Must an Ohio lawyer report another lawyer's misconduct learned while representing a client, and does client confidentiality excuse the duty?
Ohio BPC Opinion 90-001: Duty to Report Another Lawyer's Misconduct and the Privilege Exception
Short answer: The Board concluded that a lawyer must report unprivileged knowledge of another lawyer's violation under DR 1-103(A), but is not required to report privileged information and may reveal it only with client consent.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Ohio Board of Professional Conduct'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
The Board addressed a lawyer's duty to report another lawyer's misconduct where the lawyer represented a client against the client's former attorney to recover misappropriated money, and where a confidential settlement cured the delinquency without an admission of liability. The questions were whether the lawyer had a duty under DR 1-103(A) to report the former attorney, when that duty arises, whether the information was privileged, and whether the client's consent was required to reveal it.
The Board explained that DR 1-103(A) requires a lawyer who possesses unprivileged knowledge of a violation of DR 1-102 to report it to a tribunal or authority empowered to act, identifying the proper authority as the Office of Disciplinary Counsel or a bar association's certified grievance committee. It emphasized that the key phrase is "unprivileged knowledge," and that the duty to report is not relieved merely because the lawyer being reported denies misconduct. The Board discussed In re Himmel, in which the Illinois Supreme Court suspended a lawyer for failing to report another lawyer's conversion of client funds.
The Board expressly disagreed with the Himmel court's narrow reading of "privilege," concluding that DR 4-101 sets the parameters of the attorney-client privilege for purposes of the reporting duty. It explained that "confidences" and "secrets" are defined in DR 4-101(A), with a confidence protected by the attorney-client privilege (Ohio Rev. Code §2317.02) and a secret being other information the client requests be held inviolate. The Board concluded that a lawyer has a duty to report unprivileged knowledge of another lawyer's misconduct, is not required to report privileged information, and may reveal a client's secrets or confidences only with the client's consent under DR 4-101(C). A failure to report unprivileged knowledge within a reasonable time would violate DR 1-103.
Currency note
The Board withdrew this opinion by Advisory Opinion 2016-02. It issued in 1990 under Ohio's former Code of Professional Responsibility (superseded by the Ohio Rules of Professional Conduct effective February 1, 2007). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct before relying on any specific rule mentioned here.
Common questions
Q: Did the lawyer have to report the former attorney's misappropriation?
A: Under this opinion, only if the knowledge was unprivileged. The Board concluded a lawyer must report unprivileged knowledge of a DR 1-102 violation under DR 1-103(A), but is not required to report privileged information.
Q: Does a confidential settlement or the other lawyer's denial of liability excuse reporting?
A: The Board concluded the duty to report is not relieved where the lawyer being reported denies misconduct; the controlling question is whether the lawyer's knowledge is privileged.
Q: Can the lawyer report anyway if the information is privileged?
A: The Board concluded a lawyer may reveal a client's confidences or secrets only with the client's consent under DR 4-101(C).
Q: When does a failure to report become a violation?
A: The Board concluded that, once a lawyer determines a duty to report unprivileged knowledge exists, a failure to report within a reasonable time would violate DR 1-103.
Background and rules framework
The opinion interprets the former Code of Professional Responsibility: DR 1-103(A) (reporting unprivileged knowledge of misconduct), DR 1-102 (misconduct), DR 4-101(A) (definitions of confidences and secrets), DR 4-101(C) (revealing with consent), and EC 1-4, together with Ohio Rev. Code §2317.02 (attorney-client privilege in evidence).
Citations and references
Rules of Professional Responsibility (Ohio, former):
- DR 1-103(A), duty to report unprivileged knowledge of a violation
- DR 1-102, misconduct
- DR 4-101(A), definitions of "confidence" and "secret"
- DR 4-101(C), revealing confidences or secrets with client consent
- EC 1-4, voluntarily revealing unprivileged knowledge of violations
Statutes:
- Ohio Rev. Code §2317.02, attorney-client privilege
Cases:
- In re Himmel, 125 Ill.2d 531, 533 N.E.2d 790 (1988), suspension for failure to report another lawyer's misconduct
Other opinions cited:
- ABA Committee on Ethics and Professional Responsibility, Formal Op. 341 (1975): scope of "privilege" in the reporting duty
See also
- Ohio BPC Op. 1989-009: Prosecutor's Duty to Report a Firm Conflict
- Ohio BPC Op. 1989-032: Judge Reporting Lawyer Misconduct and Disqualification
- Ohio BPC Op. 1986-001: Grievance Committee and Crime Reporting
- Ohio BPC Op. 1989-002: Sharing Fees With a Suspended or Disbarred Lawyer
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-90-001.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 90-1
Issued February 23, 1990
Withdrawn by Adv. Op. 2016-02
[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.]
SYLLABUS: A lawyer is required under DR 1-103(A) to report any unprivileged knowledge of a violation of DR 1-102 to the Office of Disciplinary Counsel or a bar association's certified grievance committee. Disciplinary Rule 1-102 mandates that lawyers shall not violate a DR; circumvent a DR through the actions of another; engage in illegal conduct involving moral turpitude; engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; engage in conduct that is prejudicial to the administration of justice or; engage in any other conduct that adversely reflects on his or her fitness to practice law.
A lawyer is not required to report privileged information obtained in a confidential relationship. Privileged information would include both confidences and secrets as defined in DR 4-101(A). A lawyer may reveal a client's secrets or confidences if the client consents under DR 4-101(C).
OPINION: We have before us a request for an advisory opinion regarding a lawyer's duty to report another lawyer's misconduct under DR 1-103. The facts are as follows. A lawyer represents a client against the client's former attorney to recover certain monies the former attorney allegedly misappropriated from the client. A settlement is reached, curing the delinquencies but without an admission of liability by the former attorney. Confidentiality is a condition of the settlement.
The questions are whether the lawyer who represented the client against the former attorney has a duty under DR 1-103(A) to report the former attorney to the proper authorities. If there is a duty, when does it arise and at what point would a failure to report constitute a violation of DR 1-103(A)? More specifically, is the information acquired from the client regarding the former attorney's conduct privileged, thereby alleviating any duty to report? Finally, does the lawyer have to obtain his or her client's consent before revealing the information regarding the former attorney?
Disciplinary Rule 1-103(A) states that a lawyer possessing unprivileged knowledge of a violation of DR 1-102 shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation. The proper authority would be the Office of Disciplinary Counsel or a bar association's certified grievance committee. Disciplinary Rule 1-102 states that a lawyer shall not violate a DR, circumvent a DR through the actions of another; engage in illegal conduct involving moral turpitude; engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; engage in conduct that is prejudicial to the administration of justice or; engage in any other conduct that adversely reflects on his or her fitness to practice law.
A lawyer's obligation to report another lawyer's misconduct is "far from absolute." Lynch, The Lawyer As Informer, 1986 Duke L.J. 491, 515 (1986). However, one commentator has noted that "many lawyers who do come across truly serious misconduct by other lawyers want to report to the disciplinary authorities." Rotunda, The Lawyer's Duty to Report Another Lawyer's Unethical Violations in the Wake of Himmel, 1988 Univ. Ill. L.R. 977, 992 (1988).
The key phrase in DR 1-103(A) is "unprivileged knowledge." A lawyer must have knowledge that another lawyer has violated one of the provisions of DR 1-102 (this includes a violation of any DR) in order to invoke the reporting requirement. Ethical consideration 1-4 provides that a lawyer should reveal voluntarily all unprivileged knowledge which he or she believes is clearly in violation of the Disciplinary Rules. The knowledge requirement seems to exclude the lawyer "who has good faith questions about whether a violation has actually occurred." Lynch, The Lawyer As Informer, 1986 Duke L.J. 491, 516 (1986). Nevertheless, a lawyer's duty to report is not relieved where the lawyer being reported does not admit liability or even denies any misconduct. Rotunda, The Lawyer's Duty to Report Another Lawyer's Unethical Violations in the Wake of Himmel, 1988 Univ. Ill. L.R. 977, 985 (1988). Professor Rotunda further states,
at some point the lawyer's investigation and study of the client's charges will convince her that the allegations involving the other lawyer's misconduct are serious and substantial; . . . and that the evidence of such conduct is substantial enough that the lawyer has "knowledge." Within a reasonable time thereafter, the lawyer must report this knowledge if it is unprivileged.
In a controversial case the Illinois Supreme Court recently suspended a lawyer for one year based solely on his failure to report another lawyer's misconduct. In re Himmel, 125 Ill.2d 531, 533 N.E.2d 790 (1988). See, also, Marcotte, The Duty to Inform, ABAJ May, 1989 at 17; Middleton, Illinois Bar Is Jarred by "Snitch" Case, Nat'l L.J. Dec. 19, 1988, at 3, 23. Mr. Himmel represented a client attempting to recover a $23,233 personal injury settlement that her former attorney converted. Himmel settled the claim against his client's former attorney for $75,000 and was to receive one-third of any amount here covered above $23,233. At the client's direction, the settlement agreement included language prohibiting the disclosure of the former attorney's misconduct to the proper disciplinary agency. Himmel sued his client's former attorney who breached the agreement, winning a $100,000 judgment which brought Himmel's failure to report to the attention of the Illinois disciplinary commission.
The Illinois Supreme Court rejected Himmel's argument that the information regarding the former attorney was protected by the attorney-client privilege because the client's mother and fiance were present during the discussion of the case. The Court rejected Himmel's claim that he was following his client's instructions not to tell the disciplinary authorities and held: "[a] lawyer may not choose to circumvent the rules by simply asserting that his client asked him to do so." Id. at 539, 533 N.E.2d at 793.
In our view, the Himmel court overlooks the significance of the attorney-client privilege. We disagree with the court's narrow interpretation of the word "privilege" under DR 1-103(A). The Illinois court's holding "assumed that 'privilege' referred only to the law of evidence." Rotunda, The Lawyer's Duty to Report Another Lawyer's Unethical Violations in the Wake of Himmel, 1988 Univ. Ill. L.R. 977, 987 (1988). Disciplinary Rule-4-101 determines the parameters of the attorney-client privilege which we believe applies to the duty to report under DR 1-103.
Privileged communications are "confidences and secrets that are required to be preserved by DR 4-101." Id. at 987, citing, ABA Comm. on Ethics and Professional Responsibility, Formal Op. 341 (1975). Both "confidences" and "secrets" are defined in DR 4-101(A). A "confidence" is information protected by the attorney-client privilege under the applicable law. Ohio Revised Code §2317.02 prohibits an attorney from testifying regarding a communication made to the attorney by his or her client in that relation or advice the attorney gives the client unless the client expressly consents. A "secret" refers to other information gained in the professional relationship that the client requests be held inviolate. Code of Professional Responsibility, DR 4-101(A).
Therefore, a lawyer does not have a duty to report the client's former attorney if the information was gained in the professional relationship and the client requested the information be held inviolate. If a lawyer determines that he or she has a duty to report unprivileged knowledge of another lawyer's misconduct, a failure to report within a reasonable time would violate DR 1-103. A lawyer should not aggravate his or her violation of DR 1-103 by continuing to fail to report.
In conclusion, it is our opinion that a lawyer does have a duty to report unprivileged knowledge of another lawyer's misconduct. Privileged communications are defined in the Ohio Rev. Code §2317.02 and DR 4-101(A). A lawyer is required to keep secret information gained in a professional relationship that the client requests be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client. A lawyer is not required to report privileged information of another lawyer's misconduct. A lawyer may, however, reveal a client's secrets or confidences if the client consents under DR 4-101(C).
This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Professional Responsibility.