If a lawyer on a bar rehabilitation committee learns of another lawyer's misconduct during counseling, must they report it to disciplinary authorities?

Plain-English summary

The committee considered a bar association program in which lawyers counsel colleagues suffering from drug or alcohol abuse, and during that counseling the troubled lawyers reveal instances of professional misconduct stemming from the abuse. It asked whether the counseling committee's members must report that misconduct under DR 1-103(A), which requires a lawyer with "unprivileged knowledge" of another lawyer's misconduct to report it to a tribunal or other authority empowered to investigate or act. That duty rests on Canon 1's pronouncement that a lawyer should assist in maintaining the integrity and competence of the profession.

The committee considered, then set aside, an argument that Canon 4's protection of client confidences and secrets applied. It reasoned that the troubled lawyers are not seeking legal services or advice from the counselors; they seek understanding, trust, and support. Because DR 4-101's "professional relationship" means the attorney-client relationship, communications received while the counselor acts in another capacity are not protected by Canon 4 (citing ABA Inf. 309 (1960)).

Even so, the committee held that the same regard for the Code's purposes restrains a literal application of DR 1-103(A). Forcing the reporting rule onto rehabilitation counseling would undermine, and perhaps destroy, a thoughtful bar effort to maintain the integrity and improve the competence of the bar. It found that a rehabilitation committee stands in a position analogous to a tribunal or other authority empowered to act on misconduct information; since the information has already reached people who may act on it, requiring them to report it elsewhere would be anomalous. Despite the rule's literal wording, the committee concluded its members may with ethical propriety refrain from reporting. The question was answered in the negative.

Currency note

This opinion was issued in 1981, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (reporting another lawyer's misconduct now appears at Rule 8.3, which includes an express exception for information gained while participating in an approved lawyers' assistance program, and confidentiality at Rule 1.6). 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: Must a bar rehab committee member report a lawyer's misconduct learned during counseling?

A: No. The committee concluded that members may ethically refrain from reporting misconduct disclosed during drug or alcohol rehabilitation counseling.

Q: Are the counseling communications protected by the confidentiality rules?

A: The committee held they are not protected by Canon 4, because the troubled lawyer is not seeking legal services; the relief instead comes from reading DR 1-103(A) consistent with the Code's purposes.

Q: Why didn't the reporting rule apply by its terms?

A: The committee found that applying DR 1-103(A) literally would undermine a legitimate bar rehabilitation effort, and that the committee itself is analogous to an authority empowered to act, so a further report would be anomalous.

Background and rules framework

The opinion applied DR 1-103(A) (reporting another lawyer's misconduct) and DR 4-101 (confidences and secrets), under Canon 1 and Canon 4 and EC 1-1, EC 1-4, and EC 4-4, to a bar rehabilitation committee. The closest current Model Rule analogues are Rule 8.3 (reporting professional misconduct, with its lawyers'-assistance-program exception) and Rule 1.6 (confidentiality of information).

Citations and references

Rules of Professional Conduct:

• MR 8.3 (reporting professional misconduct)
• MR 1.6 (confidentiality)
• NY Canon 1, Canon 4, EC 1-1, EC 1-4, EC 4-4, DR 1-102, DR 1-103(A), DR 4-101(A)-(C)

Cases:

• NCK Organization Ltd. v. Bergman, 542 F.2d 128 (2d Cir. 1976), scope of confidentiality
• Cord v. Smith, 338 F.2d 516 (9th Cir. 1964), capacity in which a lawyer acts

Other opinions cited:

• ABA Inf. 309 (1960): no Canon 4 protection when the lawyer acts in another capacity
• N.Y. State 456 (1977): bar's role in maintaining integrity and competence

See also

• NY State Bar Op. 530: Turning over physical evidence held for a client
• NY State Bar Op. 528: Client whereabouts and the duty to preserve confidences

Source

• Landing page: https://nysba.org/opinion-531/