I know a colleague delayed filing final judgments in several divorce cases, sometimes for well over a year past the ninety-day waiting period. Do I have to report that lawyer to the bar under Rule 8.3?
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This page answers the general question as of 2006. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The inquiring attorneys asked whether they had to report another attorney who failed to file final judgments in divorce cases promptly after the ninety-day waiting period expired. Of thirteen divorce cases that reached final hearing, the attorney filed final judgments immediately in five, within four months in four more, and with delays of 5.5, 7, 22, and 35 months in the remaining four. The inquiring attorneys observed no signs of an underlying personal or family crisis, substance abuse, or mental health problems, and the attorney maintained only a small volume of family law matters relative to total caseload.
The panel quoted Rule 8.3(a), which requires reporting a lawyer's violation that raises a substantial question about that lawyer's honesty, trustworthiness, or fitness, and Rule 8.4's definition of misconduct. It noted the inquiring attorneys believed the delays violated Rule 1.3 (Diligence) and Rule 1.4 (Communication), but framed the real question as whether those violations were serious enough to trigger mandatory reporting. Quoting the Comment to Rule 8.3, the panel reiterated that the reporting duty is limited to offenses "a self-regulating profession must vigorously endeavor to prevent," requiring a measure of judgment about the seriousness of the offense, not the quantum of evidence. The panel compared the facts to two of its own prior opinions where reporting was required, Ethics Advisory Panel Op. 95-10 (keeping proceeds from an estate sale) and Ethics Advisory Panel Opinion 92-1 (embezzlement of client funds, affirmed at In re Ethics Advisory Panel Op. 92-1, 627 A.2d 317 (R.I. 1993)), both involving deliberate abuse of trust, dishonesty, and elements of criminality. Finding the delayed-filing facts here lacked the "requisite degree of odiousness" found in those cases (quoting a Connecticut ethics opinion), and finding no signs of substance abuse, mental health problems, or personal crisis, the panel concluded the delays did not, in and of themselves, create a Rule 8.3(a) reporting obligation.
In practice
The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, a lawyer's delay in filing final judgments after a divorce case's waiting period, without evidence of deliberate dishonesty, abuse of trust, or criminality comparable to embezzlement or misappropriation, does not by itself raise the "substantial question" about honesty, trustworthiness, or fitness that Rule 8.3(a) requires before another lawyer with knowledge of the conduct must report it.
Common questions
Q: Does every violation of the Rules of Professional Conduct that I observe in another lawyer trigger a duty to report under Rule 8.3?
A: No. Per this opinion and the Comment to Rule 8.3 it quotes, the reporting duty is limited to offenses serious enough that a self-regulating profession must vigorously endeavor to prevent them, requiring judgment about the seriousness of the conduct.
Q: What distinguished this case from the panel's prior opinions requiring a report?
A: The panel contrasted the delayed-filing facts here with Ethics Advisory Panel Op. 95-10 and Ethics Advisory Panel Opinion 92-1, both involving deliberate abuse of trust, dishonesty, and elements of criminality (keeping estate-sale proceeds and embezzling client funds), finding this case lacked comparable odiousness.
Q: Do signs like substance abuse or a personal crisis matter to the reporting analysis?
A: The panel noted their absence here as part of what made the conduct less serious; it did not treat their presence as automatically requiring a report, but their absence supported the conclusion that reporting was not mandatory on these facts.
Q: Which rules did the inquiring attorneys believe the other lawyer violated?
A: The inquiring attorneys believed the attorney had violated Rule 1.3 (Diligence) and Rule 1.4 (Communication) by the delayed filings; the panel's opinion addressed whether those violations, if they occurred, triggered the Rule 8.3(a) reporting duty, not whether they occurred.
Background and rules framework
The opinion applies Rule 8.3(a) (Reporting Professional Misconduct), quoted in full, which requires a lawyer with knowledge of another lawyer's violation raising a substantial question about honesty, trustworthiness, or fitness to inform the appropriate professional authority, subject to Rule 8.3(b)'s exception for Rule 1.6-protected information. It also quotes Rule 8.4 (Misconduct) and the Comment to Rule 8.3 explaining that the reporting duty is limited to offenses a self-regulating profession must vigorously endeavor to prevent.
Citations and references
Rules of Professional Conduct:
- MR 8.3(a), (b) (Reporting Professional Misconduct) / RI Rule 8.3(a), (b)
- MR 8.4(a), (b), (c) (Misconduct) / RI Rule 8.4(a), (b), (c)
- MR 1.3 (Diligence) / RI Rule 1.3
- MR 1.4 (Communication) / RI Rule 1.4
Cases:
- In re Ethics Advisory Panel Op. 92-1, 627 A.2d 317 (R.I. 1993), affirming the Panel's opinion that Rule 1.6 barred disclosure of predecessor counsel's embezzlement absent client consent, while confirming a reporting obligation exists absent a confidentiality bar
Other opinions cited:
- Rhode Island Supreme Court Ethics Advisory Panel Op. 95-10: obligation to report an attorney who kept proceeds from an estate sale
- Rhode Island Supreme Court Ethics Advisory Panel Opinion 92-1: successor counsel barred by Rule 1.6 from reporting predecessor's embezzlement absent client consent
- Connecticut Bar Association Committee on Professional Ethics Informal Op. 94-33 (1994): no duty to report a prohibited ex parte communication with a judge
See also
- State Bar of Arizona Op. 98-02: Reporting Misconduct, Ineffective Assistance of Counsel, Criminal Representation
- ABA Formal Op. 04-433: Reporting Misconduct of a Non-Practicing Lawyer
- Alabama State Bar Op. 1992-09: Duty to Report Judge's Conduct
Source
- Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
- Original PDF: https://www.courts.ri.gov/Opinions/EAP%202006-04.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Final
Rhode Island Supreme Court Ethics Advisory Panel
Opinion No. 2006-04 Request No. 921
Issued October 12, 2006
FACTS:
The inquiring attorneys ask whether they have an obligation to report another
attorney (the attorney) who failed to file final judgments in divorce cases immediately after
the expiration of the ninety-day waiting period. The attorney maintained a small volume
of family law matters relative to his/her total caseload. There were thirteen divorce cases
that proceeded to final hearing. The attorney immediately filed final judgments after the
expiration of the ninety-day waiting period in five of those cases. Of the remaining eight
cases, four were finalized within four months of the final hearing. The four remaining
cases had delays of 5.5 months, 7 months, 22 months, and 35 months. The inquiring
attorneys state that the attorney does not appear to have an underlying personal or family
crisis; they observed no signs of substance abuse or mental health problems.
ISSUE PRESENTED:
The inquiring attorneys ask whether they have an obligation under Rule 8.3(a) to
report an attorney for possible violations of Rule 1.3 "Diligence" and Rule 1.4
"Communications" because the attorney failed to file final judgments after the ninety-day
waiting period following decisions-pending-entry in divorce matters.
OPINION:
An attorney's failure to file final judgments in divorce matters after the ninety-day
waiting period, in and of itself, does not create an ethical obligation to report for the
inquiring attorneys having knowledge of it.
REASONING:
Rule 8.3 entitled "Reporting Professional Misconduct" states in pertinent part:
(a) A lawyer having knowledge that another lawyer has committed
a violation of the Rules of Professional Conduct that raises a
substantial question as to that lawyer's honesty, trustworthiness
or fitness as a lawyer in other respects, shall inform the
appropriate professional authority.
***
(b) This rule does not require disclosure of information otherwise
protected by Rule 1.6.
Final Op. 2006-04
Page 2
Rule 8.4 entitled "Misconduct" provides in pertinent part:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct,
knowingly assist or induce another to do so, or do so through
the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer's
honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit and
misrepresentation;
***
The inquiring attorneys believe that the attorney has violated Rule 1.3 "Diligence"
and Rule 1.4 "Communication." The question is whether these violations rise to the level
of seriousness that triggers mandatory reporting.
The question of just how serious an offense must be before lawyers are required to
report it has not been well defined. Conn. Bar Assoc. Comm. on Prof. Ethics Informal Op.
94-33 (1994). This Panel has taken the position in the past that an evaluation about
whether a violation of the Rules raises a substantial question about an attorney's honesty,
trustworthiness, or fitness as a lawyer is to be made by the attorney who witnesses such
conduct, and not by the Panel. The Panel recognizes that those opinions, though correct,
were not particularly instructive in guiding attorneys toward deciding whether a rule
violation triggered mandatory reporting, and whether they would be at risk for being
disciplined if they failed to report it.
The Comment to Rule 8.3 provides some guidance:
If a lawyer were obliged to report every
violation of the Rules, the failure to report any
violation would itself be a professional offense. Such
a requirement existed in many jurisdictions but
proved to be unenforceable. This Rule limits the
reporting obligation to those offenses that a self-
regulating profession must vigorously endeavor to
prevent. A measure of judgment is, therefore,
required in complying with the provisions of this
Rule. The term "substantial" refers to the seriousness
of the possible offense and not the quantum of
evidence of which the lawyer is aware.
Professors Hazard and Hodes explain that "[a] substantial violation of the rules
alone is not enough; the violation must be of such a nature that the conduct raises a
"substantial" question about the fitness of the offending lawyer to carry out his
Final Op. 2006-04
Page 3
professional role." 2 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of
Lawyering, §8.3:201 at 945 (2 ed. 1996 Supp.)
The Panel believes that two prior opinions can assist in judging the relative
seriousness of the conduct in question in this inquiry. In Ethics Advisory Panel Op. 95-10,
the Panel advised that the inquiring attorney had an obligation to report another attorney
who had kept the proceeds from an estate sale. In Ethics Advisory Panel Opinion 92-1,
the facts of which are more fully set forth in In re Ethics Advisory Panel Op. 92-1, 627
A.2d 317 (R.I. 1993), the Panel advised successor counsel that Rule 1.6 prohibited
him/her from reporting predecessor counsel's embezzlement of client funds where the
client would not consent to the disclosure. The Supreme Court affirmed the Panel's
opinion, and also stated, "Thus, absent a confidentiality issue, it is clear that the inquiring
attorney would be under an ethical obligation to report the embezzlement and indeed
would be subject to discipline if the inquiring attorney failed to report the embezzlement."
Id. at 321.
In each of these instances, there was deliberate abuse of trust and abuse of the
attorney's position for the attorney's own gain. There were deliberate acts of dishonesty,
and elements of criminality. Such serious breaches of conduct by lawyers are offenses that
"a self-regulating profession must endeavor to prevent." Comment to Rule 8.3(a).
When compared to the facts in Op. 95-10 and in In re Ethics Advisory Panel
Opinion, the facts as presented in the instant inquiry "do not seem to contain the requisite
degree of odiousness." Conn. Bar Assoc. Comm. On Prof. Ethics, Informal Op. 94-33
(1994) (no duty to report attorney's ex parte communication with judge prohibited by Rule
3.5 which caused the judge to make changes to opinion.) In addition, there are no facts
presented indicating signs of substance abuse, mental health problems, or underlying
personal or family crises. The Panel therefore concludes that the attorney's failure to file
final judgments in divorce matters after the ninety-day waiting period, in and of itself,
does not create an ethical obligation to report for the inquiring attorneys having knowledge
of it.
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