Must a lawyer report a former partner who neglected matters and mishandled client and firm funds, and what if the lawyer believes the partner is mentally impaired?

Plain-English summary

The inquirer sought guidance on his duty to report his former partner, "P," who had allegedly neglected and mishandled matters, avoided court appearances, failed to account for the firm's disbursements when forwarding settlement proceeds to a client, and deposited firm funds into his personal account; the inquirer also believed P had suffered from depression requiring medication. The question was when a lawyer must report such conduct under DR 1-103(A).

The committee explained that DR 1-103(A) requires reporting where a lawyer has knowledge, not protected as a confidence or secret, that raises a substantial question as to another lawyer's honesty, trustworthiness, or fitness. It cautioned that a lawyer should not report mere suspicion; reporting requires actual knowledge or, per EC 1-4, a clear belief that a violation occurred, citing Doe v. Federal Grievance Committee, 847 F.2d 57 (2d Cir. 1988) (the lawyer must "clearly know, rather than suspect"). The committee addressed the confidentiality limit: conduct observed in the office or in conversations unrelated to client matters is not a confidence or secret, but information about specific client cases may be a "secret" under DR 4-101(A), and that does not change because the clients are former clients. If the secrets doctrine applies, the inquirer should seek the affected clients' consent before disclosing details to a disciplinary committee. On substantiality, the committee drew on the comment to Model Rule 8.3, noting "substantial" refers to the seriousness of the offense, not the quantum of evidence, and found that a pattern of neglect (DR 6-101(A)(2)-(3)) and, more compellingly, a failure to account for settlement funds (DR 9-102(C)) or conversion of client or firm funds raised substantial questions warranting a report. Finally, it concluded that if the inquirer had actual knowledge or clearly believed P was impaired or unfit to practice due to mental incapacity, the disciplinary or grievance committee should be informed so it could consider a psychiatric evaluation or temporary suspension; a resolved short-term problem would not require reporting.

Currency note

This opinion was issued in 1995, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules and Ethical Considerations cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. 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: When must a lawyer report another lawyer's misconduct?

A: The opinion concluded the duty under DR 1-103(A) arises on knowledge, not protected as a confidence or secret, that raises a substantial question as to the other lawyer's honesty, trustworthiness, or fitness; mere suspicion is not enough.

Q: How does the duty to protect client confidences affect reporting?

A: Per the opinion, information about specific client matters may be a "secret" under DR 4-101(A), so if that doctrine applies the lawyer should obtain the affected clients' consent before disclosing details to the disciplinary committee.

Q: Does failing to account for settlement funds have to be reported?

A: The committee found a failure to account for settlement funds under DR 9-102(C), and any conversion of client or firm funds, to be a serious matter reflecting on honesty that should be reported where the lawyer has the requisite knowledge.

Q: What if the lawyer believes the other lawyer is mentally impaired?

A: The committee concluded that actual knowledge or a clear belief that the partner is impaired or unfit due to mental incapacity should be reported to the disciplinary or grievance committee so it can act to protect the public.

Background and rules framework

The opinion applied New York Code DR 1-103(A) (reporting misconduct), DR 4-101(A) (confidences and secrets), DR 6-101(A)(2)-(3) (neglect), DR 7-102(B) (knowledge standard for disclosure), DR 9-102(C) (accounting for funds), and EC 1-4, drawing on the comment to Model Rule 8.3 for the meaning of "substantial." The analysis corresponds to ABA Model Rules 8.3 (reporting professional misconduct), 1.6 (confidentiality), and 8.4 (misconduct).

Citations and references

Rules of Professional Conduct:

• New York Code DR 1-103(A), DR 4-101(A), DR 6-101(A)(2), DR 6-101(A)(3), DR 7-102(B), DR 9-102(C); EC 1-4 (applied in the opinion)
• MR 8.3 (reporting misconduct); MR 1.6 (confidentiality); MR 8.4 (misconduct)

Cases:

• Doe v. Federal Grievance Committee, 847 F.2d 57 (2d Cir. 1988), knowledge standard for the duty to report
• Wiener v. Weintraub, 22 N.Y.2d 330 (1968), immunity for disciplinary complainants
• Matter of Wieder, 80 N.Y.2d 628 (1992); Matter of Jochnowitz, 189 A.D.2d 342 (1st Dep't 1993); Matter of Dowd, 78 A.D.2d 160 (2d Dep't 1990)

Other opinions cited:

• N.Y. City 1990-3, 82-79, 80-42; N.Y. State 480 (1977), 635 (1992): the knowledge threshold for reporting

See also

• NYC Bar Formal Op. 1995-6: Holding Settlement Funds for an Incompetent Client
• ISBA Ethics Op. 684: Law Firm Employing a Nonlawyer Labor Specialist
• ISBA Ethics Op. 707: Lay Intermediaries Between Lawyers and Clients

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-1995-5-duty-to-report-misconduct-mental-incapacity/