Does a lawyer's partnership or fiduciary relationship with another lawyer reduce the duty to report that lawyer's misconduct, and does telling a prosecutor satisfy the duty?

Plain-English summary

A lawyer asked whether his fiduciary duty to a partner or former partner reduced his duty to inform the Bar or the court of that partner's unethical conduct or potential criminal conduct, and whether having already told the relevant solicitor about the conduct affected that duty.

The committee answered no to both. The duty to report is set by Rule 8.3, which requires members of the Bar to report a known violation that raises a substantial question as to another lawyer's honesty, trustworthiness, or fitness. Rule 8.4 sets the extent to which criminal activity is also a rules violation: a criminal act that reflects adversely on honesty, trustworthiness, or fitness, or that involves moral turpitude, is treated as a violation. The committee concluded that neither rule supports a lesser duty to report violations by a lawyer with whom the reporter has a professional or fiduciary relationship; concluding otherwise would let lawyers evade their obligations by entering an arrangement such as a partnership. So the relationship has no bearing on the duty under Rules 8.3 and 8.4.

The committee added several limitations. Under Rule 8.3(c), Rule 1.6 must be consulted where reporting would implicate confidential client information, such as where an attorney-client relationship exists between the reporting lawyer and the lawyer in question; absent client consent, certain violations may not be disclosed. Rule 8.3 reaches only "known," not "potential," violations. And because the inquiry appeared to arise from a partnership dissolution, the committee noted that reporting under Rule 8.3 is a serious step to be taken only for the reasons in the rule, not as a weapon in a dissolution dispute, citing Opinion 02-13. On the second question, the committee concluded that reporting to a solicitor does not satisfy Rule 8.3, which by its terms requires reporting to "the appropriate professional authority," and a solicitor is not such an authority.

In practice

Under this opinion, on the facts presented, a lawyer's professional or fiduciary tie to another lawyer does not lessen the Rule 8.3 duty to report a known violation that raises a substantial question of honesty, trustworthiness, or fitness, and the duty is owed to the appropriate professional authority, which the committee held is not a solicitor. The committee identified limits the reporting lawyer must observe: consult Rule 1.6 through Rule 8.3(c) where client confidences are implicated, report only "known" violations, and not use Rule 8.3 as leverage in a partnership dissolution.

Common questions

Q: Does being a partner of the offending lawyer reduce my duty to report misconduct?

A: No. The committee concluded the professional or fiduciary relationship has no bearing on the duty under Rules 8.3 and 8.4; a contrary rule would let lawyers evade their obligations by forming a partnership.

Q: Does telling the solicitor (prosecutor) about the conduct satisfy my reporting duty?

A: No. The committee concluded Rule 8.3 requires reporting to "the appropriate professional authority," and a solicitor is not that authority, so reporting to the solicitor does not meet the obligation.

Q: Are there limits on what I must report?

A: Yes. Per Rule 8.3(c), Rule 1.6 must be consulted where client confidences are implicated; Rule 8.3 covers only "known" violations, not "potential" ones; and the committee cautioned that reporting should not be used as a weapon in a partnership dissolution.

Background and rules framework

The opinion applies South Carolina Rule 8.3 (reporting professional misconduct), Rule 8.4 (defining when criminal conduct is a rules violation), and Rule 1.6 (confidentiality), each corresponding to its Model Rule counterpart. The analysis turns on whether a fiduciary or partnership relationship modifies the Rule 8.3 reporting obligation and on who counts as the "appropriate professional authority."

Citations and references

Rules of Professional Conduct:

• MR 8.3 / SC Rule 8.3 (reporting professional misconduct; report to the appropriate professional authority)
• MR 8.4 / SC Rule 8.4(b), (c) (criminal acts reflecting adversely on honesty, trustworthiness, or fitness)
• MR 1.6 / SC Rule 1.6 (confidentiality; consulted via Rule 8.3(c))

Other opinions cited:

• SC Ethics Advisory Opinion 02-13 (accusing another lawyer of misconduct is a serious matter not to be undertaken lightly)

See also

• SC Bar Ethics Op. 03-11: A prosecutor's duty to disclose an officer's false testimony
• SC Bar Ethics Op. 05-09: A deceased client's will and the duty of confidentiality

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-05-21/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 05-21

RULES 1.6, 8.3, and 8.4

Questions:
Does a lawyer’s fiduciary duty to his partner/former partner mitigate against his duty to:
Inform the Bar/Court of his partner’s/former partner’s unethical conduct and/or
His partner’s potential/actual criminal conduct?
Does the fact that the lawyer has informed the relevant solicitor of 1(b) have any bearing/affect on lawyer’s duty under number 1 above?

Summary:

1. No. The inquirer’s duty under the Rules of Professional Conduct with regard to reporting violations of the Rules by another member of the Bar is not affected by any professional or fiduciary relationship between the inquirer and the member in question.

2. No. The duty to report violations of the Rules of Professional Conduct is not satisfied by notifying a Solicitor.

Opinion:

1. The parameters of the duty to report violations of the Rules of Professional Conduct are set forth in Rule 8.3. Pursuant to Rule 8.3, members of the Bar are required to report any known violation that raises a substantial question as to the honesty, trustworthiness, or fitness as a lawyer of the attorney who committed the violation. Rule 8.3(a).

The extent to which criminal activity may also be characterized as a violation of the Rules of Professional Conduct is set forth in Rule 8.4. The Rule provides that a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, or that involves moral turpitude, is to be regarded as a violation of the Rules of Professional Conduct. Rule 8.4(b), (c).

Neither Rule 8.3 nor Rule 8.4 supports the proposition that there is a lesser duty to report known violations committed by another lawyer with whom the inquirer is or was in a professional or fiduciary relationship. To conclude otherwise would be to permit attorneys to evade or compromise their obligations under the Rules by entering into a voluntary arrangement such as a business partnership. Thus, the relationship between the inquirer and the partner or former partner has no bearing on the inquirer’s obligations under Rules 8.3 and 8.4.

The inquirer is cautioned that several limitations on the reporting obligation should be observed. First, under Rule 8.3(c), Rule 1.6 must be consulted in the event that any release of confidential client information is implicated. Rule 8.3(c) would apply, inter alia, where an attorney-client relationship exists between the reporting member and the member in question. Absent client consent, certain violations may not be subject to disclosure.

Second, Rule 8.3 applies to “known” violations only, rather than to “potential” violations. It is not appropriate to report another member of the Bar for conduct other than an actual violation of which the reporting member has knowledge.

Finally, it appears that this inquiry may have arisen in the context of a recent dissolution of a partnership. Given the acrimony that sometimes accompanies such a dissolution, it is worthwhile to note that reporting under Rule 8.3 is a serious step which should be taken only for the reasons set forth in the Rule, and not as a weapon in a dispute arising out of the dissolution. See S.C. Bar Ethics Adv. Op. 02-13 (“accusing another lawyer of misconduct is a serious matter that should not be undertaken lightly”).

2. Rule 8.3 by its plain terms requires that professional misconduct be reported to “the appropriate professional authority.” Rule 8.3(a) (emphasis added). Reporting objectionable conduct to a Solicitor does not meet the obligation imposed by Rule 8.3 because the Solicitor is not a professional authority as contemplated by the Rule. Therefore, the fact that the Solicitor was informed has no bearing on the inquirer’s obligations under the Rules.