Must a lawyer report another lawyer who merely says out loud that he is thinking about violating an ethics rule?

Plain-English summary

Opinion 17-02 addressed Lawyer A, who overheard Lawyer B tell third persons that he was contemplating forming a business relationship with his non-attorney employee, and asked whether she had a duty to report the conversation to the disciplinary authority. The Committee concluded there is no duty to report.

The Committee accepted that forming a legal business with a non-lawyer is currently a serious violation of the rules, but reasoned that expressing an intent to violate a rule is not itself misconduct. Rule 8.3(a) requires a lawyer who knows that another lawyer has committed a violation raising a substantial question as to honesty, trustworthiness, or fitness to report it. The duty is limited to known (not merely suspected) violations, to relatively serious offenses, and is otherwise qualified. The Committee noted (citing The Law of Lawyering) that an all-encompassing mandatory reporting rule would invite widespread non-compliance, so the rule is limited to known violations that directly affect the integrity of the profession.

The Committee also addressed Rule 8.4(a), which makes an attempt to violate the rules itself misconduct, and concluded that even under Rule 8.4(a) a lawyer must take action rather than merely muse out loud about violating the rules. Because Lawyer B had only spoken about a contemplated arrangement and taken no action amounting to an attempt, there was nothing to report. The Committee added that the offending lawyer might read the rule and abandon the idea, or a colleague might, as a professional courtesy, alert him so he avoids the violation.

In practice

The opinion holds that, under Rule 8.3(a), the reporting duty arises only when a lawyer knows another lawyer has committed a violation raising a substantial question of honesty, trustworthiness, or fitness, and that an overheard expression of intent to violate a rule, with no action taken, does not trigger it. Per the opinion, an attempt under Rule 8.4(a) still requires action beyond speaking about a contemplated violation, so on these facts there was nothing reportable.

Common questions

Q: If I hear another lawyer say he plans to break an ethics rule, do I have to report him?

A: No, per this opinion. The Committee concluded there is no duty to report a mere oral expression of intent, because Rule 8.3(a)'s duty is triggered only by a known, completed violation that raises a substantial question of honesty, trustworthiness, or fitness.

Q: Does Rule 8.4(a) on attempts change the answer?

A: No. The opinion states that even an attempt under Rule 8.4(a) requires action, not just talking out loud about a contemplated violation, so an unacted-on expression of intent is not an attempt.

Q: What does Rule 8.3(a) actually require reporting of?

A: The opinion explains that Rule 8.3(a) requires reporting only known violations that raise a substantial question as to a lawyer's honesty, trustworthiness, or fitness, a deliberately limited duty focused on offenses that affect the integrity of the profession.

Background and rules framework

The opinion interprets Utah Rule of Professional Conduct 8.3(a) (reporting professional misconduct) and Rule 8.4(a) (misconduct, including attempts), which correspond to their ABA Model Rule counterparts. It relies on the limiting language of Rule 8.3(a) and its Comment 3, and on commentary in Hazard, Hodes & Jarvis, The Law of Lawyering, regarding the deliberately narrow scope of the reporting obligation.

Citations and references

Rules of Professional Conduct:

• MR 8.3 / Utah RPC 8.3(a) (reporting professional misconduct)
• MR 8.4 / Utah RPC 8.4(a) (misconduct; attempts)

Cases:

• Attorney U v. Mississippi State Bar, 678 So. 2d 963 (Miss. 1996), knowledge of a lawyer-nonlawyer business relationship
• In re Riehlmann, 891 So. 2d 1239 (La. 2005), knowledge of a prosecutor's falsified evidence

Other references:

• Hazard, Hodes & Jarvis, The Law of Lawyering (2009 Supplement)

See also

• ABA Formal Op. 04-433: Reporting a Non-Practicing Lawyer
• ABA Formal Op. 03-431: Reporting an Impaired Lawyer
• AL Ethics Op. 1992-09: Duty to Report a Judge

Source

• Landing page: https://www.utahbar.org/ethics-opinions/17-02/

Original opinion text

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

Issue

Is a lawyer required to report to the Bar a fellow lawyer who orally articulates an anticipated violation of the Rules of Professional Conduct?

Opinion

Opinion: Under the circumstances of the requested opinion, there is no duty to report.

3. Background: Lawyer A overhears Lawyer B telling third persons that he was contemplating forming a business relationship with his non-attorney employee. Lawyer A requests an opinion as to her duty to report the conversation to the appropriate disciplinary authority.

Discussion

4. Discussion. There is no duty to report unless there is a violation of the rules. Rule 8.3(a) provides that "A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyer's honesty, trustworthiness or fitness as a lawyer." The Committee accepts the proposition that forming a legal business with a non-lawyer is presently a serious violation of the rules. This does not mean that an expression of intent to violate the rule constitutes misconduct. "As Comment I to Restatement 5 correctly notes, however, under most codes of professional ethics, the duty to report is limited to wrongdoing known (rather than suspected) to have occurred, is limited to relatively serious offenses and is qualified ..." Hazard, Hodes & Jarvis "The Law of Lawyering" Section 64.2 (2009 Supplement).

5. For examples of when a lawyer actually "knows" of a violation, see Attorney U v. Mississippi State Bar, 678 So. 2d 963 (Miss. 1996) where the lawyer actually saw a contract setting up a business relationship between a lawyer and a non-lawyer testing firm. Even in that case, the Mississippi Supreme Court majority was not willing to impute knowledge to the attorney involved. (But see the dissent where four justices indicated that they would interpret "willful ignorance" as knowledge.) See also In re Riehlmann, 891 So. 2d 1239 (2005), where an attorney had knowledge that the prosecutor had falsified the DNA testing of the defendant in a death penalty case. In both cases, the disciplinary authority was not willing to infer actual knowledge of events which might have occurred. This opinion does not concern the quantum of proof needed to trigger a duty to report actual knowledge of an attempted or completed violation of the rules. It merely states that an oral expression of intent is not such a violation.

6. Rule 8.3(a) is limited to actions. The offending lawyer may well read the Rule and come to the conclusion that his proposed course of action is precluded. His fellow attorney in an act of professional courtesy might also give him that knowledge in order to assist a fellow lawyer from doing that which he ought not. The offending lawyer may simply lose interest and may never violate the Rules.

7. This opinion is supported by the reporting requirement of Rule 8.3(a) which requires only the reporting of "substantial questions of honesty, trustworthiness or fitness." As Hazard, Hodes & Jarvis note "Rule 8.3(a) accepts the reality that an all-encompassing mandatory reporting rule would be subject to massive civil disobedience that would in turn make it difficult to prosecute even clear and egregious cases of refusal to report. The compromise limits the Rule to cases of known violations that directly impact the integrity of the legal profession." Hazard, Hodes & Jarvis Section 64.3 (2009 Supplement).

8. Comment 3 to Rule 8.3 notes that the former rule of unlimited responsibility to report any misconduct proved unenforceable in other jurisdictions. "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."

9. Rule 8.4(a) makes an attempt to violate the Rules of Professional Conduct itself misconduct. It has been suggested that speech may evidence intent to violate the rules. However, even under 8.4(a) the lawyer must still take action rather than muse out loud about violating the rules. Hazard, Hodes & Jarvis make plain that action is required. "As in the substantive criminal law, an unsuccessful attempt to violate the Rules may nonetheless still be sufficient to subject the lawyer to professional discipline under Rule 8.4(a)." Hazard, Hodes & Jarvis Section 65.3 (2009 Supplement) (emphasis in the original). It is clear that there must be an "attempt" to violate the rules and in the scenario before the committee, there is no such attempt.