Must a prosecutor report lawyers who admitted, sometimes under immunity, to using or possessing cocaine, when that admission says nothing else about their practice?

Plain-English summary

A prosecutor asked whether he had an obligation under DR 1-103(A) to report attorney misconduct involving lawyers who had admitted using or possessing cocaine, where the admissions were made to authorities outside the grand jury and in some cases under a grant of immunity.

The committee worked through DR 1-102(A)(3), which bars a lawyer from committing a crime or other deliberately wrongful act that reflects adversely on fitness to practice law. Lawyers who admitted, during a criminal investigation or under immunity, to using or possessing cocaine had admitted to criminal conduct that may constitute a misdemeanor or felony, and so had admitted to a crime or deliberately wrongful act. On the facts presented, the committee believed the admission to using or possessing cocaine while a licensed attorney reflected adversely on fitness to practice, satisfying the two-prong test of DR 1-102(A)(3).

The committee then applied DR 1-103(A), under which a lawyer with information that another lawyer has violated a disciplinary rule raising a substantial question as to fitness must report it to the appropriate authority, except as provided in DR 4-101. The committee said the second prong, whether the violation raises a substantial question as to fitness, is a subjective determination made by the reporting lawyer, and on these facts it opined that such a substantial question existed, so the misconduct should be reported to the State Bar. The committee added that the U.S. Attorney's office should advise that a grant of immunity does not extend to administrative actions against the attorney, and noted the Lawyers Helping Lawyers program jointly sponsored by the Virginia State Bar and the Virginia Bar Association to address substance abuse and related impairment. The committee note records that under current Rule 1.6(c)(3) a lawyer may report only with client consent where the information is a client confidence.

Currency note

The Virginia State Bar's editor's note records that this opinion was overruled in part by LE Op. 1528 (see footnote 1 of the opinion for scope) and cross-references LE Op. 1004. It was issued in 1987, under Virginia's former Code of Professional Responsibility (the disciplinary rules it cites), before the adoption of the Rules of Professional Conduct effective January 1, 2000. 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: Did a lawyer's admission to cocaine use have to be reported to the bar?

A: Under this 1987 opinion, on the facts presented, yes. The committee found the admission violated DR 1-102(A)(3) and raised a substantial question as to fitness, triggering the report duty under DR 1-103(A).

Q: Who decides whether the violation raises a "substantial question" as to fitness?

A: The committee called it a subjective determination made by the lawyer who would report the misconduct.

Q: Did a grant of immunity affect the duty?

A: The committee said immunity in a criminal investigation does not extend to administrative actions against the attorney, and advised the U.S. Attorney's office to make that clear when granting immunity.

Background and rules framework

The opinion interpreted former Virginia DR 1-102(A)(3) (committing a crime or deliberately wrongful act reflecting on fitness) and DR 1-103(A) (duty to report another lawyer's misconduct, the counterpart of ABA Model Rule 8.3), subject to DR 4-101 on confidences. 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 misconduct; counterpart of ABA Model Rule 8.3)
• Former Virginia DR 1-102(A)(3) (crime or deliberately wrongful act reflecting on fitness; counterpart of ABA Model Rule 8.4)
• Former Virginia DR 4-101 (client confidences and secrets)
• Virginia Rule 1.6(c)(3) / ABA Model Rule 1.6 (confidentiality; reporting with client consent)

Other opinions cited:

• LE Op. 1004: cross-referenced on the duty to report
• LE Op. 1528: overrules this opinion in part (per the editor's note)

See also

• VA LEO 1004: When a Lawyer Must Report Another Lawyer's Crime
• VA LEO 1528: Duty to Report a Lawyer's False Statements
• VA LEO 1093: Duty to Disclose Fraud to a Tribunal and Report Co-Counsel

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0977.pdf

Original opinion text

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

Committee Opinion
October 7, 1987
LEGAL ETHICS OPINION 977

DUTY TO REPORT MISCONDUCT –
SUBSTANCE ABUSE.

A prosecutor inquired as to whether he has an obligation under DR:1-103(A) to report
attorney misconduct involving attorneys who have admitted using or possessing cocaine
to authorities outside the grand jury and in some cases under a grant of immunity.
DR:1-102(A)(3) states that “a lawyer shall not commit a crime or other deliberately
wrongful act that reflects adversely on a lawyer's fitness to practice law.” Attorneys who
have admitted, in the course of a criminal investigation or under a grant of immunity, to
either the use or possession of cocaine have admitted to criminal conduct whether at the
state or federal level which may constitute a misdemeanor or felony. The committee
believes that an attorney who admits to such criminal conduct while licensed to practice
law in the State of Virginia has admitted to “a crime or other deliberately wrongful act.”
The committee further believes under the factual circumstances presented to the
committee that the admission to the use or possession of cocaine while a licensed
attorney reflects adversely on a lawyer's fitness to practice law. Thus, the two prong test
of DR:1-102(A)(3) has been satisfied.
Once DR:1-102(A)(3) is satisfied, the lawyer must then turn to DR:1-103(A). DR:1103(A) states: “A lawyer having information indicating that another lawyer has
committed a violation of a disciplinary rule that raises a substantial question as to the
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.” A two prong test is
established. First, it must be determined whether the conduct of a lawyer violated one of
the disciplinary rules under the Virginia Code of Professional Responsibility. Since it has
been determined that DR:1-102(A)(3) has been violated, it must then be determined
whether the violation of that disciplinary rule “raises a substantial question as to that
lawyer's fitness to practice law in other respects.” This is a subjective determination to be
made by the lawyer who will report the misconduct. Under the factual circumstances
presented, the committee opines that there is a substantial question as to a lawyer's fitness
to practice law who has violated DR:1-102(A)(3) for having admitted to the use or
possession of cocaine while licensed to practice law in the state of Virginia. Since the
tests of DR:1-102(A)(3) and DR:1-103(A) are answered in the affirmative, the committee
believes the misconduct of the attorney should be reported to the State Bar.
The Committee feels strongly that when considering granting immunity to a lawyer
who is part of an investigation, the U.S. Attorney's office should advise that the grant of
immunity in no way extends to possible administrative actions which may be brought
against the attorney for any admissions of crimes or other deliberately wrongful acts
which adversely reflect on that lawyer's fitness to practice law.
The Committee also advises that the Lawyers Helping Lawyers program jointly
sponsored by the Virginia State Bar and the Virginia Bar Association exists to combat

Committee Opinion
October 7, 1987
substance abuse within the profession by assisting the lawyers and correcting any related
professional impairment. [DR:1-102(A)(3); DR:1-103(A)]
Committee Opinion
October 7, 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.
Editor’s Note. – See also L E Op. No. 1004. Overruled in part by L E Op. No. 1528.
See footnote 1 of the opinion for scope.