Must a Missouri lawyer report a client's account that a judge made off-record statements showing partiality?

Plain-English summary

A client told the lawyer that, before a hearing and outside the lawyer's presence, the judge made off-record statements indicating a lack of impartiality in the client's matter. The opinion addresses whether the lawyer must report the judge to the Commission on Retirement, Removal, and Discipline.

Rule 4-8.3(b) requires a report to that authority if the lawyer knows the judge made the statements and the statements would violate the applicable Code of Judicial Conduct under Rule 2. Rule 4-1.0(f) defines knowledge as actual knowledge of the fact, which may be inferred from circumstances.

If the lawyer does not have knowledge, Rule 4-8.3(b) does not require a report. If the lawyer believes the knowledge and violation requirements are met, Rule 4-8.3(c) still requires the client's informed consent before the report discloses information relating to the representation protected by Rule 4-1.6(a).

In practice

Under this opinion, a client's allegation does not by itself establish the actual knowledge required for mandatory reporting. If the lawyer does reach the knowledge threshold, the reporting duty remains limited by confidentiality and the need for informed client consent to disclose protected information.

Common questions

Q: Does the client's report automatically require the lawyer to report the judge?

A: No. Rule 4-8.3(b) requires knowledge, and the opinion says no reporting duty arises if the lawyer does not have it.

Q: What does knowledge mean?

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

Q: Must the alleged conduct also violate a judicial-conduct rule?

A: Yes. The opinion conditions the duty on the statements constituting a violation of the applicable Code of Judicial Conduct under Rule 2.

Q: Which authority receives the report?

A: The opinion names the Commission on Retirement, Removal, and Discipline.

Q: Is client consent required?

A: Yes, when making the report would disclose information related to the representation protected by Rule 4-1.6(a).

Background and rules framework

Rule 4-8.3(b) governs reporting known judicial misconduct, while Rule 4-1.0(f) supplies the knowledge standard. Rule 4-8.3(c) and Rule 4-1.6(a) protect information relating to the client representation.

Citations and references

Rules of Professional Conduct:

• Missouri Rules 4-1.0(f), 4-1.6(a), 4-8.3(b), and 4-8.3(c)

Judicial conduct rules:

• Missouri Code of Judicial Conduct, Rule 2

See also

• New York Ethics Op. 1099: Reporting Judicial Misconduct
• ABA Formal Op. 524: Government Lawyers Reporting Official Misconduct
• Ohio Opinion 1989-032: Judge Reporting Lawyer Misconduct

Source

• Landing page: Missouri Informal Opinion 2021-09

Original opinion text

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

Question: Does Attorney have an obligation to report a judge to the Commission on Retirement, Removal, and Discipline, where Client tells Attorney Judge made statements regarding Client off the record prior to the hearing indicating Judge is not impartial in a matter in which Attorney represents Client. Attorney was not present when the statements were allegedly made.

Answer: Rule 4–8.3(b) requires Attorney to report Judge to the appropriate authority, the Commission on Retirement, Removal and Discipline, if Attorney “knows” judge has made statements indicating lack of impartiality in a matter if that would be a violation of applicable rules of judicial conduct, the Code of Judicial Conduct under Rule 2. Rule 4–1.0(f) defines “knows” as “actual knowledge of the fact in question,” and actual knowledge may be inferred from circumstances. If Attorney does not have knowledge, Attorney is not obligated by Rule 4–8.3(b) to report Judge. If Attorney believes Attorney has knowledge of a violation of the applicable rules of judicial conduct such that a report is required, per Rule 4–8.3(c) Attorney must have the informed consent of Client to disclose any information related to the representation in making the report as required by Rule 4–1.6(a).