Can a Texas lawyer report an opposing party's or witness's possible crime that the lawyer learned about while representing a client, and must the lawyer do so?

Plain-English summary

The opinion addresses a lawyer who, while representing a client, learns facts strongly suggesting the opposing party and an adverse witness may be involved in illegal activity the client is not part of, and considers reporting it to law enforcement.

The Committee first frames two threshold limits. A lawyer owes zealous representation and generally may not act contrary to the client's interests, so a report contrary to the client's interests is barred absent an overriding legal obligation; and if the information is confidential information relating to or supplied by the client, Rule 1.05 generally bars disclosure without consent or another authorizing basis. The rest of the opinion assumes neither problem is present.

On the merits, the Committee concludes the rules do not require reporting a third party's possible illegal activity, but Rule 4.04 restricts how a lawyer may use information about third parties. Rule 4.04(a) bars using means that have no substantial purpose other than to embarrass, delay, or burden a third person; if a report has a substantial purpose such as aiding law enforcement, it is not barred. Rule 4.04(b)(1) bars presenting or threatening criminal or disciplinary charges solely to gain an advantage in a civil matter. The lawyer's purpose is judged case-by-case on all the circumstances (for example, the lawyer's history with such enforcement, or the seriousness of the crime). Under Rule 8.04(a)(1), a lawyer may not circumvent Rule 4.04 by having the client make a report that would violate the rule if made by the lawyer. The opinion notes other law may require reporting (for example, Tex. Family Code section 261.101 on child abuse), and that failing to report could implicate Rule 8.04(a)(2) or (4) if the lawyer is thereby committing a serious crime or obstructing justice.

In practice

Under this opinion, and under the Texas rules as they stood at the time, a lawyer who learns of an opposing party's or witness's possible crime is not required to report it and may do so, provided reporting is consistent with the client's interests and does not misuse client confidences. The Committee makes the analysis turn on purpose: a report is improper if its only substantial purpose is to embarrass, delay, or burden the third person (Rule 4.04(a)) or if its sole purpose is to gain a civil advantage (Rule 4.04(b)(1)). A lawyer cannot use the client as a conduit to evade Rule 4.04 (Rule 8.04(a)(1)). Separate statutes may independently require reporting.

Common questions

Q: I think the opposing party committed a crime. Do the disciplinary rules make me report it?

A: No. Per Opinion 589, the rules do not require reporting an adverse party's or witness's possible illegal activity (though other statutes might).

Q: Can I report it, or would that violate the rules?

A: You may, assuming it is not contrary to your client's interests and does not misuse client confidences. The Committee says it is barred only if the only substantial purpose is to embarrass, delay, or burden the person, or the sole purpose is to gain a civil advantage.

Q: Can I have my client make the report instead to avoid Rule 4.04?

A: No. Under Rule 8.04(a)(1), the Committee says a lawyer may not circumvent Rule 4.04 by causing the client to make a report that would violate the rule if the lawyer made it directly.

Background and rules framework

The opinion interprets Texas Disciplinary Rule 4.04 (respect for the rights of third persons, including 4.04(a) and the bar in 4.04(b)(1) on presenting or threatening charges to gain a civil advantage), corresponding to ABA Model Rule 4.4; Rule 1.05 (confidentiality), corresponding to ABA Model Rule 1.6; and Rule 8.04(a)(1), (2), (4) (misconduct), corresponding to ABA Model Rule 8.4.

Citations and references

Rules of Professional Conduct:

• MR 4.4 (respect for rights of third persons)
• MR 1.6 (confidentiality of information)
• MR 8.4 (misconduct)
• Texas Disciplinary Rule 4.04(a), 4.04(b)(1)
• Texas Disciplinary Rule 1.05(b)(1)-(2), 1.05(c)(2), (4)
• Texas Disciplinary Rule 8.04(a)(1), (2), (4)

Statutes:

• Tex. Family Code section 261.101 (mandatory reporting of suspected child abuse or neglect)

See also

• TX Ethics Op. 595: Using a Former Client's Public-Record Information

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-589/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_589.pdf

Original opinion text

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

QUESTION PRESENTED

Do the Texas Disciplinary Rules of Professional Conduct permit or require a lawyer to report possibly illegal activity by an adverse party or witness when the lawyer acquires information about that activity in the course of representing a client?

STATEMENT OF FACTS

In connection with representing a client, a lawyer learns facts strongly indicating that the opposing party and an adverse witness may be involved in illegal activity in which the client is not involved. The lawyer is considering reporting this information to the appropriate law enforcement authorities.

DISCUSSION

A lawyer's duty to his client is to represent zealously the client’s interests. See paragraph 3 of the Preamble to the Texas Disciplinary Rules of Professional Conduct. With very limited exceptions, a lawyer may not in connection with the representation of a client act in a manner that is contrary to the interests of the client. Thus, a lawyer could not report possibly illegal activity of an adverse party or witness to law enforcement authorities if making the report would be contrary to the interests of the client unless the lawyer had an overriding legal obligation to make such a report. Furthermore, in these circumstances, if the information regarding the activity were confidential information that related to the client or was supplied by the client, Rule 1.05 would generally prohibit reporting the information to law enforcement authorities unless the client consented or the reporting was required by a court order, the Texas Disciplinary Rules of Professional Conduct, or other law. See Rule 1.05(b)(1) and (2) and Rule 1.05(c)(2) and (4). The remainder of this opinion assumes that reporting the possibly illegal activity of the adverse party or witness would not be contrary to the interests of the lawyer’s client and would not improperly reveal or use confidential information of the client.

The Texas Disciplinary Rules of Professional Conduct do not specifically require a lawyer to report possibly illegal activity of adverse parties or witnesses. Rule 4.04 does, however, restrict a lawyer's use of information about adverse parties, witnesses and other third parties obtained in the course of representing a client. Rule 4.04(a) requires that, “[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person . . . .” If reporting possibly illegal activity of a third party has a substantial purpose – such as aiding in law enforcement – other than to embarrass, delay, or burden the third party, then Rule 4.04(a) would not prohibit the lawyer from reporting the possibly illegal activity. An additional requirement, set out in Rule 4.04(b)(1), is that “[a] lawyer shall not present, participate in presenting, or threaten to present: (1) criminal or disciplinary charges solely to gain an advantage in a civil matter . . . .” Thus, Rule 4.04(b)(1) prohibits the lawyer from reporting the possibly illegal conduct of an adverse party or witness if the lawyer's sole purpose is to gain an advantage in the matter for which the lawyer is providing representation.

For purposes of applying the requirements of Rule 4.04(a) and Rule 4.04(b)(1), a lawyer’s purpose or purposes must be evaluated on a case-by-case basis, taking into account all the circumstances. For example, if the lawyer had a history of participating in activities that assisted law enforcement authorities in enforcing laws of the type possibly violated by the adverse party or witness, then evidence of the lawyer’s prior actions could be relevant to determining the lawyer’s purpose in reporting the possibly illegal activity in the current circumstances. By contrast, if the lawyer had never shown any interest or involvement in the enforcement of the laws at issue before the case at hand, such prior history could be evidence of the absence of any legitimate purpose for making the report. In some situations, the seriousness of the crime that the lawyer proposes to report could be relevant with respect to the lawyer’s purpose.

Under Rule 4.04, it does not matter whether the lawyer is reporting the possibly illegal activity on his own initiative or at the direction of or in concert with his client. Determining if such reporting is permissible under the Rule turns on whether the only substantial purpose for reporting is to embarrass, delay or burden a third person and whether the report is being made solely to gain an advantage in a civil matter. Moreover, under Rule 8.04(a)(1), the lawyer is prohibited from seeking to circumvent the requirements of Rule 4.04 by causing the lawyer’s client to make a report that would violate Rule 4.04 if the report were made directly by the lawyer.

This opinion addresses only a lawyer’s obligations under the Texas Disciplinary Rules of Professional Conduct. It is beyond the scope of this opinion to discuss any limitations or requirements imposed on a lawyer under other applicable laws or rules. An example of a law that requires the reporting of certain possibly illegal activities is section 261.101 of the Texas Family Code, which provides that all persons having cause to believe that a child's physical or mental health or welfare has been adversely affected by abuse or neglect by any person are required to make a report to appropriate authorities.

It should be noted that, if, by failing to report criminal activity of an adverse party or witness, the lawyer is himself committing a serious criminal act or obstructing justice, then Rule 8.04(a)(2) and (4) would be implicated. A lawyer violates Rule 8.04(a)(2) if the lawyer commits “a serious crime” or “any other criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects . . . .” Rule 8.04(a)(4) prohibits a lawyer from engaging in conduct that constitutes obstruction of justice.

CONCLUSION

The Texas Disciplinary Rules of Professional Conduct do not specifically require a lawyer to report possibly illegal activity of an adverse party or witness. Assuming that such reporting is not contrary to the interests of the lawyer’s client and would not improperly reveal or use a client’s confidential information and that there is no law requiring the reporting of the activity, the Texas Disciplinary Rules of Professional Conduct would permit, but would not require, a lawyer to report the information to the appropriate legal authorities unless the only substantial purpose for doing so was to embarrass, delay or burden a third person or the sole purpose for such reporting was to gain an advantage in a civil matter.

Tex. Comm. On Professional Ethics, Op. 589 (2009)