Must a Virginia lawyer report another lawyer's crime when there is no showing that the crime affected that lawyer's ability to practice law?

Plain-English summary

The inquiry asked whether a Virginia attorney is obligated under DR 1-103(A) to report criminal conduct, known or believed to have been engaged in by other Virginia counsel, when there is no demonstration that the criminal conduct, however morally culpable, has affected the lawyer's ability to practice law. DR 1-103(A) requires a lawyer with information indicating that another lawyer has violated a Disciplinary Rule in a way that raises a substantial question as to that lawyer's fitness to practice law to report the information to the appropriate professional authority, except as provided in DR 4-101 (preservation of client confidences and secrets), which the committee found inapplicable to the inquiry.

The committee described a two-prong test. First, the lawyer must have information indicating a violation of a Disciplinary Rule; a lawyer who commits a "crime" as defined in the Bar's organizational rules, or another deliberately wrongful act, violates DR 1-102(A)(3) if it reflects adversely on the lawyer's fitness to practice law, which would satisfy the first prong. Second, the violation must raise a substantial question as to the lawyer's fitness to practice law in other respects. The committee disagreed with the inquiry's suggestion that moral culpability is a lesser concern, opining that moral culpability may or may not be one relevant factor, along with the recency of the crime, the seriousness of the offense, the likelihood of repetition, the likelihood that it will affect competence, and any mitigating or aggravating circumstances; no single factor controls and not all need be met.

The committee said the reporting determination is largely substantive, though some violations may be so severe that reasonable people could not differ. It pointed to LE Op. 977, where it had found that the recent use of cocaine raised a substantial question as to a lawyer's fitness, while noting that circumstances and mitigation matter. In summary, the committee opined that knowledge of a DR 1-102(A)(3) violation that does not raise a substantial question as to the lawyer's fitness to practice law in other respects does not create a duty to report under DR 1-103(A). The committee note adds that, under current Rule 1.6(c)(3), where the information is a client confidence the lawyer may report only with the client's consent and must consult the client.

Currency note

This opinion was issued in 1987, under Virginia's former Code of Professional Responsibility, before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. The committee note describes the interaction with confidentiality under current Rule 1.6(c)(3). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Does a lawyer have to report every crime committed by another lawyer?

A: Under this 1987 opinion, no. The committee read DR 1-103(A) to require reporting only when the violation raises a substantial question as to the other lawyer's fitness to practice law.

Q: How is "substantial question as to fitness" assessed?

A: The committee identified several relevant factors, including moral culpability, the recency of the crime, the seriousness of the offense, the likelihood of repetition, and the likelihood of an effect on competence, with no single factor controlling.

Q: What if the information is a client confidence?

A: The committee note states that under current Rule 1.6(c)(3) the lawyer may report only with the client's consent and must consult the client before doing so.

Background and rules framework

The opinion interpreted former Virginia DR 1-103(A) (reporting another lawyer's misconduct, the counterpart of ABA Model Rule 8.3) together with DR 1-102(A)(3) (committing a crime or deliberately wrongful act reflecting adversely on fitness) and DR 4-101 (client confidences). It referred to Ethical Consideration 1-5 and to the definition of "Crime" in the rules governing the Organization and Government of the Virginia State Bar. The committee note ties the confidentiality limit to current Virginia Rule 1.6(c)(3), the counterpart of ABA Model Rule 1.6.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 1-103(A) (duty to report another lawyer's misconduct; counterpart of ABA Model Rule 8.3)
• Former Virginia DR 1-102(A)(3) (crime or deliberately wrongful act reflecting on fitness)
• Former Virginia DR 4-101 (client confidences and secrets)
• Former Virginia EC 1-5 (maintaining high standards of professional conduct)
• Virginia Rule 1.6(c)(3) / ABA Model Rule 1.6 (confidentiality; reporting with client consent)

Other opinions cited:

• LE Op. 977: recent cocaine use found to raise a substantial question as to a lawyer's fitness to practice

See also

• VA LEO 1093: Duty to Report Co-Counsel Who Suborned Perjury
• VA LEO 1133: Duty to Report an Attorney Who Advanced Money to a Client
• VA LEO 1308: Duty to Report and a Disputed Settlement Waiver

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1004.pdf

Original opinion text

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

Committee Opinion
December 9, 1987
LEGAL ETHICS OPINION 1004

ATTORNEY – DUTY TO REPORT
MISCONDUCT.

You wish to know whether a Virginia attorney is obligated, pursuant to DR:1-103(A),
to report criminal conduct, known or believed by him to have been engaged in by other
Virginia counsel, when there is no demonstration that this criminal conduct, however
morally culpable it may be, has affected the lawyer's ability to practice law.
Disciplinary Rule 1-103(A) states that "a lawyer having information indicating another
lawyer has committed a violation of the Disciplinary Rules which raises a substantial
question as to that lawyer's fitness to practice law in other respects, shall report such
information to the appropriate professional authority, except as provided in DR:4-101."
Disciplinary Rule 4-101 provides for the preservation of client confidences and secrets
and is not applicable to this inquiry.
Disciplinary Rule 1-103(A) contains a two-prong test. First, a lawyer must have
information indicating that another lawyer's conduct has violated one of the Disciplinary
Rules of the Virginia Code of Professional Responsibility. Your question involves a
lawyer who has committed a crime as defined in § IV, Organization and Government of
the Virginia State Bar:
Paragraph 13. Procedure for Disciplining, Suspending and Disbarring
Attorneys.
A. Definitions....(9) "Crime" means (a) any offense declared to be a felony by
Federal or state law; (b) any offense, whether Federal or state involving theft,
fraud, forgery, extortion, bribery, or perjury; or (c) an attempt, solicitation or
conspiracy to commit any of the foregoing. Any criminal offense may be deemed
to be misconduct as hereinafter defined.
Disciplinary Rule 1-102(A)(3) [ DR:1-102] is violated if a lawyer commits a crime or
other deliberately wrongful act that "reflects adversely on the lawyer's fitness to practice
law." If the attorney has committed a crime which reflects adversely on his fitness to
practice law the first prong of DR:1-103(A) would be satisfied. See also EC:1-5,
which provides:
A lawyer should maintain high standards of professional conduct and should
encourage fellow lawyers to do likewise. He should be temperate and dignified,
and he should refrain from all illegal and ethically reprehensible conduct which
reflects adversely on his fitness to practice law. Because of his position in society,
even minor violations of law by a lawyer may tend to lessen public confidence in
the legal profession. Obedience to law exemplifies respect for law. To lawyers
especially, respect for the law should be more than a platitude.
The second prong of DR:1-103(A) is whether the violation of the disciplinary rule
"raises a substantial question as to that lawyer's fitness to practice law in other respects."

Committee Opinion
December 9, 1987
Your inquiry suggested that the degree of moral culpability involved in the crime is a
lesser concern to the issue of the attorney's "fitness" to practice law. The Committee
disagrees and opines that the degree of moral culpability involved in the crime may or
may not be one relevant factor in determining if the commission of the crime raises a
substantial question as to the lawyer's fitness to practice law. Other relevant factors
include, but are certainly not limited to, the recency of the crime, the seriousness of the
offense, the likelihood that the crime will be repeated, the likelihood that it will affect the
attorney's competence and any mitigating or aggravating circumstances. No single factor
is controlling in every case and all factors need not be met in order that a substantial
question be raised as to an attorney's fitness to practice law.
The determination of whether a violation must be reported is a substantive one for the
most part. However, certain violations may be so severe that reasonable people could not
differ as to whether the violation must be reported. In LE Op. 977, the Committee
believed that the crime and the fact that it had recently been committed was sufficient to
conclude that the use of cocaine raised a substantial question as to the fitness of that
lawyer to practice law. It was not the Committee's opinion that reasonable people might
not differ on this issue, depending upon the particular circumstances surrounding the
offense and in particular any mitigating circumstances. Accordingly, the commission of
the crime, as described in LE Op. 977, should be viewed in light of the particular
circumstances involved to determine whether the conduct raises a "substantial question"
in the mind of the inquirer, which in turn would control the question of whether reporting
is or is not required.
In summary, based on your inquiry, knowledge of a violation of DR:1-101(A)(3) which
does not raise a substantial question as to that lawyer's fitness to practice law in other
respects, does not create a duty to report misconduct pursuant to DR:1-103(A).
Committee Opinion
December 9, 1987
Legal Ethics Committee Notes. – If information about the ethics violation is a client
confidence, a lawyer may report the other lawyer’s misconduct only if the client consents
under Rule 1.6(c)(3); the lawyer considering whether to report must consult with the
client under that Rule.
Rule 1.11 allows a law firm to avoid disqualification in certain circumstances if it
screens the former government lawyer.