Can a lawyer report another lawyer's misconduct that the lawyer learned through a client's confidential information?

Plain-English summary

The opinion addressed a lawyer who arranged a settlement for a debtor-client against the client's former counsel. The former counsel had handled a loan transaction, was supposed to pay off a mortgage with the loan proceeds, but failed to do so timely and completely, causing the debtor to receive foreclosure notices and suffer denial of credit. The settlement and release the client signed extinguished all "causes of action, grievances and rights" between the parties. During the representation, the inquiring lawyer came to believe the former counsel had acted in contravention of MRPC 8.4(b), engaging in conduct involving dishonesty, fraud, deceit, misrepresentation, or violation of criminal law reflecting on fitness, and asked whether reporting the lawyer was prohibited without the client's consent.

The Committee set out MRPC 8.3(a), which requires reporting a significant violation raising a substantial question about honesty, trustworthiness, or fitness, and MRPC 8.3(c), which does not require disclosure of information protected by MRPC 1.6. It explained that the effect of MRPC 8.3(c) is that a lawyer is not exposed to discipline for failing to report MRPC 8.3(a) conduct when the reason for not disclosing is that the information is MRPC 1.6-protected.

The Committee declined to resolve, on the facts given, whether the inquirer's information about the other lawyer's misconduct was a confidence or secret, leaving that determination to the inquirer. It concluded that if the information is protected by MRPC 1.6, disclosure to the Attorney Grievance Commission is not required and is in fact prohibited without the client's consent.

Currency note

This opinion was issued in 1995 and interprets the Michigan Rules of Professional Conduct as they then stood, including the version of MRPC 1.6 protecting client "confidences" and "secrets." The MRPC have since been amended, and 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 Treat this page as historical context, not current guidance.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: I learned about another lawyer's misconduct while representing a client. Can I report it?

A: Per the opinion, it depends on whether the information is a confidence or secret under MRPC 1.6. If it is protected, reporting is prohibited without the client's consent.

Q: Does MRPC 8.3 require me to report misconduct I learned confidentially?

A: No. The opinion concluded MRPC 8.3(c) does not require disclosure of MRPC 1.6-protected information, and a lawyer is not disciplined for declining to report on that basis.

Q: Who decides whether the information is protected?

A: The opinion left that determination to the inquiring lawyer, stating the Committee did not have sufficient facts about the origin of the information to decide.

Background and rules framework

The opinion interprets MRPC 8.3(a) and (c) / Model Rule 8.3 (reporting misconduct and its confidentiality exception), MRPC 1.6 / Model Rule 1.6 (confidences and secrets), specifically the consent provision at MRPC 1.6(c)(2), and references MRPC 8.4(b) / Model Rule 8.4 (dishonesty and criminal conduct) as the alleged underlying violation.

Citations and references

Rules of Professional Conduct:

• MRPC 8.3(a), (c) / Model Rule 8.3 (reporting misconduct; confidentiality exception)
• MRPC 1.6(c)(2) / Model Rule 1.6 (confidences and secrets; consent)
• MRPC 8.4(b) / Model Rule 8.4 (dishonesty, fraud, criminal conduct)

See also

• Mich Ethics Op. RI-220: Settlement Offer to Withhold a Grievance
• Mich Ethics Op. RI-88: No-Grievance Settlement Conditions
• Mich Ethics Op. RI-145: Duty to Report Direct Contact With a Represented Party

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1102&Type=6

Original opinion text

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

RI-232

April 7, 1995

SYLLABUS

A lawyer may not report another lawyer's ethical misconduct to the Attorney Grievance Commission if the information is confidential or secret without the client's consent.

References: MRPC 1.6(c)(2), 8.3(a) and (c), 8.4(b).

TEXT

A lawyer handled a loan transaction under which the proceeds were to be used to pay off a mortgage. The lawyer was to pay off the mortgage with the loan proceeds and made several payments, but failed to do so timely and completely. The debtor received foreclosure notices and suffered denial of credit.

The debtor sought legal assistance from the inquirer, who arranged a settlement with the lawyer on the dispute. A portion of the Release and Settlement agreement which the client signed states that the agreements "shall be considered full and complete extinguishment of all causes of action, grievances and rights of the parties as same relate to each of the aforementioned causes, whatsoever." Emphasis added.

During the course of the representation, the inquirer obtained knowledge that the client's former counsel acted in contravention of MRPC 8.4(b), i.e., "engaged in conduct involving dishonesty, fraud, deceit, misrepresentation, or violation of the criminal law, where such conduct reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer." The inquirer asks whether reporting the lawyer to the Attorney Grievance Commission is prohibited without the client's consent.

MRPC 8.3(a) and (c) state:

"(a) A lawyer having knowledge that another lawyer has committed a significant violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer shall inform the Attorney Grievance Commission.

". . .

"(c) This rule does not require disclosure of:

"(1) information otherwise protected by Rule 1.6; or

"(2) information gained by a lawyer while serving as an employee or volunteer of the substance abuse counseling program of the State Bar of Michigan, to the extent the information would be protected under Rule 1.6 from disclosure if it were a communication between lawyer and client."

MRPC 1.6 generally protects confidences and secrets from disclosure unless the client consents. The import of MRPC 8.3(c) is that a lawyer is not exposed to disciplinary charges for failing to report conduct of another which falls within MRPC 8.3(a), if the lawyer's reason for failing to disclose is that the information is protected by MRPC 1.6.

We do not have sufficient facts about the origin of the inquirer's information to determine whether the information concerning the other lawyer's misconduct is confidential or secret, and therefore leave that determination to the inquirer. If the information is protected by MRPC 1.6, disclosure to the Attorney Grievance Commission is not required, and in fact is prohibited without the client's consent.