When a New York lawyer must report another lawyer's misconduct, who counts as the right authority, and does telling a lawyer assistance program satisfy the duty?
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This page answers the general question as of 2008. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
DR 1-103(A) required a lawyer who possessed unprivileged knowledge of another lawyer's violation raising a substantial question about that lawyer's honesty, trustworthiness, or fitness to report it "to a tribunal or other authority empowered to investigate or act upon such violation." The committee assumed the four prerequisites for a mandatory report (set out in N.Y. State 635) were met, and addressed a single question: to whom must the report go, and does telling a lawyer assistance program (LAP) count?
The committee concludes the report must go to a body that can investigate or act. The phrase "investigate or act" indicates a court of competent jurisdiction or a body with enforceable subpoena power. A violation arising in litigation can be reported to the tribunal hearing the matter; in any context the report can go to a grievance or disciplinary committee operating under the Appellate Division's authority under Judiciary Law section 90, whether in the department where the litigation is pending, where the lawyer is admitted, or where the conduct occurred. The report need not be immediate; some reasonable effort at remediation is allowed, particularly where reporting might harm the reporting lawyer's own client more than an alternative. Once a report is made to one appropriate authority, the duty is satisfied even though other authorities existed.
Reporting to an LAP does not satisfy the duty. Clarifying N.Y. State 531 (which had described an LAP as analogous to an authority empowered to investigate or act), the committee explains that an LAP has no formal powers: its services are voluntary, the impaired lawyer can refuse them, and without that lawyer's cooperation the LAP cannot investigate whether the impairment produced a rule violation. An LAP's focus is the lawyer's recovery, not policing code violations, and discipline may even be at odds with recovery. Referring an impaired lawyer to an LAP is encouraged, but it does not discharge the profession's self-regulatory reporting obligation. (Lawyers who serve on an LAP themselves have no duty to report under DR 1-103.)
In practice
The opinion holds, under the former Code as it stood at the time, that a mandatory DR 1-103(A) report must be directed to a tribunal or to a grievance or disciplinary committee with investigative or subpoena power, and that an LAP referral does not satisfy the duty because an LAP has no enforcement power and exists to aid recovery rather than to investigate violations. The committee notes the report need not be instantaneous (reasonable remediation efforts are allowed), and that reporting to one appropriate authority discharges the obligation.
Common questions
Q: To whom must a New York lawyer report another lawyer's misconduct?
A: To a tribunal or other authority empowered to investigate or act, meaning a court of competent jurisdiction or a body with enforceable subpoena power, such as a grievance or disciplinary committee operating under the Appellate Division's authority under Judiciary Law section 90.
Q: Does reporting to a lawyer assistance program satisfy the reporting duty?
A: No. The committee concludes that an LAP, which is voluntary and has no power to investigate or compel, is not an appropriate authority; reporting to it is salutary but does not satisfy the mandatory reporting requirement, clarifying contrary language in N.Y. State 531.
Q: Must the report be made immediately?
A: Not necessarily. The committee states the report need not be immediate and that some reasonable effort at remediation is permitted, particularly where reporting could harm the reporting lawyer's own client more than an alternative course; once reported to one appropriate authority, the duty is satisfied.
Background and rules framework
The opinion interprets DR 1-103(A) (mandatory reporting of another lawyer's misconduct, the analogue of ABA Model Rule 8.3) and DR 1-102(A) (the misconduct categories that can trigger it, the analogue of ABA Model Rule 8.4), against the prerequisites for a report set out in N.Y. State 635 (1992). It treats the lawyer assistance program function under Judiciary Law section 499 (confidentiality of information given to such programs) and EC 1-4 on the importance of reporting to the integrity of the profession.
Citations and references
Rules of Professional Conduct:
- MR 8.3 (reporting professional misconduct); MR 8.4 (misconduct)
- Former Code DR 1-103(A); DR 1-102(A); EC 1-4
Statutes:
- Judiciary Law section 90 (Appellate Division disciplinary authority); Judiciary Law section 499 (confidentiality of lawyer assistance program information)
Other opinions cited:
- N.Y. State 531 (1981): clarified, an LAP is not an authority to which misconduct may be reported
- N.Y. State 635 (1992): the four prerequisites for a mandatory report
- ABA Formal Op. 03-429 and 03-431: obligations regarding an impaired lawyer and the duty to report
See also
- NY State Bar Op. 854: Reporting a known or suspected violation of the Rules
- NY State Bar Op. 1099: No duty to report judicial misconduct
Source
- Landing page: https://nysba.org/ethics-opinion-822/
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