Ezel / Ethics Opinions / MBAR
MBAR January 26, 2017

Must a lawyer report another lawyer's misconduct to bar counsel when the lawyer learned of it from a document that may be client confidential information?

Short answer: Rule 8.3 requires a report when the lawyer has a firm belief the violation more likely than not occurred. But if the supporting document is the client's confidential information under Rule 1.6, the reporting duty is excused unless the client consents.

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This page answers the general question as of 2017. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2017
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

A lawyer representing Attorney A in a firm breakup discovered, while allocating case files, a misfiled document suggesting that the opposing former partner, Attorney B, had intentionally omitted an applicant's fraud conviction from a bar-admission recommendation letter. The lawyer notified opposing counsel, got no response, and asked whether he must report the discovery to Bar Counsel.

The opinion works through three questions. First, whether the lawyer "knows" of a violation: applying Comment 3 to Rule 8.3, the committee explains that knowledge exists when the lawyer possesses evidence such that a reasonable lawyer would form a firm opinion the conduct more likely than not occurred, and infers the lawyer may believe that standard is met, especially given the unanswered notice to opposing counsel. Second, whether the violation raises a substantial question as to honesty or fitness: the committee concludes that intentionally concealing a fraud conviction in a recommendation letter falls within the fraud and deceit terms of Comment 3 and implicates Rule 8.1 (bar-admission candor), citing In re Slavitt.

Third, and decisively, the opinion addresses Rule 8.3(c), which does not require disclosure of information protected by Rule 1.6. The committee notes that the discovered document may be the client's confidential information as newly defined in Comment 3A to Rule 1.6; if so, the reporting requirement is excused unless the client consents, though a lawyer should encourage a client to consent where a report would not substantially prejudice the client. The opinion adds that the lawyer must also advise his client, himself a lawyer, about the client's own Rule 8.3(a) reporting obligation.

In practice

The opinion holds that, under the Massachusetts rules as they stood in 2017, the Rule 8.3 duty to report applies only when the lawyer has knowledge meeting the "more likely than not" firm-belief standard and the violation raises a substantial question as to the other lawyer's honesty or fitness. Per the opinion, concealing a fraud conviction in a bar-admission recommendation meets the substantiality test.

The opinion makes Rule 8.3(c) the pivot: where the supporting evidence is the client's confidential information under Rule 1.6, the report is excused unless the client consents. It also directs the lawyer to advise his lawyer-client about that client's independent Rule 8.3(a) reporting obligation.

Common questions

Q: When does a lawyer "know" of a violation for Rule 8.3 purposes?

A: Per Comment 3 to Rule 8.3, the opinion explains the lawyer has knowledge when the evidence would make a reasonable lawyer form a firm opinion that the conduct more likely than not occurred.

Q: Does confidentiality override the duty to report?

A: The opinion concludes that if the supporting document is the client's confidential information under Rule 1.6, Rule 8.3(c) excuses the report unless the client consents, and the lawyer should encourage consent where reporting would not substantially prejudice the client.

Q: Does the lawyer have any duty toward his own client here?

A: Yes. The opinion states the lawyer must advise his client, who is himself a lawyer, about the client's own reporting obligation under Rule 8.3(a).

Background and rules framework

The opinion interprets Massachusetts Rule of Professional Conduct 8.3 (reporting professional misconduct), including its Comments 1, 2, 3, and 3A, together with Rule 1.6 (confidentiality and the Comment 3A definition of confidential information), Rule 8.1 (bar-admission and disciplinary-matter candor), and Rule 8.4(c) (dishonesty, fraud, deceit, or misrepresentation). It references S.J.C. Rule 4:01, section 12(3) for the definition of a "serious crime." These correspond to the like-numbered ABA Model Rules.

Citations and references

Rules of Professional Conduct:

  • MR 8.3 / Mass. R. Prof. C. 8.3 (reporting misconduct; Comments 3 and 3A)
  • MR 1.6 / Mass. R. Prof. C. 1.6 (confidentiality; Rule 8.3(c) exception)
  • MR 8.1 / Mass. R. Prof. C. 8.1 (bar-admission candor)
  • MR 8.4 / Mass. R. Prof. C. 8.4(c) (dishonesty, fraud, deceit)

Cases:

  • In re Slavitt, 449 Mass. 25 (2007), candor in bar-admission matters

See also

Source

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