May a Missouri lawyer delay a required report about opposing counsel while settlement negotiations are underway and trial is near?

Plain-English summary

The lawyer had already concluded that Rule 4-8.3 required a report about opposing counsel. The client's case was nearing trial and settlement negotiations were underway, so the lawyer asked whether the report could wait.

Rule 4-8.3 does not specify a reporting deadline, but the opinion states that a required report is generally presumed to be due as promptly as possible. That timing protects the public and profession from future misconduct.

The opinion also relies on Scope [14]'s description of the rules as rules of reason and on Rule 4-8.3 Comment [2], which recognizes possible prejudice to a client's interests when seeking informed consent to disclose confidential information. The lawyer could therefore consider the adverse effect on the client, including prejudice from reporting during settlement negotiations near trial. Even after that consideration, the report still had to be made reasonably promptly.

In practice

Under this opinion, the client's litigation interests affect timing but do not cancel a reporting obligation the lawyer has already found to exist. The report's destination is the Office of Chief Disciplinary Counsel, and the governing standard is reasonable promptness in light of the identified client prejudice.

Common questions

Q: Does Rule 4-8.3 specify an exact reporting deadline?

A: No. The opinion says the rule does not address timing directly.

Q: May the lawyer consider harm to the client from reporting during settlement negotiations?

A: Yes. The opinion treats client prejudice in ongoing negotiations near trial as a factor that may affect timing.

Q: Does client prejudice eliminate the duty to report?

A: No. If the Rule 4-8.3 duty exists, the opinion requires a reasonably prompt report despite timing concerns.

Q: Where must the report be sent?

A: To the Missouri Office of Chief Disciplinary Counsel.

Background and rules framework

Missouri Rule 4-8.3 supplies the duty to report another lawyer's qualifying misconduct. Comment [2] addresses client prejudice when confidential information is involved, and Scope [14] frames the professional-conduct rules as rules of reason.

Citations and references

Rules of Professional Conduct:

• Missouri Rule 4-8.3 and Comment [2] (reporting professional misconduct)
• Missouri Rules of Professional Conduct, Scope [14]

Other opinions cited:

• Missouri Informal Opinion 2019-02: threatened criminal prosecution or disciplinary complaint and the reporting duty

See also

• Wisconsin Ethics Op. EF-26-01: Reporting Lawyer or Judge Misconduct
• Virginia Ethics Op. 1646: Timing a Misconduct Report During Civil Litigation
• Louisiana Ethics Op. 06-RPCC-010: Reporting Lawyer Misconduct

Source

• Landing page: Missouri Informal Opinion 2025-02

Original opinion text

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

Question: Lawyer has determined that Lawyer must report the misconduct of another lawyer to the Office of Chief Disciplinary Counsel pursuant to Rule 4–8.3. However, Lawyer is concerned about the timing of that report, as Lawyer is representing client in litigation that is near to trial, and the report pertains to the lawyer on the opposing side. Settlement negotiations are underway. May Lawyer wait to inform the Office of Chief Disciplinary Counsel as to the misconduct of opposing counsel pursuant to Rule 4–8.3?

Answer: If Lawyer determines that Lawyer is required to report pursuant to Rule 4–8.3, that obligation exists regardless of the timing. While Rule 4–8.3 does not address the timing of the report, it is generally presumed that the report should be done as promptly as possible. This requirement derives from the need to safeguard the public and the profession from future misconduct by the offending attorney. As stated in Scope [14], “[t]he Rules of Professional Conduct are rules of reason.” Comment [2] to Rule 4–8.3 references potential prejudice to a client’s interests in the context of seeking informed consent to disclose confidential information. This reference suggests that Lawyer may consider the adverse impact on the client when determining the timing of the report. While Lawyer may consider the interests of the client in the timing of filing a report, and prejudice to the client in the middle of settlement negotiations with a trial nearing may be such a factor, if an obligation to report exists pursuant to Rule 4–8.3, a report should be made reasonably promptly to the Office of Chief Disciplinary Counsel. See also Missouri Informal Opinion 2019–02 (threat of criminal prosecution or disciplinary complaint; duty to report).