Must a lawyer report another lawyer's misconduct right away even though a related civil case is still pending, or wait until the civil case ends to avoid looking like leverage?

Plain-English summary

Attorney A and his firm were defendants in a malpractice action that had been nonsuited and was expected to be refiled. While the suit was pending, the plaintiff, with substantial help from the plaintiff's attorney, filed a bar complaint against Attorney A on the same matters. The plaintiff's attorney then sought a settlement and offered, in exchange, to withdraw the bar complaint. Attorney A believed this offer violated DR 7-104 and that he had to report it under DR 1-103, but worried that reporting might itself look improper because the plaintiff's attorney intended to refile the civil suit. The committee was asked whether Attorney A had to report the misconduct immediately or wait until the malpractice claim concluded.

The controlling rules were DR 7-104(A) (no presenting, participating in presenting, or threatening criminal or disciplinary charges solely to obtain an advantage in a civil matter) and DR 1-103(A) (duty to report misconduct that raises a substantial question as to a lawyer's honesty, trustworthiness, or fitness). The committee took as given that Attorney A had already concluded the settlement offer violated DR 7-104(A) and that the conduct met the two-prong test under DR 1-103(A), so the only issue was the timing of the report.

Citing LE Op. 1635, 1338, and 1548, the committee restated that once a reporting attorney determines both prongs of DR 1-103(A) are met, the attorney is obligated to report the misconduct without any unnecessary delay. It acknowledged that a lawyer's subjective intent in threatening or presenting charges while a civil matter is pending can be hard to determine and requires a case-by-case factual analysis (LE Op. 1388). It cautioned that a report made while the malpractice claim is unresolved is rendered suspect so long as there is a possibility the reporting lawyer would gain an advantage in the simultaneous claim. But assuming the reporting lawyer's motive is to discharge the DR 1-103 obligation, and not solely to use or threaten the bar complaint for settlement leverage, the committee concluded DR 7-104 does not require Attorney A to wait until the malpractice claim settles or concludes before reporting.

Currency note

This opinion was issued in 1995, 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 wait until a pending civil case ends before reporting another lawyer's misconduct?

A: Under this 1995 opinion, no. The committee concluded that once both prongs of the reporting rule are met, the lawyer must report without unnecessary delay and need not wait for a pending malpractice claim to conclude.

Q: Does reporting during a pending civil suit risk violating the rule against threatening charges for civil advantage?

A: The committee said it can look suspect: a report made while the related claim is unresolved is questionable so long as the reporting lawyer could gain an advantage. The key is motive, and whether the report is meant solely to gain leverage is a case-by-case factual question.

Q: What makes a report permissible despite a pending civil claim?

A: The committee held the report is proper if the lawyer's motive is to discharge the reporting duty under DR 1-103, rather than to use or threaten the complaint solely for settlement leverage in the civil matter.

Background and rules framework

The opinion interpreted former Virginia DR 1-103(A) (duty to report misconduct raising a substantial question as to honesty, trustworthiness, or fitness) against DR 7-104(A) (no threatening or presenting disciplinary charges solely for civil advantage). Those provisions are now carried forward in Virginia Rule 8.3 (reporting professional misconduct) and the litigation-conduct limits in Rule 3.4.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 1-103(A); DR 7-104(A) (Code of Professional Responsibility)
• ABA Model Rule 8.3 (reporting misconduct); Model Rule 3.4 (fairness to opposing party)

Other opinions cited:

• Virginia LE Op. 1635: a DR 7-104 violation may give rise to a duty to report; report without unnecessary delay once both prongs are met.
• Virginia LE Op. 1338, 1548, 1582, 1528: reporting obligation and its timing.
• Virginia LE Op. 1388: subjective intent in threatening charges is a case-by-case factual determination.

See also

• VA LEO 1635: Secret Recording, Reporting, and Threats
• VA LEO 1840: Fraudulent Deed and Duty to Report
• VA LEO 1753: Threatening Charges in Collections

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1646.pdf

Original opinion text

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

Committee Opinion
September 8, 1995
LEGAL ETHICS OPINION 1646

DUTY TO REPORT MISCONDUCT,
SHOULD ATTORNEY REPORT
MISCONDUCT WHILE CIVIL MATTER
ONGOING.

You have presented a hypothetical situation in which Attorney A and his firm were
defendants in a malpractice action. This matter was nonsuited, and plaintiff's attorney has
stated that the lawsuit will be refiled. While the civil lawsuit was pending, the plaintiff in
that action, with substantial assistance from his attorney, filed a Bar complaint against
Attorney A, alleging the same matters which were the subject of the malpractice suit.
While the Bar complaint was still under investigation, plaintiff's attorney sought
settlement from Attorney A and offered in return to withdraw plaintiff's Bar complaint
against Attorney A. Attorney A believes this is a violation of DR:7-104 which he must
report as required by DR:1-103, but is concerned that he may violate DR:7-104 in doing
so since plaintiff's attorney has stated an intention to refile the civil suit against Attorney
A.
Under the facts you have presented, you have asked the committee to opine whether
Attorney A must immediately report the misconduct of plaintiff's attorney to the Virginia
State Bar, or must wait until the conclusion of the malpractice claim before reporting the
misconduct so as to avoid a violation of DR:7-104.
The appropriate and controlling disciplinary rules relative to your inquiry are DR:7104(A) which states that a lawyer shall not present, participate in presenting, or threaten
to present criminal or disciplinary charges solely to obtain an advantage in a civil matter;
and DR:1-103(A) which requires an attorney to report the misconduct of another lawyer "
... that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness
to practice law in other respects .... "
The committee has previously and repeatedly opined that misconduct in violation of
DR:7-104 may give rise to an obligation for an attorney to report such matters to the
appropriate professional authority. LE Op.1528, LE Op. 1582 and LE Op. 1635.
Based on the facts presented, you have already concluded that plaintiff's attorney's
settlement offer violates DR:7-104(A) and you do not seek an opinion from the
committee in that regard. Further, under the facts presented you have likewise concluded
that the misconduct meets the two-prong test under DR:1-103(A) for reporting the matter
to the Virginia State Bar. See, e.g., LE Op. 1004. The committee's premise is, therefore,
that the sole issue consists of the timing of such a report to the Bar.
In LE Op. 1635 the committee addressed the issue of when misconduct must be
reported, given the tension between DR:1-103(A) and DR:7-104(A) and the reporting
attorney's concern that he might be viewed as filing a report of misconduct to obtain a
civil advantage. The committee referred to its prior opinions in LE Op. 1338 and LE Op.
1548 stating that once the reporting attorney determines that both prongs of DR:1-103(A)

Committee Opinion
September 8, 1995
are met, "the attorney is obligated to report such misconduct without any unnecessary
delay."
The committee observes that it may be difficult, in some instances, to determine the
subjective intent or motive of an attorney who threatens or presents criminal or
disciplinary charges against an opposing counsel while a civil matter is contemplated or
pending. The issue requires a factual case-by-case determination. LE Op. 1388.
If Attorney A reports the misconduct while the malpractice claim is pending or
unresolved, then the report of misconduct is rendered suspect as long as there is a
possibility that Attorney A would gain an advantage in the simultaneously pending
malpractice claim. However, assuming that the motive of Attorney A and his firm in
reporting the misconduct is to discharge their obligation under DR:1-103, and not solely
to use or threaten the Bar complaint for leverage to settle or conclude the malpractice
claim, then Attorney A is not required under DR:7-104 to wait until the settlement or
conclusion of the malpractice claim before reporting the misconduct.
Committee Opinion
September 8, 1995
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.