Can a bar grievance committee tell a Lawyers' Assistance Committee the name of a lawyer under investigation for a substance abuse problem without breaching its oath of secrecy?

Plain-English summary

The Board addressed a bar association's policy for disciplining a lawyer who is a substance abuser, asking whether grievance committee members would violate their oath of secrecy by disclosing the lawyer's name to a Lawyers' Assistance Committee (LAC) that would address the substance abuse affecting the lawyer's practice. The Board quoted Gov. Bar R. V(43), under which proceedings and documents relating to complaint investigations are private (subject to limited exceptions) and committee members must swear to protect that privacy, explaining that the rule keeps investigations confidential until probable cause is established and protects a lawyer's reputation while encouraging complaints and witness cooperation.

The Board examined when grievance committee members may share confidential information outside the committee, discussing two Ohio Supreme Court cases linking grievance investigations to grand jury secrecy: In re Klausmeyer, where committee members had to testify before a grand jury whose own secrecy obligations preserved confidentiality, and In re Petition of the Grievance Committee of the Toledo Bar Association, where the Court relieved grand jurors of their oath of secrecy to cooperate with a grievance investigation. It reasoned that LAC members similarly assume an oath of confidentiality and, being privy to information about substance abuse and possible criminal violations, have agreed not to divulge it to anyone, including law enforcement.

The Board noted that in June 1987 the Ohio Supreme Court amended the Code to add DR 1-103(C), making any knowledge obtained by a member of a bar association committee or subcommittee designed to assist lawyers with substance abuse problems privileged for all purposes under DR 1-103, where obtained while performing those duties. Given the guidelines LAC operates under, the Board concluded it is not a violation of the grievance committee's oath of secrecy to divulge a lawyer's name to LAC. It limited the opinion to investigations where there is evidence of a substance abuse problem and a recognized LAC can offer assistance, and stated that the grievance committee and the local LAC have an agreement in writing regarding the preservation of secrecy and confidentiality.

Currency note

The Board flags this opinion as not current in light of subsequent rule amendments to DR 1-103 effective September 1, 1995, and to Gov. Bar R. V. It issued in 1990 under Ohio's former Code of Professional Responsibility (superseded by the Ohio Rules of Professional Conduct effective February 1, 2007). Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct and Gov. Bar R. V before relying on any specific rule mentioned here.

Common questions

Q: Can a grievance committee disclose a lawyer's name to a Lawyers' Assistance Committee?

A: Under this opinion, yes. The Board concluded that doing so does not violate the committee's oath of secrecy where there is evidence of a substance abuse problem and a recognized LAC can help.

Q: What makes the disclosure permissible despite the secrecy oath?

A: The Board pointed to DR 1-103(C), which makes a substance-abuse assistance committee member's knowledge privileged for all purposes under DR 1-103, and to LAC members' own confidentiality obligations.

Q: What did the Board say the committees should put in place?

A: The Board stated the grievance committee and the local LAC have a written agreement regarding the preservation of secrecy and confidentiality.

Background and rules framework

The opinion interprets Gov. Bar R. V(43) (privacy of disciplinary investigations and the committee members' secrecy oath) together with DR 1-103(C) of the former Code of Professional Responsibility (privilege for knowledge obtained by substance-abuse assistance committee members).

Citations and references

Rules of Professional Responsibility (Ohio, former) and Governing Bar Rules:

• DR 1-103(C), privilege for knowledge obtained by a substance-abuse assistance committee member
• Gov. Bar R. V(43), privacy of disciplinary proceedings and the secrecy oath

Cases:

• In re Klausmeyer, 24 Ohio St. 2d 143 (1970), grievance committee secrecy oath and grand jury testimony
• In re Petition of the Grievance Committee of the Toledo Bar Association, 47 Ohio St. 3d 611 (1989), relieving grand jurors of secrecy to cooperate with a grievance investigation

See also

• Ohio BPC Op. 1990-001: Duty to Report Another Lawyer's Misconduct and the Privilege Exception
• Ohio BPC Op. 1986-001: Grievance Committee's Duty to Report Crime Discovered in an Investigation
• Ohio BPC Op. 1990-018: Amending a Formal Disciplinary Complaint Before Hearing

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-90-019.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 90-19
Issued August 17, 1990

[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 DR 1-103, eff. Sep. 1, 1995 and to Gov. Bar R. V.]

SYLLABUS: Members of a certified grievance committee, in the discharge of their disciplinary responsibilities, may share information about a lawyer with members of a recognized Lawyers' Assistance Committee without violating their oath of secrecy.

OPINION: Your bar association has adopted a policy for disciplining a lawyer who is a substance abuser. You inquire whether members of the grievance committee would violate their oath of secrecy in disclosing the lawyer's name to the Lawyers' Assistance Committee (LAC) who in turn would address the substance abuse problem affecting his or her practice. The Ohio State Bar Association originally established LAC and now organized subcommittees function in many of Ohio's counties. The purpose of LAC is to help lawyers and judges who have substance abuse problems, and to educate the profession about dependency on alcohol and other drugs.

Governing Bar Rule V (43) provides the following:

(a) All proceedings and documents relating to review and investigation of complaints made under these Rules shall be private except: (i) where respondent shall request in writing that they be public; or (ii) where respondent by voluntary act waives privacy of the proceedings.

(c) All members of the Board, or any certified grievance committee, shall be required, prior to taking office, to swear or affirm that they will abide by these rules and further that they will protect the privacy of the proceedings and documents relating thereto.

This rule serves the important purpose of keeping the complaint and its investigation private until probable cause that a violation occurred has been established. It protects a lawyer's reputation during the period of investigation. The confidential aspect of the investigation also encourages the filing of complaints, the cooperation of witnesses and permits the disciplinary agency to complete an investigation outside the glare of public scrutiny or publication of the existence of an investigation.

Are there any circumstances in which members of a grievance committee are permitted to share confidential information with someone outside the committee? The Ohio Supreme Court has decided two cases that discuss the oath of secrecy. In the case of In re Klausmeyer (1970), 24 Ohio St. 2d 143, the court confronted the extent of the oath of secrecy when it decided a habeas corpus action brought by two members of the Cincinnati Bar Association's Grievance Committee. The lawyers were held in contempt for refusal to answer questions posed by a grand jury concerning information and names arising from one of the committee's investigations. Their refusal to answer the grand jury's subpoena was based on Rule XVIII (20) of the Rules of Practice of the Ohio Supreme Court. This rule of practice mirrors Gov. Bar R. V (43).

Because the proceedings of a grand jury in Ohio are secret and may not be divulged, the Court found that the petitioners had to appear and give testimony in response to the subpoena. However, because this same grand jury by law must keep all information it gathers private, the testimony of the committee members could not be considered a violation of their obligations.

In a 1989 case, In re Petition of the Grievance Committee of the Toledo Bar Association (1989), 47 Ohio St. 3d 611, the Court again underscored this link between a bar grievance committee investigation and information gathered by a grand jury. In this case the grievance committee filed an original action with the Court and obtained an order permitting members of the Lucas County grand jury to cooperate with a pending investigation being conducted by the grievance committee. The Court concluded that the relief was necessary for the bar to perform its investigatory function effectively. Therefore, the grand jury members were relieved of their oath of secrecy and allowed to cooperate in discussing information gained during the grand jury proceeding.

In a similar way members of the LAC assume an obligation and oath of confidentiality. Because Assistance Committee members are privy to information concerning substance abuse, drug possession and use and other violations of the criminal code, they have agreed not to divulge this information to anyone including law enforcement officials. Indeed the Ohio Supreme Court, in June of 1987, amended the Code of Professional Responsibility to provide protection for members of this committee. Disciplinary Rule 1-103 (C) now reads as follows:

Any knowledge obtained by a member of a committee or subcommittee of a bar association designed to assist lawyers with substance abuse problems shall be privileged for all purposes under DR 1-103, provided such knowledge was obtained while such member was performing duties as a member of such committee or subcommittee.

Accordingly, given the guidelines that LAC operates under, it is not a violation of the grievance committee's oath of secrecy to divulge the name of a lawyer to LAC. Our opinion is limited to those circumstances in which a lawyer is being investigated, there is evidence of a substance abuse problem and where a recognized LAC can offer assistance with this problem. We recommend the Grievance Committee and the local LAC have an agreement in writing regarding the preservation of secrecy and confidentiality.

This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Professional Responsibility.