Must a Mississippi lawyer report another lawyer's misconduct under Rule 8.3 even if the client objects, the other lawyer denies it, and it was already reported in another state?

Plain-English summary

The Committee was asked about a lawyer (Attorney A) who learned, through a deposition taken in another state's case that he did not attend, of possible misconduct by another lawyer (Attorney B) that occurred in Mississippi litigation. Attorney B is licensed in Mississippi or was admitted pro hac vice in a Mississippi matter and denies the allegations. Attorney A's client did not want the conduct reported unless required, fearing additional litigation.

The opinion set out MRPC 8.3(a), which requires a lawyer who has knowledge that another lawyer committed a violation raising a substantial question as to honesty, trustworthiness, or fitness to inform the appropriate professional authority. Drawing on the Mississippi Supreme Court's definition of "knowledge" in Mississippi Bar v. Attorney U, 678 So. 2d 963 (Miss. 1996), the opinion said that whether Attorney A must report depends on whether the deposition information meets that standard; because the nature of Attorney B's conduct was not disclosed, the Committee could not decide whether it rose to the Rule 8.3 level, noting the Comment's point that "substantial" refers to the seriousness of the offense, not the quantum of evidence.

The opinion resolved the three sub-questions. First, it concluded Rule 1.6 does not override Rule 8.3, because Rule 8.3 was amended in 1994 to delete the Rule 1.6 prohibition, so the client's wishes are immaterial (citing E.O. 205). Second, it concluded that while Attorney B's admission would be conclusive, his denial is not; the question remains whether the information meets Rule 8.3 and the Attorney U standard. Third, it concluded that reporting the conduct to a foreign disciplinary authority is not sufficient: Mississippi misconduct must be reported to The Mississippi Bar (citing Rule 8.5), and if Attorney B is licensed elsewhere the conduct must also be reported in those jurisdictions.

Currency note

This opinion was issued in 2000, interpreting the Mississippi Rules of Professional Conduct (adopted effective June 22, 1994, and amended February 5, 1999, including the 1994 amendment to Rule 8.3 the opinion discusses). Mississippi did not adopt the ABA's 2002 Ethics 2000 revisions wholesale, but subsequent rule amendments or 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: Can a client tell a lawyer not to report another lawyer's misconduct?

A: The opinion concluded the client's desire is immaterial, because Rule 8.3 was amended in 1994 to delete the Rule 1.6 prohibition, so Rule 1.6 confidentiality does not override the Rule 8.3 reporting duty here.

Q: Does the other lawyer's denial of misconduct end the duty to report?

A: No. The opinion concluded that while an admission would be conclusive, a denial is not; the question is whether the information meets the Rule 8.3 and Attorney U standard.

Q: If the misconduct was already reported in another state, does that satisfy the duty?

A: No. The opinion concluded that Mississippi misconduct must be reported to The Mississippi Bar (citing Rule 8.5); reporting it only to a foreign authority is not sufficient, and if the lawyer is licensed elsewhere it must also be reported there.

Q: What counts as "knowledge" of misconduct?

A: Per the opinion, the Attorney U decision defined knowledge as supporting evidence such that a reasonable attorney would have formed a firm opinion that the conduct more likely than not occurred and, if it occurred, raises a substantial question about the offender's honesty, trustworthiness, or fitness.

Background and rules framework

The opinion interprets Mississippi Rule of Professional Conduct 8.3 (reporting professional misconduct; cf. Model Rule 8.3), reads it together with Rule 1.6 (confidentiality; cf. Model Rule 1.6) as amended in 1994, and applies Rule 8.5 (jurisdiction) to direct reports to the bar where the conduct occurred. It relies on Mississippi Bar v. Attorney U and the Committee's prior Ethics Opinion 205.

Citations and references

Rules of Professional Conduct (Mississippi; cf. Model Rules):

• MRPC 8.3 (reporting professional misconduct) (cf. Model Rule 8.3)
• MRPC 1.6 (confidentiality of information) (cf. Model Rule 1.6)
• MRPC 8.5 (jurisdiction) (cf. Model Rule 8.5)

Cases:

• Mississippi Bar v. Attorney U, 678 So. 2d 963 (Miss. 1996), defining "knowledge" for Rule 8.3

Other opinions cited:

• Mississippi Ethics Opinion 205

See also

• ABA Formal Op. 04-433: Reporting Misconduct of a Non-Practicing Lawyer
• ABA Formal Op. 03-431: Reporting an Impaired Lawyer Outside the Firm

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/247/
• Original PDF: https://www.msbar.org/media/1483/35a_et_op_247.pdf

Original opinion text

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

ETHICS OPINION NO. 247

OF THE MISSISSIPPI BAR

RENDERED November 16, 2000

REPORTING ATTORNEY MISCONDUCT - A Mississippi attorney must report the possible misconduct of another attorney which occurred in the State of Mississippi, which conduct was brought to the attention of the requesting attorney pursuant to an out of state deposition in which his client was not involved, and must do so even if his client requests that he not, and must do so even if the conduct has already been reported to the Bar Disciplinary Authority in the jurisdiction in which the deposition was taken.

The Ethics Committee of The Mississippi Bar has been requested to render an opinion on the following facts:

Attorney A has received information which, if true, would indicate that one or more attorneys (attorney B) have committed acts of professional misconduct which possibly would require a disciplinary complaint to the Bar pursuant to M.R.P.C. 8.3. Attorney B is either licensed in this State or was admitted pro hac vice in litigation pending in this State. The possible misconduct related to and occurred in litigation which occurred in the State of Mississippi.

The information relating to the misconduct of attorney B was disclosed in a deposition taken in a case pending in another state. Attorney B denies the allegations of misconduct.

Attorney A did not attend the deposition and has no basis on which to determine the credibility of either the deponent or Attorney B. Attorney A's client does not want Attorney A to report the misconduct unless required by ethic rules, fearing that the report may lead to additional litigation involving the client.

The questions presented to the Ethics Committee are as follows:

1. Is the reporting obligation under M.R.P.C. 8.3 superceded by M.R.P.C. 1.6 which prohibits an attorney from revealing information relating to the representation of a client?

2. Is Attorney B's denial sufficient to remove the reporting obligation, if any, of Attorney A?

3. Does the fact that the misconduct of Attorney B was reported to the appropriate disciplinary authority in a foreign jurisdiction remove the obligation, if any, of Attorney A to report the misconduct to the appropriate disciplinary authority?

The Rule requiring reporting attorney misconduct is M.R.P.C. 8.3, the portions of which are relevant to this request are as follows:

M.R.P.C. 8.3: (a) A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

M.R.P.C. 8.3 requires an attorney having knowledge that another attorney has committed a violation of the Rules of Professional Conduct which "raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects . . ." has a duty to report that conduct. If the Mississippi attorney has knowledge of such conduct as defined by Miss. Bar v. Attorney U, 678 So. 2d 963 (Miss. 1996), and the out of state deposition raises those questions, then it is Attorney A's responsibility to report that misconduct to the "appropriate authority". Since the nature of attorney B's conduct is not disclosed in the request, this Committee is unable to opine as to whether that conduct rises to the level required by M.R.P.C. 8.3. However, the Committee would point out that the Comment to M.R.P.C. 8.3 states that "A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term "substantial" refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware".

With regard to the question as to whether M.R.P.C. 1.6 supersedes M. R. P. C. 8.3, that question need not be addressed since M.R.P.C. 8.3 was amended in 1994 deleting the M.R.P.C. 1.6 prohibition. Therefore, M.R.P.C. 1.6 is not relevant to the question presented and thus the desire of Attorney A's client is immaterial. See also Ethics Opinion 205.

With regard to Attorney B's denial of misconduct, while Attorney B's admission of misconduct would be conclusive, his denial of misconduct is not. The question is

whether the information received by Attorney A meets the criteria set forth in M.R.P.C. 8.3 and the Attorney U decision.

With regard to whether the reporting of misconduct in a foreign jurisdiction is sufficient so that Attorney A need not report the misconduct, one must again look at the clear language of M.R.P.C. 8.3. M.R.P.C. 8.3 states that attorney misconduct shall be reported to "the appropriate professional authority". If the conduct occurred in the State of Mississippi, then the conduct must be reported to The Mississippi Bar. See M.R.P.C. 8.5. Reporting attorney misconduct which occurred in the State of Mississippi to a foreign disciplinary authority is not sufficient. However, if Attorney B is also licensed in other jurisdictions, the conduct must also be reported to those jurisdictions.

Therefore, it is the opinion of this Committee that if the Mississippi attorney has the requisite knowledge of misconduct by Attorney B and the subject deposition raises substantial questions as to Attorney B's honesty, trustworthiness or fitness as an attorney in other respects, then that conduct must be reported, and, if the conduct occurred in the State of Mississippi, must be reported to The Mississippi Bar, and to any other jurisdiction in which Attorney B is licensed. Further, the alleged offending attorney's denials are not sufficient to overcome Attorney A's obligations under M.R.P.C. 8.3, nor does the fact that Attorney B's misconduct may have been reported to a foreign jurisdictional authority overcome Attorney A's obligation to report such misconduct to the appropriate disciplinary authorities.