Does a lawyer have to report a non-client third party's violation of law that the lawyer learned about while representing a client?

Plain-English summary

The inquirer was a New York-admitted lawyer working overseas for a private company who learned that a non-lawyer third party, with whom the employer had a business arrangement, had apparently violated the law in obtaining an agreement between the two. The inquirer's own services were not used in the violation, no other lawyer was involved, and the matter had not been presented to any tribunal. The question was whether the inquirer had an obligation to report the violation where the wrongdoer was not the client.

The committee first noted that a New York-admitted lawyer remains subject to the New York Code regardless of where the conduct occurs (DR 1-105(A)), with DR 1-105(B) governing which jurisdiction's rules apply. It then found no ethical duty to report on these facts. The Code's reporting obligations are DR 1-103 (conduct of another lawyer or judge), which did not apply because no lawyer or judge was involved, and DR 7-102(B), which addresses fraud in a proceeding where the lawyer's services were employed or fraud on a tribunal, neither of which was present.

The committee went further: the lawyer might be prohibited from reporting. Under DR 4-101, information gained in the professional relationship whose disclosure would be detrimental to the client is a protected "secret," even if it did not come from the client. Information about a third party's legal violation in obtaining a business agreement with the client could therefore be a secret the lawyer may not reveal, subject to the future-crime exception in DR 4-101(C)(3). Because the committee does not decide questions of law, it expressed no view on whether any legal duty to report existed or whether the future-crime exception applied.

Currency note

This opinion was issued in 2001, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 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 Treat this page as historical context, not current guidance.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: Does a lawyer have to report a non-client's violation of law learned during a representation?

A: The opinion concluded no, on these facts. The Code's reporting rules reach the conduct of another lawyer or judge (DR 1-103) and fraud in a proceeding or on a tribunal (DR 7-102(B)); neither applied where no lawyer, judge, or tribunal was involved.

Q: Could the lawyer report the violation voluntarily?

A: Possibly not. The opinion concluded that if the information is a confidence or secret under DR 4-101, the lawyer may be prohibited from disclosing it, unless the future-crime exception in DR 4-101(C)(3) applies.

Q: Did the committee decide whether the law required reporting?

A: No. The committee noted that whether any legal duty to report existed, and whether particular conduct was a violation of law, were questions of law outside its jurisdiction.

Background and rules framework

The opinion interpreted New York's former Code of Professional Responsibility: DR 1-103 (reporting another lawyer or judge), DR 1-105 (a New York lawyer's amenability to discipline and choice of governing rules), DR 4-101 (confidences and secrets, including the future-crime exception), and DR 7-102(B) (a lawyer's duties on learning of fraud). The Model Rule analogues are Rule 1.6 (confidentiality), Rule 8.3 (reporting professional misconduct, which is limited to lawyers and judges), and Rule 8.5 (disciplinary authority and choice of law). New York replaced the Code with the Rules of Professional Conduct in 2009; the DR numbers cited here are historical.

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality); MR 8.3 (reporting misconduct of lawyers and judges); MR 8.5 (disciplinary authority and choice of law)
• NY DR 1-103; DR 1-105(A), (B); DR 4-101(A), (C); DR 7-102(B)

Other opinions cited:

• N.Y. State 523 (1980): limiting DR 7-102(B)(2) and recognizing that a client confidence or secret may bar reporting a third party's fraud

See also

• NY State Bar Op. 1120: Government lawyer reporting misconduct
• NY State Bar Op. 1099: No duty to report judicial misconduct
• NY State Bar Op. 1034: Lawyer for an executor suspecting fiduciary misconduct

Source

• Landing page: https://nysba.org/opinion-742/