should be made.
The Court looked to the comments to ABA Model Rule 8.3(a) for assistance and held that reports of misconduct should

6
Id., Riehlmann, at p. 1247: “…The lawyer is not required to conduct an investigation and make a definitive decision that a violation has occurred before reporting; that responsibility belongs to the disciplinary system and this court…” 7
Id., Riehlmann, at p. 1247: “…Once the lawyer decides that a reportable offense has likely occurred, reporting should be made promptly…”
8
Id., Riehlmann, at p. 1247.
9
Id., Riehlmann, at p. 1247.

– Page (3) –
PUBLIC Opinion 06-RPCC-010
© 2006 by the Louisiana State Bar Association. All rights reserved. generally be made to the bar disciplinary authority.10 The current Rule eliminates all confusion as to whom the misconduct should be reported by clearly stating that such violations shall be made known to the Office of Disciplinary Counsel.

D. What to Report?
What type of conduct must be reported is subject to some interpretation. The ABA Model Rule provides:
A lawyer who knows 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, shall inform the appropriate professional authority. [emphasis added]

It is noteworthy that the current Louisiana version of Rule 8.3(a) left out the word “substantial”

that is utilized in the ABA Model Rule. The Riehlmann Court, discussing the differences

between Louisiana’s Rule 8.3(a) and the ABA Model Rule, noted that Louisiana’s previous

version of Rule 8.3(a)

…imposed a substantially more expansive reporting requirement [than the ABA Model Rule], in that our Rule required a lawyer to report all unprivileged knowledge of any ethical violation by a lawyer, whether the violation was, in the reporting lawyer’s view, flagrant and substantial or minor and technical…11

The 2004 version provides that a lawyer is now only required to report misconduct that raises a question as to a lawyer’s honesty, trustworthiness or fitness to practice law, and therefore seemingly lightens the burden on a lawyer to report misconduct to those particular instances.

10
Id., Riehlmann, at p.1247: “…Therefore, a report of misconduct by a lawyer admitted to practice in Louisiana must be made to the Office of Disciplinary Counsel…” 11
Id., Riehlmann, at p.1246.

– Page (4) –
PUBLIC Opinion 06-RPCC-010
© 2006 by the Louisiana State Bar Association. All rights reserved.
Yet, under the rationale of Riehlmann and because the revision specifically left out the word “substantial” with regard to the question of misconduct, a lawyer is still required to report any ethical violation that raises a question as to a lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, whether “…flagrant and substantial or minor and technical…”. Although the revised Rule appears to narrow the scope only of reporting ethical violations to those involving certain qualities, it does not necessarily prevent reports of minor and technical violations. Louisiana’s Rule 8.3(a) requires misconduct to be reported if it raises a question—as opposed to the ABA Model Rule, which requires the conduct to raise a substantial question—as to the lawyer’s fitness to practice law. This distinction leads to greater potential for reporting of misconduct under the Louisiana Rule when compared to the ABA Model Rule because all acts of unethical behavior pertaining to the designated qualities must be reported, not just those unethical acts deemed “substantial”. By excluding the word “substantial,” the Louisiana Rule continues to “impose a more expansive reporting requirement” than the ABA Model Rule, in that all misconduct pertaining to a lawyer’s “honesty, trustworthiness or fitness as a lawyer” must be reported, rather than only those acts having a “substantial” impact on the legal profession.12

Conclusion
The rationale for Rule 8.3(a) is self-evident. Self-regulation of the legal profession assists in ensuring the integrity of the profession. At many times, a lawyer is in the best position to discover unethical behavior and is obligated to report this knowledge, despite the reluctance for policing one another. Until the Court further clarifies the substantiality issue, practitioners should note that a failure to report knowledge of unethical conduct that bears on honesty, trustworthiness or fitness by a fellow lawyer may be a violation of the Rules of Professional

12
Id., Riehlmann, at p.1246.

– Page (5) –
PUBLIC Opinion 06-RPCC-010
© 2006 by the Louisiana State Bar Association. All rights reserved.
Conduct.

– Page (6) –
PUBLIC Opinion 06-RPCC-010
© 2006 by the Louisiana State Bar Association. All rights reserved.