Must a successor lawyer report opposing counsel who lied about meeting a filing deadline, and does the reporting duty disqualify the successor as a witness in the malpractice case?

Plain-English summary

A personal-injury lawyer (P) told his client the suit had been filed, but actually filed it by hand delivery about seventeen days after the statute of limitations had run. When the defendants pleaded the limitations bar, P told the court the late filing was due to a clerk's mistake, offered no brief, witnesses, or affidavits, and the suit was dismissed with prejudice. P continued representing the client without consent, did not disclose what had happened, and later produced an undated, unsigned certified-mail receipt he claimed showed timely mailing. The client retained a second lawyer for a malpractice claim. That second lawyer asked the committee whether he had a duty to report P, when the duty arises, whether reporting would make him a disqualified witness, and whether he had an independent duty to file a grievance over the client's objection.

The controlling rules were DR 1-102(A)(4) (dishonesty, fraud, deceit, or misrepresentation reflecting adversely on fitness), DR 1-103(A) (duty to report another lawyer's violation that raises a substantial question as to fitness, except as provided in DR 4-101), DR 7-102(A)(5) (no knowing false statement of law or fact), and DR 5-102(A) and (B) (lawyer as witness).

The committee concluded that P's representing, to his client, opposing counsel, and the court, that the suit was timely when it was filed seventeen days late was a knowing false statement violating DR 7-102(A)(5), and possibly DR 1-102(A)(4) (citing LE Op. 1429). It set out a two-prong test for DR 1-103(A) (citing LE Op. 1004): first, information that another lawyer committed a violation; second, that the violation raises a substantial question as to fitness, judged by factors including recency, seriousness, likelihood of repetition, effect on competence, and mitigating or aggravating circumstances. The committee found both prongs met, so the second lawyer may have a duty to report. The duty attaches when the reporting lawyer's information rests on a substantial degree of certainty, not rumor or suspicion (citing LE Op. 1338). It held the reporting obligation does not, by itself, make the second lawyer one who "ought to be" called as a witness for his client under DR 5-102(A), and even if he "may be" called under DR 5-102(B) he may continue until his testimony is or may be prejudicial to the client (citing LE Op. 866, 1226, 1240, 1455). On the client-objection question, it held LE Op. 1468 applies only where a confidence or secret is protected by DR 4-101. A footnote overruled earlier opinions that had applied a subjective test to the DR 1-103 determination.

Currency note

This opinion was issued in 1993, under Virginia's former Code of Professional Responsibility (the disciplinary rules and ethical considerations it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. As the opinion's committee note observes, current Rule 8.3(a) requires reporting when the lawyer has "reliable information" about a breach. 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 opposing counsel who lied about a filing deadline?

A: Under this 1993 opinion, the successor lawyer may have a duty to report under DR 1-103(A), because making a knowing false statement that a suit was timely when it was filed seventeen days late violated DR 7-102(A)(5) and raised a substantial question as to fitness.

Q: What is the test for whether a violation must be reported?

A: The committee applied a two-prong test: the lawyer must have information that another lawyer committed a violation, and the violation must raise a substantial question as to fitness, judged by factors such as recency, seriousness, likelihood of repetition, effect on competence, and aggravating or mitigating circumstances.

Q: Does reporting opposing counsel disqualify the lawyer from the malpractice case as a witness?

A: Not by itself. The committee held the reporting duty does not make the lawyer one who obviously "ought to be" called as a witness for the client, and even if he "may be" called he can continue until his testimony becomes prejudicial to the client.

Q: Can the lawyer report over the client's objection?

A: The committee held that LE Op. 1468, addressing a client's instruction not to file, applies only where a confidence or secret is protected by DR 4-101.

Background and rules framework

The opinion interpreted former Virginia DR 1-102(A)(4), DR 1-103(A), DR 7-102(A)(5), and DR 5-102(A) and (B). The reporting duty is now in Virginia Rule 8.3, the dishonesty and false-statement bars in Rules 8.4(c) and 3.3, and the lawyer-as-witness rule in Rule 3.7.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 1-102(A)(4); DR 1-103(A); DR 7-102(A)(5); DR 5-102(A), (B); DR 7-104 (Code of Professional Responsibility)
• ABA Model Rule 8.3 (reporting misconduct); Model Rule 8.4 (misconduct); Model Rule 3.7 (lawyer as witness)

Other opinions cited:

• Virginia LE Op. 1004: the two-prong test for DR 1-103(A).
• Virginia LE Op. 1338: the duty attaches on a substantial degree of certainty.
• Virginia LE Op. 1429: false statements may also violate DR 1-102(A)(4).
• Virginia LE Op. 866, 1226, 1240, 1455: lawyer-as-witness analysis under DR 5-102.

See also

• VA LEO 1522: Misstating a Deed's Purchase Price
• VA LEO 1545: Reporting Opposing Counsel
• VA LEO 1562: Fee Arbitrators' Duty to Report

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1528.pdf

Original opinion text

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

Committee Opinion
May 11, 1993

LEGAL ETHICS OPINION 1528

OBLIGATION TO REPORT ATTORNEY
MISCONDUCT.

You have presented a hypothetical situation in which Attorney (P) is employed by a
law firm and is contacted by a client to represent him in a personal injury matter. The
client completes a one or two paragraph representation agreement and the client provides
the attorney with the operative facts, and documentation in the client's possession. The
claim relates to an accident on the client's employer's premises and the facts also indicate
possible negligence by two independent third parties. You state that P files a timely
worker's compensation claim but that he selects the date of the report as the date of injury
(i.e., accident occurs on January 1st, but the report of injury is noted as January 10th).
You also state that P continues to use the later date as the date of injury.
You indicate that P sends a letter and accompanying copy of a motion for judgment
("suit" or "lawsuit") to his client about ten days prior to the expiration of the statute of
limitations and affirmatively represents to the client that the lawsuit has been filed. You
state that P does not review the lawsuit with the client nor request that the client sign the
lawsuit papers.
You state that the lawsuit is not filed on the day the letter is written to the client and,
instead, is filed (by hand delivery) approximately seventeen days after the statute of
limitations has passed. You indicate that P later sends client a letter, after the suit is filed,
and fails to disclose that the statute of limitations has run.
You indicate that the defendants then each file answers asserting the statute of
limitations as an affirmative defense. The first defendant files a plea in bar and the matter
is heard before a judge. You state that it is believed that P represents to the court that the
clerk's office made a mistake which caused the suit to be filed late, although P does not,
however, provide any brief in opposition to the plea, or any documents, witnesses or
affidavits. The suit as to the first defendant is dismissed with prejudice because of the
statute of limitations. P notes a general objection without setting forth specific grounds to
support any appeal. No transcript is maintained.
You state that subsequently P tells his client that the suit has been "dismissed" and that
he gives client several options as to how to proceed. You also indicate that P does not
disclose to his client that he intends to pursue the case for the client. The client then
investigates the possibility of hiring new counsel. You indicate that P, however,
continues to represent the client without either his knowledge or consent.
The second defendant then files a plea in bar. Again, you indicate that it is believed that
P represents that the lawsuit was filed late due to a mistake by the clerk's office, but again
offers no exhibits, brief, witnesses or affidavits at the hearing. You indicate that the
remainder of the case as to the second defendant is dismissed with prejudice. Again, no
transcript is maintained. You state that P notes a general objection on the Order but fails
to preserve all possible grounds for appeal.
1. To the extent that earlier Legal Ethics Opinions reference a subjective test to be employed in a
lawyer’s determination as to DR 1-103, those references are hereby overruled. See, e.g., Legal
Ethics Op. Nos. 977, 1308, 1346, 1351; see also Legal Ethics Op. Nox. 1359, 1362, 1434, 1443.

Committee Opinion
May 11, 1993

Furthermore, you also state that P does not disclose the actions taken by him, or the
status of the case, to the client.
The client then retains another attorney to pursue a malpractice claim against P. The
second attorney (Attorney 2) investigates the claims and requests the file from P who
then releases part of the file, which includes a memorandum to the file drafted just prior
to release. You indicate that the memorandum sets forth P's account of events.
The second Attorney then undertakes an investigation of the client's claims and, as part
of the investigation, procures the complete court file which you indicate shows that the
suit was filed by hand delivery after the statute of limitations had run, even though a
cover letter is written by P on the date of the statute of limitations.
The second Attorney then interviews the clerk's office regarding procedures and the
facts as set forth in P's memorandum to the file. The judge who dismissed the case
against the first defendant is also interviewed. You state that the judge has a few notes
that state that there were no mitigating circumstances proved to justify defendant's plea.
You further indicate that the judge states that the case would not have been dismissed if P
had presented evidence to support his claim as to the clerk's mistake. You advise that the
second judge has not yet been interviewed. The new Attorney also contacts opposing
counsel for both defendants; both recall P having made representations as to the late
filing due to a clerk's mistake.
You state that P then produces a certified mail receipt in the package (file) produced to
the second Attorney and claims that it is the certified mail used to send the lawsuit to the
clerk's office. You also indicate that the receipt is undated and unsigned. Further, you
indicate that the first judge, when shown the receipt, states that the case would not have
been dismissed if such proof had been produced and corroborated.
The second Attorney then interviews the clerk's office regarding procedures and the
facts as set forth in P's memorandum to the file. The judge who dismissed the case
against the first defendant is also interviewed. You state that the judge has a few notes
that state that there were no mitigating circumstances proved to justify defendant's plea.
You further indicate that the judge states that the case would not have been dismissed if P
had presented evidence to support his claim as to the clerk's mistake. You advise that the
second judge has not yet been interviewed. The new Attorney also contacts opposing
counsel for both defendants; both recall P having made representations as to the late
filing due to a clerk's mistake.
You state that P then produces a certified mail receipt in the package (file) produced to
the second Attorney and claims that it is the certified mail used to send the lawsuit to the
clerk's office. You also indicate that the receipt is undated and unsigned. Further, you
indicate that the first judge, when shown the receipt, states that the case would not have
been dismissed if such proof had been produced and corroborated.

1. To the extent that earlier Legal Ethics Opinions reference a subjective test to be employed in a
   lawyer’s determination as to DR 1-103, those references are hereby overruled. See, e.g., Legal
   Ethics Op. Nos. 977, 1308, 1346, 1351; see also Legal Ethics Op. Nox. 1359, 1362, 1434, 1443.

Committee Opinion
May 11, 1993

The second Attorney investigates the receipt and determines that a receipt bearing that
number was received by the court a day before the running of the statute of limitations.
You indicate that the receipt is unsigned and undated and that only the back portion is
produced. Furthermore, you also indicate that there is no copy of the receipt in the
court file and it is unknown if the materials contained in the package received the day
before the running of the statute of limitations contained client's papers or other papers.
Finally, the second Attorney notifies P and P's firm, which previously did not have
notice, of the legal malpractice claim.
The appropriate and controlling Disciplinary Rules related to your inquiry are DR:1102(A)(4) which states that a lawyer shall not engage in conduct involving dishonesty,
fraud, deceit, or misrepresentation which reflects adversely on a lawyer's fitness to
practice law; DR:1-103(A) which provides that a lawyer having information indicating
that another lawyer has committed a violation of the Disciplinary Rules that 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; DR:5-102(A) and (B) which provide respectively that a lawyer may not
continue to serve as an advocate for his client when it is obvious that he or a lawyer in his
firm ought to be called as a witness on behalf of his client and, where a lawyer learns that
he or a lawyer in his firm may be called as a witness other than on behalf of his client, he
may continue the representation until it is apparent that his testimony is or may be
prejudicial to his client; DR:7-104 which prohibits a lawyer from presenting or
threatening to present criminal or disciplinary charges solely to obtain an advantage
in a civil matter; and DR:7-102(A)(5) which states that a lawyer shall not knowingly
make a false statement of law or fact.
On several questions related to the facts presented, the committee opines as follows:
1. You ask whether the second Attorney has a duty to report Attorney P's
misrepresentations to the Virginia State Bar. The facts you have provided
indicate that Attorney P represented to his client, opposing counsel, and
to the court that the suit had been filed before the running of the statute of
limitations. The facts also indicate that Attorney P filed the suit seventeen days after
the running of the statute of limitations and that he represented that the late filing
was due to a clerk's error. Finally, the facts indicate that the court file does not
support Attorney P's assertions. Based upon these facts, the committee is of the
opinion that Attorney P thus knowingly made a false statement of fact, in violation of
DR:7-102(A)(5). Such conduct may also be violative of DR:1-102(A)(4). See LE
Op. 1429.
The committee believes, then, that the second Attorney may have a duty to report
Attorney P's misconduct under DR:1-103(A).
Disciplinary Rule 1-103(A) contains a two-prong test. See LE Op. 1004. First, a
lawyer must have information indicating that another lawyer has committed a
1. To the extent that earlier Legal Ethics Opinions reference a subjective test to be employed in a
lawyer’s determination as to DR 1-103, those references are hereby overruled. See, e.g., Legal
Ethics Op. Nos. 977, 1308, 1346, 1351; see also Legal Ethics Op. Nox. 1359, 1362, 1434, 1443.

Committee Opinion
May 11, 1993

violation of the Disciplinary Rules. The committee is of the opinion that Attorney P's
conduct is violative of DR:7-102(A)(5); thus the committee believes that the first
prong has been satisfied.
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." Relevant factors to be considered include, but are not limited to, the
recency of the conduct, the seriousness of the conduct, the likelihood that the
behavior will be repeated, the likelihood that it will affect the attorney's competence
and any mitigating or aggravating circumstances. The committee is of the opinion
that Attorney P's knowingly representing to his client, opposing counsel, and to court
that the suit had been filed prior to the statute of limitations when, in fact, it had been
filed seventeen days after the statute's running, raises a substantial question as to his
fitness to practice law in other respects. /1
2. As to when an attorney's duty to report possible misconduct arises, the committee
believes that the duty attaches when the information possessed by the reporting
lawyer is based upon a substantial degree of certainty and not on rumors or
suspicion. See LE Op. 1338; Maine LE Op. 100 (October 4, 1989), ABA/BNA Law.
Man. on Prof. Conduct, 901:4208. In addition, the committee cautions that the
reporting lawyer must be vigilant in observing the DR:7-104 prohibition against
presenting or threatening to present disciplinary charges solely to obtain an
advantage in a civil matter.
3. You ask whether the affirmative duty to report P, if one exists, renders the second
Attorney a fact witness, thereby precluding that attorney from representing the client
in a malpractice lawsuit. The committee believes that the answer to this question
turns on whether or not the second Attorney either "ought to be" called as a witness
on behalf of his client ( DR:5-102(A)) or "may be" called on behalf of one other
than his client ( DR:5-102(3)). The committee does not believe it to be obvious that
the second Attorney "ought to be" called as a witness by his client simply by virtue
of the Attorney's obligation to report Attorney P's misconduct. Furthermore, even if
the second Attorney "may be" called as a witness under DR:5-102(B), he may
continue representation of his client until it is apparent that his testimony is or may
be prejudicial to his client. See LE Op. 866, LE Op. 1226, LE Op. 1240, LE Op.
1455.
4. Finally, regarding whether or not the second Attorney has an independent duty to
file a grievance if the client instructs him not to file, the committee believes that LE
Op. 1468 is applicable only where a confidence or secret is protected by DR:4-101.

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.
1. To the extent that earlier Legal Ethics Opinions reference a subjective test to be employed in a
lawyer’s determination as to DR 1-103, those references are hereby overruled. See, e.g., Legal
Ethics Op. Nos. 977, 1308, 1346, 1351; see also Legal Ethics Op. Nox. 1359, 1362, 1434, 1443.

Committee Opinion
May 11, 1993

Rule 8.3(a) requires a lawyer to report another lawyer’s ethics violation under certain
circumstances if the lawyer has “reliable information” about the breach.

1. To the extent that earlier Legal Ethics Opinions reference a subjective test to be employed in a
   lawyer’s determination as to DR 1-103, those references are hereby overruled. See, e.g., Legal
   Ethics Op. Nos. 977, 1308, 1346, 1351; see also Legal Ethics Op. Nox. 1359, 1362, 1434, 1443.