Does a local bar's grievance committee have to tell law-enforcement about criminal conduct it uncovers while investigating an attorney?
Ohio BPC Opinion 86-001: Duty of a Certified Grievance Committee to Report Crime Uncovered in an Attorney Investigation
Short answer: The opinion concluded that under Ethical Consideration 1-4 of the former Ohio Code of Professional Responsibility, a Certified Grievance Committee had a duty to inform law-enforcement authorities of criminal conduct uncovered during a disciplinary investigation, and that the investigating attorney had a separate duty under DR 1-103 to report unprivileged knowledge of another lawyer's misconduct.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the bar's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.
Plain-English summary
This opinion responded to a Columbus Bar Association inquiry about three related questions: whether a Certified Grievance Committee had a duty to report crimes it uncovered during an attorney disciplinary investigation, whether (absent such a duty) it could nonetheless report without violating Bar Governance rules on the confidentiality of disciplinary investigations, and whether the individual attorney conducting the investigation had a duty under DR 1-103 to disclose evidence of a crime.
The Board concluded that EC 1-4 of the Code of Professional Responsibility imposed a duty on the investigating body to inform the appropriate law-enforcement or prosecutorial authority of any alleged criminal violation found in the course of an investigation. The Board acknowledged that EC 1-4 was an Ethical Consideration ("aspirational in character") rather than a Disciplinary Rule, but treated it as guiding the conduct expected of a grievance committee.
On the apparent conflict with Gov. Bar R. V, Section 23 (which required disciplinary proceedings to remain private absent the respondent's waiver), the Board held that the reporting duty under EC 1-4 generally prevailed, citing Ohio Rev. Code Section 2921.22 (a general statutory duty to report felonies) and reasoning that the severity of the crime and the certainty of its commission would weigh heavily in favor of reporting. The Board further read Gov. Bar R. V, Section 42 (which provided that no investigation would be invalid for a non-prejudicial irregularity, and that the disciplinary rules were to be liberally construed for the protection of the public) as supporting the disclosure, on the rationale that reporting alleged crimes to law-enforcement would not amount to prejudicial error in the disciplinary case.
On the third question, the Board held that DR 1-103, unlike an Ethical Consideration, was mandatory and required an investigating attorney who uncovered evidence of illegal activity by the respondent attorney to disclose it to the proper authorities.
Currency note
This opinion was issued in 1987, under the former Ohio Code of Professional Responsibility. The Board of Commissioners' status list flags it as a CPR Opinion (the Ohio Code of Professional Responsibility was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007) and as "Not Current" because Gov. Bar R. V Section 42 was renumbered as Gov. Bar R. V11(D) effective July 1, 1992. The Board's current reporting-of-misconduct framework operates under Ohio Prof. Cond. R. 8.3 rather than DR 1-103, and the confidentiality of investigations is now governed by amended Gov. Bar R. V provisions. 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: What did EC 1-4 require a grievance committee to do under the former Code?
A: Per the opinion, EC 1-4 stated that if an investigation by a grievance or ethics committee, or by the office of disciplinary counsel, found that persons involved in the investigation may have violated federal or state criminal statutes, it was the investigatory agency's duty to notify the appropriate law-enforcement or prosecutorial authority.
Q: How did the opinion resolve the conflict between EC 1-4 and the privacy rule for disciplinary investigations?
A: The opinion held that the reporting of crimes allegedly committed by attorneys generally outweighed the respondent's privacy interest in the disciplinary proceeding, identifying the severity of the crime and the degree of certainty as the factors weighing in favor of reporting. The Board cited the public-protection purpose of Gov. Bar R. V, Section 42 and the general felony-reporting duty in Ohio Rev. Code Section 2921.22 in support.
Q: Did the opinion impose a separate duty on the investigating attorney?
A: Yes. The opinion concluded that DR 1-103, being a mandatory Disciplinary Rule rather than an aspirational Ethical Consideration, required the investigating attorney to disclose unprivileged knowledge of another lawyer's misconduct, including criminal activity uncovered during a disciplinary investigation.
Background and rules framework
The opinion interpreted EC 1-4 and DR 1-103 of the former Ohio Code of Professional Responsibility, Gov. Bar R. V Sections 23 and 42 (now renumbered), and Ohio Rev. Code Section 2921.22. The CPR was the predecessor body of rules to the Ohio Rules of Professional Conduct (effective February 1, 2007); the analog of DR 1-103 in the current rules is Ohio Prof. Cond. R. 8.3, which itself differs from the former rule's scope and triggers.
Citations and references
Rules of Professional Conduct:
- EC 1-4, Code of Professional Responsibility (1970) (former rule)
- DR 1-103, Code of Professional Responsibility (former rule)
Statutes:
- Ohio Rev. Code Section 2921.22 (felony-reporting duty)
- Gov. Bar R. V, Section 23 (1986) (privacy of disciplinary proceedings)
- Gov. Bar R. V, Section 42 (1986) (later renumbered Gov. Bar R. V11(D), eff. July 1, 1992)
See also
No sibling opinions yet indexed.
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-86-001.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 86-001
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]
[Not Current-subsequent rule amendments to Gov. Bar R. V § 42, renumbered as Gov. Bar R. V11(D), eff. Jul. 1, 1992.]
SYLLABUS: The Certified Grievance Committee of a local bar association has a duty to inform law enforcement officials of criminal activity by an attorney being investigated, when such evidence is uncovered during the course of an investigation.
TO: Keith Bartlett, Columbus Bar Association
FROM: The Board of Commissioners on Grievances and Discipline of the Bar
DATE: May 5, 1987
We have before us your request for our opinion concerning the duty to report evidence of criminal activity uncovered during a disciplinary investigation of an attorney. In your request letter you state:
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Does the Grievance Committee have a duty to report to law enforcement officials its belief that criminal acts have been committed by the respondent attorney?
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If the committee does not have a duty or obligation to report such conduct, may it nonetheless report the conduct without violating the rules of confidentiality of the Rules for the Government of the Bar?
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Does the person who conducted the investigation, who is an attorney subject to the Code of Professional Responsibility, have a duty under Disciplinary Rule 1-103 to disclose his evidence of alleged criminal activity by another lawyer to the appropriate law enforcement personnel?
Your first question, regarding a duty to report, is not addressed in the Rules for the Government of the Bar. However, under EC 1-4 of the Code of Professional Responsibility (the "Code"), there is a duty imposed on the investigating body to inform law enforcement officials of possible criminal activity by the attorney being investigated. Ethical Consideration 1-4 of the Code states:
. . . If in the course of an investigation by a grievance or ethics committee of a bar association or by the office of disciplinary counsel it is found that persons involved in the investigation may have violated federal or state criminal statutes, it is the duty of the investigatory agency to notify the appropriate law enforcement or prosecutorial authority of such alleged criminal violation . . . EC 1-4, Code of Professional Responsibility (1970).
The framers of the Code intended the ethical considerations to be "aspirational in character and represent the objectives toward which every member of the profession should strive." Code of Professional Responsibility, Preface (1970). Therefore, as a Certified Grievance Committee of the local bar association, you should notify the appropriate authorities upon discovering any alleged criminal violation by the attorney under investigation.
Your second question addresses Gov. Bar R. V, Section 23. This rule requires that all proceedings and documents shall remain private during an investigation of a complaint unless the respondent, by voluntary act, waives his or her right to privacy or requests in writing that the proceedings be public. Thus, the privacy requirement under Gov. Bar R. V, Section 23 is in conflict with the duty to report under EC 1-4 of the Code. The question then becomes, how is this apparent conflict resolved?
Under Ohio Rev. Code Section 2921.22, all persons knowing a felony has been or is being committed, are required to report such to law enforcement authorities. O.R.C., 2921.22 (1986). "The rationale for requiring that serious crimes be reported is that effective crime prevention and law enforcement depend significantly on the cooperation of the public." Commentary, O.R.C., 2921.22 (1986).
We believe that in most situations, the reporting of crimes, allegedly committed by attorneys, outweighs any privacy rights that an attorney might have regarding a disciplinary investigation. However, there are several factors which must be considered when determining which rule should take precedence. For instance, the more severe the crime, coupled with the degree of certainty that a crime was committed weigh heavily in favor of reporting the crime to the proper authorities.
Furthermore, although an attorney under investigation for an alleged disciplinary violation has a privacy interest during the investigation, Gov. Bar R. V, Section 42 states: "[no] investigation or procedure shall be held to be invalid by reason of any non-prejudicial irregularity or for any error not resulting in a miscarriage of justice." Gov. Bar R. V, Section 42 (1986). The rule also states that all the rules relating to investigations shall be liberally construed for the protection of the public. Id. In light of that rule, we believe the reporting of alleged crimes to law enforcement officials is necessary to protect the public and would not amount to prejudicial error in the disciplinary case.
Your third question deals with an attorney's affirmative duty under DR 1-103 to report any unprivileged knowledge of another attorney's misconduct to the proper authorities. Unlike the Ethical Considerations in the Code, all of the Disciplinary Rules are mandatory in character. Code of Professional Responsibility, Preface (1970). Therefore, if during an investigation of a complaint, the investigating attorney uncovers evidence of illegal activity by the attorney named in the complaint, this information must be disclosed to the proper authorities.
Based on the foregoing, it is our opinion, and you are so advised, that a Certified Grievance Committee has an obligation to inform criminal authorities regarding illegal acts of an attorney which were discovered during a disciplinary investigation.
This opinion is advisory in nature, is based upon the facts as presented and is limited to questions arising under the Code of Professional Responsibility, Gov. Bar R. V and Section 2921.22 of the Ohio Revised Code.
JAMES W. Mason, Esq.
Secretary, Board of Commissioners
on Grievances and Discipline
of the Judiciary of
The Supreme Court of Ohio