Must a Missouri lawyer report opposing counsel's gender- and national-origin-related derogatory remark?

Plain-English summary

During dissolution negotiations with both clients present, one lawyer made a derogatory remark to opposing counsel related to gender and national origin. The opinion analyzes whether Rule 4-8.3 requires opposing counsel to report it.

Rule 4-8.3 requires a report when the lawyer knows of a Rules violation that raises a substantial question about the other lawyer's honesty, trustworthiness, or fitness. Rule 4-1.0(f) defines knowledge as actual knowledge, which may be inferred from circumstances.

Rule 4-8.4(g) makes it misconduct for a lawyer representing a client to manifest bias or prejudice or engage in harassment, including conduct based on sex, gender, or national origin. Comment [4] makes the inquiry circumstantial, including the gravity of the act and whether it forms part of a prohibited pattern. It defines bias or prejudice as words or conduct the lawyer knew or should have known discriminate against, threaten, intimidate, or denigrate a person or group.

If opposing counsel concludes from the facts and circumstances that the remark violates Rule 4-8.4(g) and the Rule 4-8.3 threshold is met, a report to the Office of Chief Disciplinary Counsel is required. Under Rule 4-8.3(c), however, the client's informed consent is required if the report would disclose information protected by Rule 4-1.6.

In practice

Under this opinion, the reporting question depends on actual knowledge, the contextual Rule 4-8.4(g) inquiry, and whether the violation raises the substantial fitness question required by Rule 4-8.3. Confidential client information cannot be included without the client's informed consent.

Common questions

Q: Does every derogatory remark automatically require a report?

A: The opinion does not say that. Comment [4] requires review of all circumstances, including gravity and whether the act is part of a pattern, and Rule 4-8.3 imposes separate knowledge and substantial-question requirements.

Q: What does knowledge mean for the reporting rule?

A: Rule 4-1.0(f) defines it as actual knowledge of the fact, which may be inferred from circumstances.

Q: What conduct does Rule 4-8.4(g) cover?

A: It covers bias, prejudice, or harassment manifested by words or conduct while representing a client, including conduct based on sex, gender, or national origin.

Q: Where is a required report made?

A: The opinion identifies the Office of Chief Disciplinary Counsel.

Q: What if reporting would reveal client information?

A: Rule 4-8.3(c) requires the client's informed consent before disclosing information protected by Rule 4-1.6.

Background and rules framework

Rule 4-8.3 supplies the knowledge and substantial-question reporting standard. Rule 4-8.4(g) and Comment [4] govern whether biased, prejudicial, or harassing conduct constitutes misconduct. Rules 4-8.3(c) and 4-1.6 preserve client confidentiality.

Citations and references

Rules of Professional Conduct:

• Missouri Rules 4-1.0(f), 4-1.6, 4-8.3(a), 4-8.3(c), and 4-8.4(g)
• Missouri Rule 4-8.4 Comment [4]

See also

• Louisiana Op. 06-RPCC-010: Reporting Lawyer Misconduct
• Connecticut Informal Op. 11-06: Reporting and Confidentiality
• New Mexico Ethics Op. 1988-8: Knowledge Standard for Reporting

Source

• Landing page: Missouri Informal Opinion 2021-08

Original opinion text

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

Question: Attorney A represents Wife in a dissolution of marriage case, and Attorney B represents Husband. Attorney A and Attorney B were negotiating on behalf of their respective clients, with their clients present, when Attorney A made a derogatory remark to Attorney B that was related to Attorney B’s gender and national origin. Is Attorney B required to report Attorney A’s conduct?

Answer: Rule 4–8.3 requires Attorney B to report Attorney A to the Office of Chief Disciplinary Counsel if Attorney B knows that Attorney A’s conduct is a violation of the Rules of Professional Conduct that raises a substantial question as to Attorney A’s honesty, trustworthiness, or fitness as a lawyer in other respects. “Knows” is defined in Rule 4–1.0(f) as actual knowledge of the fact in question, or it may be inferred from the circumstances. In determining if Attorney A’s conduct rises to the level of misconduct that is reportable, Attorney B may consider Rule 4–8.4, Misconduct. Rule 4–8.4(g) provides that it is professional misconduct for a lawyer to “manifest by words or conduct, in representing a client, bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, gender identity, religion, national origin, ethnicity, disability, age, sexual orientation, or marital status.” Comment [4] to Rule 4–8.4 states: “Whether a lawyer’s conduct constitutes professional misconduct in violation of Rule 4–8.4(g) can be determined only by a review of all the circumstances; e.g., the gravity of the acts and whether the acts are part of a pattern of prohibited conduct. For purposes of Rule 4–8.4(g), “bias or prejudice” means words or conduct that the lawyer knew or should have known discriminate against, threaten, intimidate, or denigrate any individual or group. Examples of manifestations of bias or prejudice include, but are not limited to, epithets; slurs; demeaning nicknames; negative stereotyping; threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or nationality and crime; and irrelevant references to personal characteristics.” If Attorney B believes, based on the facts and circumstances, that Attorney A’s conduct is a violation of Rule 4–8.4(g), Rule 4–8.3(a) would require it to be reported to the Office of Chief Disciplinary Counsel. However, Rule 4–8.3(c) requires informed consent of Attorney B’s client if the report would require disclosure of information otherwise protected by Rule 4–1.6.