When does a lawyer have to report another lawyer's possible conflict misconduct, and how does client confidentiality affect reporting?

Short answer The committee left the knowledge determination to the requesting lawyer but said a knowing continuation of representation despite conflict violations raised a substantial question under Rule 8.3. It also discussed Rule 1.6(c) when reporting could disadvantage the client.
Bar
SBAND
Issued
May 5, 1993

Apply this to your situation

This page answers the general question as of 1993. Ask about yours and see what the current North Dakota Rules of Professional Conduct say for your facts, with citations.

How much weight this carries: Under North Dakota Rule for Lawyer Discipline 1.2(B), a lawyer who acts in good faith and in reasonable reliance on a written opinion of the association's ethics committee is not subject to sanction for the conduct the opinion addresses. Source.
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 requesting lawyer described possible conflicts in another lawyer's representation and asked whether they had to be reported. The committee said Rule 8.3 required actual knowledge of a violation raising a substantial question about the other lawyer's honesty, trustworthiness, or fitness. Actual knowledge could be inferred from the circumstances, and seriousness of the possible violation, rather than the amount of evidence, controlled the “substantial question” inquiry.

The committee declined to decide for the requesting lawyer whether the necessary knowledge existed. It did say that continuing a representation with knowledge of conflict-rule violations would raise a substantial question about honesty, trustworthiness, and fitness.

It also said the lawyer should consider whether reporting would disadvantage the client. In that event, Rule 1.6(c) might protect the information until disclosure would no longer prejudice the client or the client consented. The committee noted that a client's own report would not discharge the lawyer's separate reporting obligation.

Currency note

This opinion was issued in 1993, before North Dakota's 2006 revisions to its Rules of Professional Conduct. The later North Dakota Opinion 06-05 states: “On August 1, 2006, material changes to N.D.R. Prof. Conduct 1.10(a) will take effect.” 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, deadline, or requirement.

Common questions

Q: Did the committee decide that the requesting lawyer had actual knowledge?

A: No. It said the requesting lawyer had to exercise independent judgment on that question.

Q: What kind of conflict misconduct did the committee consider serious under Rule 8.3?

A: It identified knowing continuation of representation despite conflict-rule violations as raising a substantial question about the other lawyer's honesty, trustworthiness, and fitness.

Q: Does a client's own report satisfy the lawyer's Rule 8.3 obligation?

A: No. The committee said the client's report would not relieve the lawyer's obligation to report.

Background and rules framework

The opinion applies North Dakota Rule 8.3's knowledge and substantial-question standards. It discusses Rule 1.6(c) where disclosure could prejudice a client and mentions possible imputed disqualification under Rule 1.10.

Citations and references

Rules of Professional Conduct:

  • North Dakota Rule 8.3, reporting lawyer misconduct.
  • North Dakota Rule 1.6(c), client information.
  • North Dakota Rule 1.10, discussed in the possible disqualification.

Other opinions cited:

  • SBAND Ethics Committee Formal Opinion 42 (April 4, 1990), on actual knowledge and Rule 8.3.

See also

Source

Original opinion text

Full opinion text unavailable from the official source; see the linked source above for the complete text.

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