If a lawyer learns that another lawyer altered an email and offered it as evidence, must the lawyer report that to disciplinary authorities?

Plain-English summary

Lawyers A and B each represented the same client, providing distinct services over years. After the client died, the client's children sued Lawyer B. In his defense, Lawyer B presented an email claiming that Lawyer A was supposed to provide a certain service. Lawyer A's file contained a copy of an email of the same date, identical to Lawyer B's except that Lawyer B's version included two words not in Lawyer A's copy. Lawyer A filed an affidavit attesting to the veracity of his file copy and denying any alteration on his part. The matter settled on the day of the hearing on the issue. The inquiry asked whether Lawyer A must report the matter to the Office of Disciplinary Counsel, and whether other lawyers in the action have a duty to report.

The committee concluded that Lawyer A is required by Rule 8.3(b) to report Lawyer B's conduct. Rule 8.3(b) requires a lawyer who knows 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; comment 3 limits the obligation to serious offenses, with "substantial" referring to the seriousness of the possible offense, not the quantum of evidence. The committee noted Rule 3.4(a) (not to unlawfully alter, destroy, or conceal evidence) and Rule 3.3(a)(1) and (3) (not to make a false statement to a tribunal or offer evidence the lawyer knows to be false).

The committee reasoned that, under the circumstances, either Lawyer A's copy or Lawyer B's copy was changed, and because Lawyer A made a sworn statement that his file copy represents the original email as received, Lawyer A "knows" that another lawyer has committed a violation (Rule 1.0(h) defining "knows" as actual knowledge that may be inferred from the circumstances). Applying the Rules' definition of "substantial" (a material matter of clear and weighty importance), the committee concluded that altering evidence and presenting it to a tribunal raises a substantial question as to the lawyer's honesty, trustworthiness, or fitness, so Lawyer A has a duty to report to the Commission on Lawyer Conduct. As to other lawyers, the committee said it cannot advise; each lawyer must determine for himself or herself, using the same analysis, whether his or her knowledge of the violation rises to the reporting obligation, since one lawyer may have the requisite knowledge while another may not.

In practice

The opinion holds that, under South Carolina Rule 8.3(b), a lawyer who knows that another lawyer altered a document and offered it to a tribunal must report the conduct to the Commission on Lawyer Conduct, because Rule 3.4(a) and Rule 3.3(a) violations of that kind raise a substantial question as to the other lawyer's honesty, trustworthiness, or fitness. The opinion uses Rule 1.0(h) to find that Lawyer A "knows" of the violation, given his sworn affidavit, and applies the Rules' definition of "substantial" (a material matter of clear and weighty importance) to find the threshold met. The opinion declines to decide the reporting duties of other lawyers in the case, holding that each must analyze his or her own knowledge.

Common questions

Q: Does a lawyer have to report another lawyer for altering and submitting an email as evidence?

A: Yes, where the lawyer knows of it. The committee said Rule 8.3(b) requires reporting because altering evidence and presenting it to a tribunal raises a substantial question as to the other lawyer's honesty, trustworthiness, or fitness.

Q: How does the lawyer "know" the other lawyer committed the violation?

A: Through actual knowledge inferable from the circumstances. The committee applied Rule 1.0(h), noting that Lawyer A's sworn affidavit that his file copy was the original supports actual knowledge that the other copy was altered.

Q: What does "substantial question" mean here?

A: Seriousness, not quantum of evidence. The committee cited comment 3 and the Rules' definition of "substantial" (a material matter of clear and weighty importance), and found altering and presenting evidence meets it.

Q: Must every lawyer involved in the case report it?

A: Not necessarily. The committee said it cannot opine on other lawyers' duties; each must determine for himself or herself whether his or her knowledge rises to the Rule 8.3(b) obligation.

Background and rules framework

The opinion interprets South Carolina Rule 8.3(b) (duty to report another lawyer's serious misconduct), with Rule 3.4(a) (not unlawfully altering or concealing evidence) and Rule 3.3(a)(1) and (3) (candor to the tribunal), and uses Rule 1.0(h)'s definition of "knows," all corresponding to the like-numbered Model Rules. The analysis turns on whether the reporting lawyer has actual knowledge of the violation and whether the violation raises a substantial question of honesty, trustworthiness, or fitness.

Citations and references

Rules of Professional Conduct:

• MR 8.3 / SC Rule 8.3(b) and Comment 3 (reporting professional misconduct; "substantial")
• MR 3.4 / SC Rule 3.4(a) (not unlawfully altering, destroying, or concealing evidence)
• MR 3.3 / SC Rule 3.3(a)(1), 3.3(a)(3) (candor to the tribunal; no false evidence)
• MR 1.0 / SC Rule 1.0(h) (definition of "knows")

See also

• SC Bar Ethics Op. 05-04: Duty to Report Another Lawyer
• SC Bar Ethics Op. 05-03: Reporting Opposing Counsel
• ABA Formal Op. 04-433: Reporting Misconduct of a Non-Practicing Lawyer

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-13-01/
• Original PDF: https://www.scbar.org/media/v05pe2fy/13-01.pdf

Original opinion text

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

ETHICS ADVISORY OPINION
13-01

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.

Factual Background:
Lawyers A and B represented the same Client simultaneously for years, with each Lawyer providing distinct services to client. Upon Client’s death, the children of Client brought an action against Lawyer B. In Lawyer B’s defense of himself, he presented an email which claimed that Lawyer A was supposed to be providing a certain service to Client. Lawyer A’s file had a copy of an email bearing the same date and which was identical to that presented by Lawyer B, except that Lawyer B’s version included two words not present in Lawyer A’s file copy of the email. Lawyer A filed an affidavit attesting to the veracity of his file copy of the email and denying any alteration of the email on his part. On the date of the hearing on this issue, the matter settled.

Questions Presented:
1. Is Lawyer A under any ethical obligation to report the matter to the Office of Disciplinary Counsel, or anyone else in authority?
2. Would other Lawyers involved in the action be under a duty to report the matter?

Summary:
Lawyer A is required by Rule 8.3(b) to report the conduct of Lawyer B to the Commission on Lawyer Conduct, Office of Disciplinary Counsel of the South Carolina Supreme Court under the facts presented. This Committee cannot opine on the duties of the other lawyers involved in the litigation, as each lawyer must analyze the facts for himself or herself to determine whether he or she has knowledge of the violation that rises to an obligation to report the conduct.

Opinion:
Rule 8.3(b) of the South Carolina Rules of Professional Conduct states “A lawyer who knows 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.” S.C. R.P.C. Rule 8.3(b) (emphasis added). Further, Comment 3 to the rule provides in 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 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.” S.C. R.P.C. Rule 8.3, Comment 3.

Rule 3.4(a) provides that a Lawyer shall not “unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act.” S.C. R.P.C. Rule 3.4(a). In addition, Rule 3.3(a) provides “A lawyer shall not knowingly (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer . . . (3) offer evidence that the lawyer knows to be false . . .” S.C. R.P.C. Rule 3.3(a)(1), 3.3(a)(3).

Lawyer A contends that Lawyer B has violated Rule 3.4(a) in that Lawyer B altered evidence and then subsequently offered that altered evidence to a tribunal in violation of Rule 3.3.(a)(1) and (3). Lawyer A knows this because under the circumstances, either Lawyer A (or someone in his office) has changed his file copy of the email or Lawyer B (or someone in his office) has changed his copy of the email, and Lawyer A has made a sworn statement as to his recollection of the original document, and that to his knowledge, his file copy represents the original email as received. Therefore, Lawyer A “knows that another lawyer has committed a violation of the Rules of Professional Conduct.” S.C. R.P.C. Rule 3.4(a), S.C. R.P.C. Rule 1.0(h)(defining “knows” as denoting actual knowledge of the fact in question which can be inferred from the circumstance).

Thus Lawyer A now must consider whether this violation of the Rules of Professional Conduct “raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.” S.C. R.P.C. Rule 3.4(a). The Rules of Professional Conduct define “substantial” as follows: “when used in reference to degree or extent denotes a material matter of clear and weighty importance.” So Lawyer A must go through a fact-based analysis as to whether the action on the part of Lawyer B was of “clear and weighty importance” in reflecting on that attorney’s honesty and trustworthiness. In the opinion of this committee, the altering of evidence and presentment of that evidence to a tribunal does “raise a substantial question as to that lawyer’s honest, trustworthiness or fitness as a lawyer in other respects,” such that Lawyer A has a duty to report this violation to the Commission on Lawyer Conduct, in the Office of Disciplinary Counsel appointed by the South Carolina Supreme Court.

As to question 2, this Committee cannot advise as to the conduct of other attorneys involved in the underlying litigation. The question of knowledge of a violation presented by S.C. R.P.C. Rule 8.3(b) is one that each lawyer must answer for himself or herself, using the analysis stated above. While one lawyer involved in the matter may have “knowledge” of the violation, under the facts, another lawyer may not have “knowledge” of the infraction in question.