Liability for Failure to Report Misconduct

Many professionals are bound by a code of professional conduct.  Sure, we have to play by the rules but those rules may require that we ensure others do as well. In a recent opinion, the Supreme Court of Ohio Board of Professional Conduct considered the circumstances in which an attorney is required to report rule violations by others.  The Board addresses two specific questions in its opinion: (a) whether a lawyer prosecuting a malpractice case is obligated to report the defendant lawyer to the disciplinary authority and (b) whether the information acquired form the client regarding their prior lawyer’s conduct is privileged, thereby eliminating any duty to report.

The board noted that a lawyer is only obligated to report misconduct when the knowledge is unprivileged and it raises a question as to another lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.  The board added that in order to invoke the reporting requirement, the attorney must have actual knowledge that another lawyer has violated a rule of professional conduct.  However, a lawyer is not required to report misconduct where it would involve disclosure of privileged information, and may be prohibited from revealing confidential information related to the representation, including information protected by the attorney-client privilege without client consent.

Based on these standards, the board concluded that a lawyer who represents a client against the client’s prior lawyer has an ethical obligation under the rules of professional conduct to report the prior lawyer’s misconduct to the appropriate disciplinary authority if the knowledge is unprivileged and relates to honesty, trustworthiness, or fitness.  If a lawyer determines that he has a duty to report unprivileged knowledge of another lawyer’s misconduct, failure to report is itself a violation of the rules of professional conduct.

Professionals are expected to uphold a standard of ethical conduct both for themselves and others in their profession.  This expectation imposes an affirmative duty on professionals to report certain ethical violations by others.  Professionals who knowingly disregard another’s misconduct could expose themselves to liability through their own inaction.

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  1. Adam

    …if the knowledge “relates to honesty, trustworthiness, or fitness” to practice law. Sounds awfully broad. ABA model rule Rule8.3(a) is narrower; it requires the act to “raise a substantial question as to [another’s]… honesty, trustworthiness or fitness as a lawyer.” Moreover, the ABA Ethics Committee advised in 1994 that threats by one attorney to report another, to obtain an advantage in a civil case, may not be used for bargaining purposes, for the simple reason that the lawyer is ethically required to report such conduct. In the midst of a legal malpractice claim, how do we reconcile these rules? How does the reporting attorney not automatically become the object of a grievance himself?

  2. It would seem that during the pendency of the legal malpractice case that facts are still being developed that may, or would, have a direct bearing on whether the “offending” attorney engaged in conduct that is reportable. As a result the duty to report is not “ripe” until after the legal mal case is concluded in my opinion.

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