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Formal Opinion 1990-3

May 4, 1990

ACTION: Formal Opinion


This opinion addresses the requirement of DR 1-103(A) of the Lawyer's Code of Professional Responsibility (the "Code"), as recently amended, n1 that: "A lawyer possessing knowledge, not protected as a confidence or secret, of a violation of DR 1-102 that raises a substantial question as to another lawyer's honesty, trustworthiness or fitness in other respects as a lawyer shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation." n2 The opinion will explore how this amendment clarifies the intended scope of the rule, in some respects in conformity with interpretations of the predecessor rule by this Committee and in some respects at variance with those prior interpretations.

n1 This and numerous other amendments to the Code have been approved by the Appellate Divisions in all four departments and will become effective September 1, 1990.

n2 Formerly, DR 1-103(A) provided: "A lawyer possessing unprivileged knowledge of a violation of DR 1-102 shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation."

DR 1-103(A), both as amended this year and as originally adopted in 1970, imposes a mandatory reporting obligation. A lawyer possessing "knowledge" of another lawyer's misconduct that comes within the scope of the rule is obligated to report that misconduct to an appropriate disciplinary authority; failure to do so is itself an ethical violation. While the broad reporting requirement of the earlier version of DR 1-103(A) had proved difficult to enforce, see Annotated Model Rules of Professional Conduct 347 (1984), disciplinary proceedings for failure to report misconduct by another lawyer have been instituted on occasion, and a recent decision by the Illinois Supreme Court suspending a lawyer from practice for one year for failing to comply with DR 1-103(A) may augur increasingly vigilant enforcement of the rule, see In Re Himmel, 125 Ill. 2d 531, 533 N.E.2d 790 (1989). The amendment of DR 1-103(A) in no way compromises the Code's commitment in principle to mandatory reporting, but the amended rule both refines the standard of knowledge required to trigger the obligation to report misconduct of another lawyer and narrows the class of misconduct that must be reported. We believe that the amended rule is likely to provide a more effective self-policing mechanism for the legal profession that should assist in maintaining ethical standards.

We analyze the new DR 1-103(A) as a series of qualifications on the essentially unrestricted duty to report another lawyer's misconduct that was imposed prior to amendment. Indeed, the rule's true scope becomes evident only by reference to its narrowing clauses and implicit qualifications.

A. The Degree of Certainty Required to Constitute Knowledge

What constitutes "knowledge" sufficient to trigger the reporting obligation of DR 1-103(A) is not apparent from the text of the rule. This Committee has previously held, and continues to believe, that there is no obligation under DR 1-103(A) to report mere suspicion of misconduct by another lawyer. N.Y. City 82-79; N.Y. City 80-42. Our prior opinions have recognized that a report to a disciplinary authority charging another lawyer with misconduct is "a serious charge that should not be undertaken lightly." N.Y. City 80-42; see also N.Y. State 480 (1977) ("[A] lawyer should . . . refrain from casting unwarranted aspersions upon the conduct of other members of the Bar.") Given the serious personal and professional consequences to the other lawyer of a report charging him or her with misconduct, the "knowledge" requirement in DR 1-103(A) should be construed to require a basis for clearly believing that misconduct has in fact occurred before the rule's reporting obligation is triggered. EC 1-4 states:

A lawyer should reveal voluntarily . . . all unprivileged knowledge of conduct of lawyers which he believes clearly to be in violation of the Disciplinary Rules. (Emphasis added.)

Our prior opinions have relied on EC 1-4 as support for the proposition that DR 1-103(A) requires "actual knowledge" of professional misconduct. N.Y. City 82-79; N.Y. City 80-42.

Useful guidance in giving meaning to the requirement of "knowledge" in DR 1-103(A) can be found in Doe v. Federal Grievance Committee, 847 F.2d 57 (2d Cir. 1988). The Second Circuit, in analyzing the analogous disclosure obligation imposed by DR 7-102(B) to reveal fraud to a tribunal, held that a lawyer must disclose only information he "reasonably knows to be a fact" and which "clearly establishes" the existence of a fraud. Id. at 62. The court stated that "proof beyond a moral certainty" was not required, but that a lawyer "must clearly know, rather than suspect, that a fraud on the court has been committed before he brings this knowledge to the court's attention." Id.; see also ABA Informal Op. 1379 (1976); N.Y. State 480 (1977). n3 Studious ignorance of readily accessible facts is, however, the functional equivalent of knowledge. C. Wolfram, Modern Legal Ethics � 13.3.3, at 695-96 (1986); see United States v. Maniego, 710 F.2d 24, 28 (2d Cir. 1983). While a lawyer is not free to turn a blind eye to reality, the Committee believes that a lawyer must be in possession of facts that clearly establish a violation of one or more Disciplinary Rules by another lawyer before an obligation arises under DR 1-103(A) to make a report.

n3 The fact that a lawyer has filed a complaint in court on behalf of a client against another lawyer which satisfies the threshold requirements of Rule 11 of the Federal Rules of Civil Procedure or Section 130.1 of the Uniform Rules for the New York State Trial Courts does not in and of itself establish that the lawyer possesses actual "knowledge" of misconduct that would trigger the disclosure obligation of DR 1-103(A). The Disciplinary Rule requires a higher level of knowledge than that required to avoid the judicial imposition of costs or sanctions.

B. The Types of Misconduct that Must Be Reported

Like the preexisting rule, amended DR 1-103(A) defines a lawyer's misconduct by reference to DR 1-102(A). n4 However, the amended rule limits the misconduct subject to the reporting requirement by requiring "that [it] raise [] a substantial question as to another lawyer's honesty, trustworthiness or fitness in other respects as a lawyer. . . ." (Emphasis added.) This constitutes both a clarification of the scope of the reporting requirement and a narrowing of the category of misconduct subject to obligatory reporting. We note that the definition of misconduct that must be reported has two distinct elements: (1) the misconduct must raise a "substantial" question, and (2) that question must bear on a lawyer's "fitness" to practice law.

n4 DR 1-102(A), expressly referred to in DR 1-103(A) as defining misconduct subject to the reporting obligation, provides:

A lawyer shall not:

1. Violate a Disciplinary Rule.

2. Circumvent a Disciplinary Rule through actions of another.

3. Engage in illegal conduct involving moral turpitude.

4. Engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

5. Engage in conduct that is prejudicial to the administration of justice.

6. Unlawfully discriminate in the practice of law, including in hiring, promoting or otherwise determining conditions of employment, on the basis of age, race, creed, color, national origin, sex, disability, or marital status.

7. Engage in any other conduct that adversely reflects on the lawyer's fitness to practice law.

Subsection 6 is new, see Gross, Amendments to New York's Code of Professional Responsibility - Part I, N.Y.L.J. March 8, 1990, at 4 (col. 6), 6 (col. 3); subsection 7 is former subsection 6.

The source of the change is stated in the notes accompanying the October 5, 1987 draft of the proposed amendments to the Code approved by the House of Delegates of the New York State Bar Association:

The phrase "that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness in other respects as a lawyer" which has been added to subdivision (A) is drawn from Model Rule 8.3(A) (Reporting Professional Misconduct) to limit the reporting of misconduct to serious matters.

The annotations to Model Rule 8.3(a) reveal that its less expansive reporting requirement was adopted because the unqualified obligation imposed by DR 1-103(A) had proved to be unenforceable. Recognizing fully the importance of a reporting requirement to protect the public from misconduct engaged in by other members of the Bar, the Model Rules pragmatically chose one that lawyers would honor. The drafters found that the unqualified duty to report under former DR 1-103(A) was so widely disregarded that the rule effectively had become a "dead letter." At the same time, the drafters of the Model Rules cited studies showing that "most lawyers will report serious breaches of professional responsibility." See Note, The Lawyer's Duty to Report Professional Misconduct, 20 Ariz. L. Rev. 509, 515-16 (1978). The following articulation appears in the commentary accompanying Model Rule 8.3(a): "This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule." Annotated Model Rules of Professional Conduct 346 (1984).

Adoption of the "substantial question" formulation of Model Rule 8.3(a) and citation to that rule in the notes accompanying the proposed amendments to the Code evince an intention that the reporting requirement imposed by the newly amended DR 1-103(A) be subject to the same "measure of judgment." In making a judgment as to whether a substantial question concerning another lawyer's "honesty, trustworthiness or fitness in other respects as a lawyer" has been presented, the seriousness of the misconduct -- not the sufficiency of evidence that misconduct has occurred (see Part A, supra) -- is to be considered. The amendment of DR 1-103(A) to restrict its application to serious infractions of the Disciplinary Rules should also serve to intensify efforts to enforce the rule. That, in fact, seems to have been the principal rationale for amending DR 1-103(A), namely, to define a sensible rule of mandatory reporting that would invigorate prosecution of professional misconduct.

C. Categories of Knowledge Exempted from the Obligation to Report

DR 1-103(A), as amended, exempts from the obligation to report misconduct of another lawyer knowledge that is protected as a confidence or secret of a client. This represents a significant departure from the former rule, which exempted from the reporting requirement not confidences and secrets but "privileged" information. The notes accompanying the proposed amendments to the Code state that the change was enacted "to clarify" that both confidences and secrets are exempted, not just information protected by the attorney-client privilege. Opinions of this Committee prior to the amendment of DR 1-103(A) construed the rule as not exempting the broader range of information encompassed within the definition of "secret" in DR 4-101(A). See N.Y. City 82-79; N.Y. City 81-40. These earlier opinions were based on the definitions of "confidence" and "secret" in the Code. DR 4-101(A) defines a "confidence" as "information protected by the attorney-client privilege under applicable law. . . ." Former DR 1-103(A)'s requirement that "unprivileged knowledge" of another lawyer's violation of DR 1-102 be reported thus clearly exempted "confidences" from the reporting obligation. But that exemption did not reach "secrets," a category of information defined far more broadly in DR 4-101(A): "'secret' refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would likely to be detrimental to the client."

The inclusion of "secrets" in the category of information exempted from the reporting requirement of DR 1-103(A) is again a recognition of reality. Regardless of the literal reading of the rule, a lawyer was unlikely to report another lawyer's misconduct if doing so required the lawyer to disclose a "secret" to the likely detriment of the lawyer's client. Moreover, amending DR 1-103(A) to exclude from the reporting obligation information protected as a "secret" under Canon 4 eliminates an inconsistency in the Code. A lawyer possessing knowledge that a client admitted to the Bar had perpetrated a fraud, which knowledge the lawyer gleaned from a "secret," was obliged to disclose that fraud to the appropriate disciplinary authorities under former DR 1-103(A) and DR 1-102(A)(4). However, the lawyer was not required to disclose such a fraud to the affected persons or tribunal under DR 7-102(B)(1). In sum, former DR 1-103(A) was inconsistent in both letter and spirit with another provision of the Code concerning the disclosure of "secrets."

D. Clarification as to the Exemption of Self-Reporting

Former DR 1-103(A) was susceptible to an interpretation that a lawyer was obligated to report his or her own misconduct because the attorney-client privilege could not be invoked by a lawyer on his or her own behalf. The difficulty with such an interpretation was that it ignored the privilege against self-incrimination. The ABA Committee on Ethics and Professional Responsibility opined that "unprivileged information" in former DR 1-103(A) should be read to exclude information protected by the privilege against self-incrimination. ABA Informal Op. 1279 (1973). As amended, DR 1-103(A) eliminates any question on this point by providing expressly that only knowledge of professional misconduct by "another lawyer" is subject to the reporting requirement.

E. Considerations as to the Timing of Required Disclosures

If a lawyer determines that he or she possesses knowledge of misconduct by another lawyer that must be reported under DR 1-103(A), generally the lawyer would be obligated to report that knowledge to the appropriate departmental disciplinary authority n5 promptly. This Committee previously has addressed the question of whether it is permissible to delay reporting misconduct of another lawyer in order to protect the interests of a client. We determined that, notwithstanding a lawyer's duty under Canon 7 to represent a client loyally and zealously and to avoid prejudicing the client's interest, "a report of misconduct must be made promptly upon discovery in order to protect the public." N.Y. City 82-79.

n5 DR 1-103(A) speaks of making the requisite report "to a tribunal or other authority empowered to investigate or act upon such violation." In New York, such jurisdiction is exercised by the Departmental Disciplinary Committee in the First Department, the Grievance Committees in the Second and Fourth Departments, and the Committee on Professional Standards in the Third Department. Under certain circumstances, e.g., where a lawyer's violation of DR 1-102 occurs in the course of pending litigation, the proper tribunal to which a report should be made would be the court. Where, however, the allegedly unethical acts are the very subject of that litigation, the appropriate tribunal to receive any report of misconduct would be the relevant committee in the judicial department where the lawyer maintains an office.

The Committee has not read the desirability of prompt reporting to exclude the possibility of some delay in reporting when a lawyer's ethical obligation to a client necessitates such a delay. There may be situations in which it is appropriate for a lawyer to balance a client's interest, which may be furthered by a delay in reporting, against the public's interest in prompt reporting of misconduct by a lawyer who may engage in similar misconduct again if not disciplined. In determining whether there is room for judgment as to how promptly a report must be made, a lawyer should balance the severity of the misconduct engaged in by the other lawyer and the likelihood that he or she will engage in such misconduct again in the future to the detriment of other clients against the degree of prejudice that the reporting lawyer's client will suffer from prompt reporting. n6 While it may be permissible in certain limited circumstances to postpone reporting for a brief period of time, we reiterate our caution in N.Y. City 81-40 that "once a lawyer decides that he or she must disclose under DR 1-103(A), any substantial delay in reporting would be improper."

n6 We note that if an obligation exists under DR 1-103(A) to report another lawyer's misconduct, it would be inconsistent with the Code to bargain away that obligation as a term of a settlement agreement, regardless of a client's interests. See In Re Himmel, supra. In N.Y. City 80-42, this Committee concluded that the obligation to report "is not affected by actual or possible litigation against the former attorney or by the outcome of such litigation." See also N.Y. City 82-79. Thus, the decision whether or not to report another lawyer to the appropriate disciplinary authority must be considered apart from the tactical interests of the reporting lawyer's client in a malpractice action or other litigation against the lawyer who has engaged in misconduct (although, as noted above, the client's interests may be considered under certain circumstances in determining how promptly a report must be made).