OHBPC April 8, 2016

Must a lawyer report a former lawyer's misconduct learned while suing that lawyer for a client?

Short answer: The opinion concluded that under Prof. Cond. R. 8.3 a lawyer must report another lawyer's misconduct when the lawyer has unprivileged knowledge of a violation that raises a question about the other lawyer's honesty, trustworthiness, or fitness, and must report it to the Office of Disciplinary Counsel or a certified grievance committee (not merely a tribunal). The duty is not removed because the other lawyer denies wrongdoing or a settlement included a confidentiality clause. But the lawyer may not reveal information protected as privileged or confidential under Prof. Cond. R. 1.6 without client consent, so where the knowledge is privileged the reporting duty is not triggered, though the lawyer may encourage the client to consent.

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This page answers the general question as of 2016. Ezel answers yours: whether it's allowed on your facts, under the current Ohio Rules of Professional Conduct, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.

View original ethics opinion (PDF)

Plain-English summary

The Board addressed a lawyer who represented a client against the client's prior lawyer to recover money the prior lawyer allegedly misappropriated; the matter settled, curing the loss but without an admission of liability and subject to a confidentiality provision. The question was whether the lawyer must report the prior lawyer under Prof. Cond. R. 8.3, and whether what the lawyer learned was privileged.

On the duty, the Board explained that Rule 8.3 is not a blanket requirement to report all misconduct, but applies when the lawyer has unprivileged actual knowledge (more than mere suspicion) of a violation that raises a question about another lawyer's honesty, trustworthiness, or fitness. The report must go to a disciplinary authority empowered to act, in Ohio the Office of Disciplinary Counsel or a bar association's certified grievance committee; reporting to a tribunal does not satisfy the duty (though other rules, such as Rule 3.3, may separately require notice to a tribunal). The Board stressed that the duty is not removed because the reported lawyer denies misconduct or because a settlement is confidential, and recommended erring on the side of reporting in close cases.

On privilege, the Board pointed to Prof. Cond. R. 1.6: a lawyer may not reveal information relating to the representation, including privileged information, without client consent, though Rule 1.6(b) permits (but does not require) certain disclosures. So the Rule 8.3 duty is conditioned on the knowledge being unprivileged. Where the information is privileged, the lawyer need not report but may encourage the client to consent to disclosure if doing so would not substantially prejudice the client. If the lawyer has unprivileged knowledge and does not report, that failure is itself a Rule 8.3 violation. The Board withdrew Advisory Opinion 1990-1.

In practice

The opinion holds that, under the Ohio rules as they stood at the time, the trigger for the Rule 8.3 reporting duty is unprivileged actual knowledge of a serious violation, reported to the Office of Disciplinary Counsel or a certified grievance committee. Per the opinion, a confidentiality clause in a settlement and the reported lawyer's denial do not excuse the duty, but Rule 1.6 prevents disclosure of privileged or confidential information without client consent, so where the knowledge is privileged the duty is not triggered and the lawyer may seek the client's consent.

Common questions

Q: Does a lawyer have to report a former lawyer's misappropriation learned while suing that lawyer?

A: The opinion concluded yes, if the knowledge is unprivileged and the violation raises a question about the other lawyer's honesty, trustworthiness, or fitness under Prof. Cond. R. 8.3.

Q: Does a confidentiality clause in the settlement cancel the duty to report?

A: The opinion concluded no; neither a confidentiality provision nor the other lawyer's denial of liability removes the Rule 8.3 reporting duty.

Q: Where must the report be made?

A: The opinion concluded the report must go to the Office of Disciplinary Counsel or a bar association's certified grievance committee; reporting only to a tribunal does not satisfy Rule 8.3.

Q: What if the information is privileged?

A: The opinion concluded the lawyer is not required to report privileged information under Rule 1.6, but may encourage the client to consent to disclosure if it would not substantially prejudice the client.

Background and rules framework

The opinion interprets Ohio Prof. Cond. R. 8.3 (reporting professional misconduct) and 1.6 (confidentiality of information) (Model Rules 8.3, 1.6), reading the reporting duty as conditioned on unprivileged knowledge and bounded by the duty of confidentiality.

Citations and references

Rules of Professional Conduct:

Ohio Prof. Cond. R. 8.3 (reporting professional misconduct) (Model Rule 8.3)
Ohio Prof. Cond. R. 1.6 (confidentiality of information) (Model Rule 1.6)

Other opinions cited:

Ohio BPC Op. 1990-1 (withdrawn by this opinion): duty to report misconduct
Ohio BPC Op. 2007-1: reporting and candor to a tribunal
D.C. Bar Op. 246; N.Y. State Bar Op. 635: actual knowledge for reporting

Source

Landing page: https://ohioadvop.org/advisory-opinion-index/
Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op_16-002.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

BOARD OF PROFESSIONAL CONDUCT
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.supremecourt.ohio.gov

PAUL M. DE MARCO RICHARD A. DOVE
CHAIR DIRECTOR
WILLIAM J. NOVAK D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL

                                                                                   HEIDI WAGNER DORN
                                                                                         COUNSEL




                                     OPINION 2016-2
                                    Issued April 8, 2016
                             Withdraws Advisory Opinion 1990-1



                  Duty to Report Unprivileged Knowledge of Misconduct

SYLLABUS: A lawyer is required under Prof.Cond.R. 8.3 to report any unprivileged
knowledge of a violation of the Rules of Professional Conduct to the Office of Disciplinary
Counsel or a bar association's certified grievance committee. A lawyer shall not reveal
privileged information relating to the representation of a client, including information
protected by the attorney-client privilege. Prof.Cond.R. 1.6(a). A lawyer may reveal
information relating to the representation of a client if the client gives informed consent
under Prof.Cond.R. 1.6.

APPLICABLE RULES: Prof.Cond.R. 1.6, 8.3

QUESTIONS PRESENTED:

   1).         Whether a lawyer who represented a client against the client’s prior lawyer
               has an ethical obligation under Prof.Cond.R. 8.3 to report the lawyer to the
               appropriate disciplinary authority.

   2).         Whether the information acquired from the client regarding their prior
               lawyer's conduct is privileged, thereby eliminating any duty to report?

OPINION: The requester seeks an advisory opinion regarding a lawyer's duty to report
another lawyer's misconduct under the following facts. The lawyer represents a client
against the client's prior lawyer to recover certain monies the lawyer allegedly
Op. 2016-2 2

misappropriated from the client. A settlement is reached, curing the delinquencies but
without an admission of liability by the prior lawyer. The settlement contained a
confidentiality provision.

Question 1:

   The Rules of Professional Conduct do not contain a strict reporting requirement

that a lawyer report all misconduct of which the lawyer has unprivileged knowledge.
Rather, Prof.Cond.R. 8.3 requires a lawyer to report misconduct only when 1) the lawyer
has unprivileged knowledge, and 2) it raises a question as to another lawyer’s “honesty,
trustworthiness, or fitness as a lawyer in other respects.” Prof.Cond.R. 8.3 also requires
lawyers to report their own misconduct. If a lawyer has reservations as to whether to
report the misconduct, the Board recommends the lawyer err on the side of reporting.

   Lawyers are required to report misconduct to a disciplinary authority empowered

to investigate or act upon such violation. Prof.Cond.R. 8.3(a). In Ohio, the proper
disciplinary authority is the Office of Disciplinary Counsel or a bar association's certified
grievance committee. The reporting duty is not fulfilled by reporting a lawyer’s
misconduct to a tribunal, since a tribunal does not have the authority to investigate or act
upon reports of lawyer misconduct. However, in certain circumstances a lawyer may be
required under another Rule of Professional Conduct to report the misconduct to the
tribunal. See, Prof.Cond.R. 3.3, Adv. Op. 2007-1.

   Additionally, in order to invoke the reporting requirement, a lawyer must have

actual knowledge that another lawyer has violated a Rule of Professional Conduct. This
requires more than a “mere suspicion” that misconduct has occurred. The term “‘knows’
denotes actual knowledge of the fact in question. A person’s knowledge may be inferred
from circumstances.” Prof.Cond.R. 1.0(g); Adv. Op. 2007-01. See DC Bar Op. 246, citing
N.Y. State Bar Opinion No. 635. Furthermore, a lawyer's duty to report is not removed
when the lawyer being reported does not admit liability or even denies any misconduct.

    Therefore, a lawyer who represents a client against the client’s prior lawyer has

an ethical obligation under Prof.Cond.R. 8.3 to report the prior lawyer’s misconduct to
the appropriate disciplinary authority if the lawyer has unprivileged knowledge and
the violation raises questions as to the other lawyer’s “honesty, trustworthiness, or
fitness as a lawyer in other respects.”
Op. 2016-2 3

Question 2:

   A lawyer is not required to report misconduct where it would involve disclosure

of privileged information. Prof.Cond.R. 8.3, cmt. [2]. Rather, the lawyer should use his
or her professional judgment to determine whether the privileged information should be
disclosed to report the misconduct. If the lawyer determines that the information should
be disclosed, the lawyer should encourage the client to consent to such a disclosure,
where it would not prejudice the client’s interests. Prof.Cond.R. 8.3, cmt. [2].

   Prof.Cond.R. 1.6 should be consulted when determining whether information is

privileged or unprivileged. Under Prof.Cond.R. 1.6(a), a lawyer is prohibited from
revealing any information related to the representation, including information protected
by the attorney-client privilege, without client consent. However, Prof.Cond.R. 1.6(b)
allows, but does not require, a lawyer to disclose confidential client information that may
be protected by the attorney-client privilege to accomplish the limited purposes
contained in Prof.Cond.R. 1.6(b)(1)-(b)(6). See, Prof.Cond.R. 1.6, cmt. [17].

    Consequently, a lawyer’s duty under Prof.Cond.R. 8.3(a) to report the misconduct

of a client’s prior lawyer is conditioned on the possession by the lawyer of unprivileged
knowledge. This requires the use of professional judgment to determine whether the
information is privileged or unprivileged. If the information is unprivileged, the duty to
report misconduct under Prof.Cond.R. 8.3 is triggered. However, if the information is
privileged, the lawyer is not required to report under Prof.Cond.R. 8.3, but may
encourage the client to consent to the disclosure of the privileged information if it would
not substantially prejudice the client’s interests. If a lawyer determines that he or she has
a duty to report unprivileged knowledge of another lawyer’s misconduct, failure to
report is itself a violation of Prof.Cond.R. 8.3.

CONCLUSION:

   A lawyer has a duty to report unprivileged knowledge of another lawyer's

misconduct under Prof.Cond.R. 8.3. A lawyer is required to keep information related to
the representation of a client confidential, including information protected by the
attorney-client privilege under applicable law. A lawyer is not required to report
privileged information of another lawyer's misconduct. A lawyer may, however, reveal
information related to the misconduct of a lawyer if the client gives his or her informed
consent to the disclosure under Prof.Cond.R. 1.6.
Op. 2016-2 4

Advisory Opinions of the Board of Professional Conduct are informal,
nonbinding opinions in response to prospective or hypothetical questions
regarding the application of the Supreme Court Rules for the Government of
the Bar of Ohio, the Supreme Court Rules for the Government of the
Judiciary, the Ohio Rules of Professional Conduct, the Ohio Code of Judicial
Conduct, and the Lawyer’s Oath of Office.
Op. 2016-2 5

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