Must a lawyer in a bar-association mentoring or 'Colleagues' program report ethics violations learned through that program's confidential counseling?

Plain-English summary

The inquiry concerned a local bar's Colleagues Program, an experimental group-mentoring program in which a group of newer lawyers met regularly with more experienced advisor lawyers to exchange ideas about the practice, including ethics, practice standards, and relationships with clients, courts, the community, and other lawyers, with the goal of enhancing the integrity and competence of the bar. The program's founders believed that protection from the duty to report information arising from the program, in group sessions or individual counseling, was vital to its success, so that colleagues could test ideas and raise concerns freely; they analogized the protection to the attorney-client privilege.

The opinion identified the tension. DR 1-103 requires a lawyer with unprivileged knowledge of an ethics violation to report it to the Board, and that mandatory duty derives from Canon 1, which calls on lawyers to help maintain the integrity and competence of the profession. The opinion framed its task as balancing the Canon and the Disciplinary Rule, and balancing the profession's and public's interest in encouraging lawyers to seek the program's assistance against the duty to protect the public by reporting misconduct. It situated the program within the reasoning of Recommendation 4 of the 1991 McKay Commission report (proposing a Lawyer Practice Assistance Committee to help lawyers improve office and case management and substantive knowledge).

The opinion concluded that a privilege against required disclosure of confidences and secrets is afforded to lawyers participating in such bar-sponsored Colleagues programs, to the extent the information would be confidential if communicated subject to the attorney-client privilege, with a caveat to remain aware of the exceptions to that privilege, including an intent to engage in illegal activity, to convert client funds, or to practice a fraud upon the court.

Currency note

This opinion was issued in 1991, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility (including DR 1-103 and Canon 1) on which it relied, and before the ABA's 2002 Ethics 2000 revisions. The modern analogs are RPC 8.3 (reporting professional misconduct, which now includes an express exception for information gained while participating in an approved lawyers-assistance program) and RPC 1.6 (confidentiality). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance, and verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Did a lawyer in the Colleagues mentoring program have to report ethics violations learned in the program?

A: Per the opinion, no, to the extent the information would be confidential if subject to the attorney-client privilege. The opinion afforded participants a privilege against required disclosure of such confidences and secrets.

Q: Were there limits on that protection?

A: Yes. The opinion cautioned that the usual exceptions to the privilege applied, including an intent to engage in illegal activity, to convert client funds, or to practice a fraud upon the court.

Q: What was the duty the opinion was balancing against?

A: DR 1-103, the mandatory duty (derived from Canon 1) for a lawyer with unprivileged knowledge of an ethics violation to report it to the Board.

Background and rules framework

The opinion interpreted DR 1-103 (the mandatory duty to report ethics violations) and Canon 1 (maintaining the integrity and competence of the profession), balanced against the value of the bar's mentoring program. The modern analogs are Model Rule 8.3 / Tennessee RPC 8.3 (reporting professional misconduct, including the approved-lawyers-assistance-program exception) and Model Rule 1.6 / Tennessee RPC 1.6 (confidentiality).

Citations and references

Rules of Professional Conduct (former Code):

• DR 1-103 (mandatory reporting of ethics violations); Canon 1 (integrity and competence of the profession). Modern analog: Model Rule 8.3 / Tennessee RPC 8.3
• (Confidentiality of program communications). Modern analog: Model Rule 1.6 / Tennessee RPC 1.6

Other authorities:

• Report of the ABA Commission on Evaluation of Disciplinary Enforcement (McKay Commission), Recommendation 4 (May 1991) (Lawyer Practice Assistance Committee)

See also

• ABA Formal Op. 03-431: Reporting an Impaired Lawyer Outside the Firm
• ABA Formal Op. 04-433: Reporting Misconduct of a Non-Practicing Lawyer
• ABA Formal Op. 03-429: A Mentally Impaired Lawyer in the Firm

Source

• Landing page: https://www.tbpr.org/ethic_opinions/91-f-126

Original opinion text

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

91-F-126 - Bar Association Colleagues Program

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 91-F-126

Inquiry is made concerning the ethical obligation of lawyers participating in a Colleagues Program of a local bar to report ethical violations revealed or discovered as a result of group or individual counseling with other participants.

The Colleagues Program is an experimental group mentoring program, each group consisting of five lawyers practicing five or less years, one advisor having practiced six through ten years, one advisor having practiced eleven through twenty years, and one having practiced more than twenty years. The focus of each colleague group is to meet regularly for an interchange of ideas, thoughts and practices as to concerns facing the members in the practice; including such matters as ethics, practice standards, and relationships with clients, the courts, the community and fellow lawyers. The purpose of the program is to enhance the integrity and competence of the bar.

Disciplinary Rule 1-103 of the Code of Professional Responsibility requires lawyers possessing unprivileged knowledge of an ethics violation to report the violation to the Board of Professional Responsibility. The founders of the Colleagues Program believe that protection from the duty to report information arising from the program, whether in group sessions or individual counseling is vital to the successful operation of the program in that colleagues must be free to test ideas, explore all avenues and raise concerns in an open and free interchange. The privilege sought is analogous to the privileged communication between attorney and client. For example, in the event a single new colleague sought the legal advice of a single other lawyer colleague, the attorney-client privilege would attach and relieve the advising lawyer of a duty to report.

The Colleagues Program is a unique pilot program designed as a preventative tool that fits within the reasoning of Recommendation 4 of the May, 1991 Report of the American Bar Association Commission (McKay Commission) on Evaluation of Disciplinary Enforcement, which provides, in part, as follows:

Recommendation 4: Lawyer Practice Committee.

4.1 The Court should establish a Lawyer Practice Assistance Committee.

... The Lawyer Practice Assistance Committee should provide guidance to the lawyer including, when appropriate: (a) review of the lawyers' office and case management practices and recommendations for improvement; and (b) review of the lawyers' substantive knowledge of the law and recommendations for further study.

Disciplinary Rule 1-103 which provides the mandatory ethical duty to report ethics violations is derived from Canon 1 of the Code of Professional Responsibility. Canon 1 provides that a lawyer should assist in maintaining the integrity and competence of the legal profession. This opinion seeks to balance the tension between the Canon and the Disciplinary Rule in the circumstances under consideration; and also balance the significant interest of the profession and the public in encouraging lawyers to seek the assistance of the Colleagues Program with the fundamental obligation of protecting the public from harm by reporting professional misconduct.

A privilege of not requiring disclosure of confidences and secrets is afforded to lawyers participating in Colleague Programs sponsored by local bar associations to the extent that such information would be confidential if it were communicated subject to the attorney client privilege, with a caveat to be aware of the exceptions to the privilege, i.e., an intent to engage in illegal activity, to convert client funds, to practice a fraud upon the court, etc.

This 13th day of September, 1991.

ETHICS COMMITTEE:

W.J. Michael Cody

Thomas H. Rainey

Walker T. Tipton

APPROVED AND ADOPTED BY THE BOARD