Opposing counsel's secretary notarized affidavits after the affiants had already signed and left, and he admitted this to the trial justice, who let him fix it and ruled without relying on the affidavits. Do I have to report opposing counsel to disciplinary authorities?

Plain-English summary

An attorney asked the panel about the proper course of conduct after learning, while deposing a purported affiant, that six affidavits opposing counsel had filed in support of a preliminary injunction application had been signed by each affiant at one location and notarized after the fact at opposing counsel's law office. Opposing counsel initially said he was unsure whether the affidavits were properly notarized, then confirmed in writing that they were not. The inquiring attorney raised these facts at the injunction hearing, where opposing counsel confirmed the improper notarization to the trial justice and explained he had instructed his secretary to notarize the affidavits after the fact because of litigation pressures, while representing that their contents were entirely accurate and that he had no intent to falsify evidence. The trial justice allowed opposing counsel to substitute properly notarized documents and ruled on the injunction application without referencing the affidavits. The inquiring attorney believed opposing counsel's conduct might violate Rule 3.3 (candor toward the tribunal), Rule 3.4 (fairness to opposing party and counsel), Rule 4.1 (truthfulness in statements), and Rule 5.3 (responsibilities regarding non-lawyer associates), and asked whether Rule 8.3 obligated him to report it.

The panel quoted Rule 8.3(a), requiring a lawyer with knowledge that another lawyer has committed a violation raising a substantial question as to that lawyer's honesty, trustworthiness, or fitness to inform the appropriate professional authority, and the rule's comment limiting the reporting obligation to offenses a self-regulating profession must vigorously prevent, with "substantial" referring to the seriousness of the possible offense rather than the quantum of evidence. Citing Professor Hazard's treatise, the panel noted society does not impose a general duty to report crime, that an enforced "snitch rule" could weaken the profession by breeding mutual suspicion, and that merely technical violations would not qualify for mandatory reporting, whereas destruction of subpoenaed evidence, suborning perjury, or self-dealing with trust funds would. The panel discussed In re Himmel, 533 N.E.2d 790 (Ill. 1989), in which the Illinois Supreme Court suspended an attorney's license for failing to report another lawyer's fraudulent conversion of client funds under the reporting rule's predecessor, DR 1-103(a), stressing that the failure to report had frustrated a disciplinary investigation and was tantamount to interference with the administration of justice. The panel stated it cannot rule on the propriety of conduct by an attorney who has not sought its advice, and held that if the inquiring attorney reasonably believes opposing counsel's conduct rose to the requisite level of seriousness, Rule 8.3 obligates him to report it; if he does not reasonably believe that, he is under no obligation to report it, though attorneys may report lesser infractions as they see fit.

Currency note

This opinion was issued in January 1990, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 8.3 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Am I required to report every rule violation I learn about from opposing counsel?

A: No. The opinion states Rule 8.3 limits the mandatory reporting obligation to violations raising a substantial question about the other lawyer's honesty, trustworthiness, or fitness to practice; attorneys may report lesser infractions as they see fit but are not required to.

Q: What does "substantial" mean under Rule 8.3?

A: According to the rule's comment as quoted in the opinion, "substantial" refers to the seriousness of the possible offense, not the quantum of evidence the lawyer is aware of.

Q: Who decides whether opposing counsel's conduct is serious enough to trigger my Rule 8.3 duty?

A: The panel framed the trigger as the inquiring attorney's own reasonable belief: if he reasonably believes the conduct rose to the requisite level of seriousness, he must report it; if he does not reasonably believe that, he has no obligation to report.

Q: What kinds of conduct did the opinion identify as clearly reportable versus not reportable?

A: Citing Professor Hazard, the opinion states merely technical violations would not qualify for mandatory reporting, whereas destruction of evidence under subpoena, suborning perjury, or self-dealing with trust funds would.

Background and rules framework

The opinion applies Rule 8.3(a) of the Rhode Island Rules of Professional Conduct, as adopted effective November 15, 1988, requiring a lawyer with knowledge of another lawyer's substantial rule violation to report it, and discusses candor and fairness provisions the inquiring attorney believed opposing counsel may have violated (Rule 3.3, Rule 3.4, Rule 4.1, and Rule 5.3), to an attorney's inquiry about whether opposing counsel's after-the-fact affidavit notarization triggered a mandatory reporting duty.

Citations and references

Rules of Professional Conduct:

• MR 8.3 (reporting professional misconduct)
• MR 3.3 (candor toward the tribunal)
• MR 3.4 (fairness to opposing party and counsel)
• MR 4.1 (truthfulness in statements to others)
• MR 5.3 (responsibilities regarding nonlawyer assistants)
• RI RPC 8.3(a), as adopted November 15, 1988

Statutes:

• None cited.

Cases:

• In re Himmel, 533 N.E.2d 790, 125 Ill.2d 531, 127 Ill. Dec. 708 (Ill. 1989), cited for suspension of an attorney's license for failing to report another lawyer's fraudulent conversion of client funds under the reporting rule's predecessor, DR 1-103(a).

Other opinions cited:

• None cited.

See also

• ABA Formal Opinion 04-433: Obligation of a Lawyer to Report Professional Misconduct by a Lawyer Not Engaged in the Practice of Law
• ABA Formal Opinion 03-431: Lawyer's Duty to Report Rule Violations by Another Lawyer Who May Suffer from Disability or Impairment

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%2090-04.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

DIGEST OF ETHICS ADVISORY PANEL
OPINION 90-4, REQUEST #75
Issued January 18, 1990

An attorney seeks Panel advice as to the proper course of conduct in the situation he describes.

The attorney advises the Panel that six affidavits in support of an application for preliminary injunction relief were filed by opposing counsel in connection with pending litigation. The attorney states that upon deposing one of the purported affiants he learned that the affidavits had been signed by each affiant at one location and notarized after the fact at opposing counsel's law office. The attorney adds that initially opposing counsel told him that he was unsure whether the affidavits in question had been properly notarized or not, but that he subsequently confirmed in writing that the affidavits had not been properly notarized.

The inquiring attorney states that he brought these facts to the attention of the trial justice at a hearing on the application for a preliminary injunction. He states that opposing counsel confirmed to the trial justice that the affidavits had not in fact been properly notarized. The inquiring attorney adds that opposing counsel indicated that he had instructed his secretary to notarize the affidavits after the fact because of the pressures of litigation. Opposing counsel represented to the trial justice that the contents of the affidavits were entirely accurate and that he had no intent to falsify evidence.

The inquiring attorney states that the trial justice took corrective action by allowing opposing counsel to remove the improperly notarized documents and replace them with properly notarized ones. The trial justice then ruled on the application for preliminary injunctive relief without referencing the affidavits.

The inquiring attorney states that he feels opposing counsel's conduct with regard to the affidavits might constitute violations of Rule 3.3, "Candor towards the Tribunal," Rule 3.4, "Fairness to Opposing Party and Counsel," Rule 4.1, "Truthfulness in Statements," and Rule 5.3, "Responsibilities regarding Non-lawyer Associates." The attorney asks the Panel whether he has a duty under Rule 8.3 to report these possible violations.

Rule 8.3, entitled "Reporting Professional Misconduct" provides, 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.

The comment to this rule provides, in pertinent part:

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 . . . The term "substantial" refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware . . .

In his analysis of the scope of Rule 8.3 Professor Hazard notes that although the duty to report violations is an important aspect of the bar's self governance, "our society, unlike some others, does not impose a general duty to report crime, even serious crime." Professor Hazard goes on to note that "an enforced 'snitch rule' could weaken the profession . . . by breeding mutual suspicion." I G. Hazard The Law of Lawyering, 555-556. Explaining the scope of Rule 8.3, Professor Hazard notes that

merely technical violations . . . would not qualify [under the mandatory reporting provisions of Rule 8.3] whereas destruction of evidence under subpoena, suborning perjury or self-dealing with trust funds would. Id. at 556.

Rule 8.3 simply outlines the scope of mandatory reporting on one's fellow attorney. Attorneys may report lesser infractions to the appropriate authorities as they see fit.

The Illinois Supreme Court had occasion to review the application of this reporting requirement as it was formerly embodied in DR 1-103(a) in In re Himmel, 533 N.E.2d 790, 125 Ill.2d 531, 127 Ill. Dec. 708 (1989). The court found that Attorney Himmel's failure to report unprivileged information concerning another attorney's fraudulent conversion of client funds warranted suspension of his license. In so holding the court stressed that Himmel's failure to report his brother attorney's misconduct had effectively frustrated any disciplinary authority investigation and was thus tantamount to interference with the administration of justice.

The Panel cannot, of course, rule on propriety of conduct of an attorney who has not sought its advice. If the inquiring attorney reasonably believes the conduct of the opposing counsel rose to the level of seriousness outlined above, Rule 8.3 obligates the inquiring attorney to report it to the disciplinary authorities. If, however, the inquiring attorney does not reasonably believe that the conduct rose to the requisite level of seriousness, then the Panel takes the position that he is under no obligation to report it to the disciplinary authorities.

Ethics Advisory Panel advice is protective in nature. There is no requirement that an attorney abide by a Panel opinion, but if he or she does, he or she is fully protected from any charge of impropriety.