Must a lawyer tell a client she can file a bar complaint against opposing counsel, and must the lawyer report opposing counsel's misconduct, before the case is over?

Plain-English summary

An attorney represented a mother in a long-running interstate custody fight. The mother told the attorney that, while she was unrepresented, the father's lawyer had induced her to sign a very disadvantageous consent order through misrepresentations, and she asked whether a state agency could give her recourse. The attorney had not told the client she could complain to the Virginia State Bar. The committee was asked four questions: whether the attorney had to tell the client about the complaint process, whether the attorney could wait until the litigation ended to do so, whether the attorney had to report the father's lawyer's conduct, and whether the attorney could wait until the litigation ended to report.

The controlling rules were DR 1-103(A) (duty to report another lawyer's misconduct that raises a substantial question as to fitness, except as provided in DR 4-101), DR 6-101(B) (attend promptly to matters undertaken for a client), and DR 6-101(C) (keep a client reasonably informed).

The committee concluded that the attorney had an obligation under DR 6-101(C) to inform the client she could make a bar complaint, because information about available recourse against opposing counsel related to the matter for which the attorney was retained. It further concluded that the attorney could not wait until the litigation ended to tell the client, since DR 6-101(B) requires prompt attention and the decision whether to proceed belonged to the client. On reporting, the committee held that the duty under DR 1-103(A) attaches only when the reporting lawyer's information rests on a substantial degree of certainty, not rumor or suspicion (citing LE Op. 1338, 1528, 1468), and only if the information is not a client confidence or secret under DR 4-101; it cautioned the reporting lawyer to observe the DR 7-104 prohibition against threatening disciplinary charges solely to gain advantage in a civil matter. If the duty attached, the attorney had to report without unnecessary delay, with a single exception where filing would intentionally prejudice or damage the client (DR 7-101(A)(3); LE Op. 1338).

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. 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 tell a client she can file a bar complaint against opposing counsel?

A: Under this 1993 opinion, yes. The committee held that DR 6-101(C)'s duty to keep the client reasonably informed reached information about the client's available recourse against opposing counsel, because it related to the matter the attorney was handling.

Q: Can the lawyer wait until the case is over to tell the client about the complaint process?

A: No. The committee held that DR 6-101(B) requires prompt attention, that there was no valid reason to delay, and that whether to proceed against opposing counsel was the client's decision to make.

Q: When does a lawyer have to report opposing counsel's misconduct?

A: The committee held that the DR 1-103(A) duty attaches only when the information rests on a substantial degree of certainty (not rumor or suspicion) and is not a client confidence or secret under DR 4-101; if it attaches, the lawyer must report without unnecessary delay, unless reporting would intentionally prejudice the client.

Q: What about threatening to report opposing counsel during the civil case?

A: The committee cautioned that the reporting lawyer must observe DR 7-104's prohibition against presenting or threatening to present disciplinary charges solely to obtain an advantage in the civil matter.

Background and rules framework

The opinion interpreted former Virginia DR 1-103(A) (reporting misconduct), DR 6-101(B) and (C) (diligence and keeping the client informed), DR 7-104 (threatening disciplinary charges for civil advantage), DR 7-101(A)(3) (not intentionally prejudicing the client), and DR 4-101 (confidences and secrets). The reporting duty is now carried forward in Virginia Rule 8.3, and the duties to communicate with and diligently serve the client in Rules 1.4 and 1.3.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 1-103(A); DR 6-101(B), (C); DR 7-104; DR 7-101(A)(3); DR 4-101 (Code of Professional Responsibility)
• ABA Model Rule 8.3 (reporting misconduct); Model Rule 1.4 (communication); Model Rule 1.3 (diligence)

Other opinions cited:

• Virginia LE Op. 1144: prompt attention to client matters.
• Virginia LE Op. 1338, 1528, 1468: the duty to report attaches only on a substantial degree of certainty, and then without unnecessary delay.

See also

• VA LEO 1562: Fee Arbitrators' Duty to Report
• VA LEO 1646: Reporting Misconduct in a Civil Case
• VA LEO 1582: Part-Time Prosecutor's Threatening Letter

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1545.pdf

Original opinion text

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

Committee Opinion
August 12, 1993
LEGAL ETHICS OPINION 1545

DUTY TO REPORT MISCONDUCT;
THREATENING DISCIPLINARY
CHARGES.

You have presented a hypothetical situation in which an attorney represents a mother,
who was the custodial parent of a daughter. On January 1, 1991, the father, living in
California, refused to return the daughter from visitation. The mother went to California
and successfully sued in the California courts to get her daughter back (The California
courts also held that custody jurisdiction was in Virginia). The client/mother told the
attorney that she had spent all her money on expenses related to the California litigation,
having returned to Virginia impoverished, moved in with her parents but moved out again
when her father was laid off from his job. The client then lost her own job and was left
without funds or a place to live.
The client has related to the attorney that the father's Virginia lawyer then approached
her and represented that the father could take the daughter temporarily while the mother
found a job. You state that the client was unrepresented at this time and that the client
alleges that the father's attorney induced her to sign a consent order by means of
numerous misrepresentations. You indicate that the juvenile court consent order that the
client signed was extremely disadvantageous to her, giving her very little, and barely
enforceable, visitation. The client also has told the attorney that when she tried to insist
on provisions which would allow her communication with the child and specified means
and dates for making travel arrangements, the father's attorney told her that the inclusion
of such clauses was not customary because of her obvious right to such communication.
Immediately upon entry of the order, the father began denying the mother both visitation
and communication with the child.
The mother then began litigation to get the order reversed. The mother employed two
previous attorneys, but neither of them was successful in even getting the matter to trial.
Your facts indicate that, since that time, the father has used various delaying tactics to
prevent trial. The attorney has recently been retained to appeal a juvenile court ruling
which held that because of the child's lengthy stay there, California, rather than Virginia,
should now hear the case. The appeal will be heard in circuit court.
The client/mother has volunteered the unsolicited opinion that the father's lawyer's
overreaching conduct by means of misrepresentations is unethical. The client has asked
the attorney whether or not there is a state agency which could provide her recourse or
provide a forum for her complaints. The attorney has not told that client that she may
pursue a complaint with the Virginia State Bar.
You have asked the committee to opine under the facts of the inquiry, (1) whether the
attorney has an obligation to tell the client that she may make a complaint to the Virginia
State Bar; (2) whether the attorney may wait until the current litigation is completed
before telling the client how she can report an alleged ethics violation to the Bar; (3)
whether the attorney has an obligation to report the father's lawyer's conduct, since

Committee Opinion
August 12, 1993
the attorney does not know the other lawyer and was not then representing the client at
the time of the alleged misconduct; and (4) whether, assuming the attorney's obligation to
report, the attorney may wait until the completion of the litigation to report the father's
lawyer's conduct.
The appropriate and controlling Disciplinary Rules related to your inquiry are DR:1103(A) which requires 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:6-101(B)
which states that a lawyer shall attend promptly to matters undertaken for a client until
completed or until the lawyer has properly and completely withdrawn from representing
the client; and DR:6-101(C) which states that a lawyer shall keep a client reasonably
informed about matters in which the lawyer's services are being rendered.
The committee responds to your inquiries relative to the facts you have presented as
follows:
1. The committee is of the opinion that the attorney has an obligation, under DR:6101(C), to inform the client that she may make a complaint to the Virginia State Bar.
Since the attorney is required to keep his client reasonably informed about matters in
which his services are being rendered, the committee believes that information as to
available recourse the client may have against opposing counsel is related to the
matters for which the attorney has been retained.
2. The committee is similarly of the opinion that the attorney may not wait until the
completion of the current litigation before informing the client as to the Bar
complaint process. Under DR:6-101(B), an attorney shall promptly attend to matters
undertaken for a client, which would otherwise prejudice the client's rights if
unattended. See also LE Op. 1144. The committee further believes that there is no
valid reason to delay informing client of the complaint process and that, in any case,
it is the client's decision whether or not to proceed against opposing counsel.
3. As to whether or not the attorney has an obligation to report the father's lawyer's
alleged misconduct, the committee refers to DR:1-103(A). Under that Rule, an
attorney 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 Bar.
You state, however, that the attorney does not know the father's lawyer and that the
alleged misconduct occurred prior to his representation of the client/mother. Your facts,
then, raise doubts as to the certainty of the attorney's information regarding the father's
lawyer's conduct. The committee has previously opined that the duty to report attorney
misconduct attaches when the information possessed by the reporting lawyer is based
upon a substantial degree of certainty and not on rumors and suspicion. See LE Op. 1338,

Committee Opinion
August 12, 1993
LE Op. 1528. The committee opines, then, that if the attorney's information is based upon
a substantial degree of certainty, and if the information is not construed to be a secret or
confidence under DR:4-101, he has an obligation to report the father's lawyer's alleged
misconduct. See LE Op. 1468.
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.
4. As to whether the attorney may wait until the completion of the civil litigation to
report the ethical violation, the committee believes that LE Op. 1338 is dispositive in
that it opines that should an attorney conclude both that opposing counsel's conduct
is in fact improper and that the impropriety raises a substantial question as to his
fitness to practice law in other respects, the attorney is obligated to report such
misconduct without any unnecessary delay. A singular exception to the obligation
would exist if the filing of such a complaint would constitute the attorney's
intentionally prejudicing or damaging of his client during the course of the
professional relationship. See DR:7-101(A)(3); LE Op. 1338.
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.