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Reporting Unethical Conduct: Understanding Your Obligations under Model Rule 8.3

Michael LeBoff

Reporting Unethical Conduct: Understanding Your Obligations under Model Rule 8.3
Jose Luis Pelaez Inc via Getty Images

When must an attorney report another lawyer’s unethical conduct to the state bar? If you practice in a state that follows the ABA Model Rules, then your obligations are set forth in Rule 8.3, which I recently discussed during a Roundtable co-sponsored by the Professional Liability Litigation and Commercial & Business Litigation Committees: Roundtable: Thomas Girardi and Michael Avenatti - Lessons Learned.

Under Rule 8.3, a lawyer who knows that another lawyer has committed a violation of the rules of professional conduct that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

In evaluating a mandatory reporting obligation, the attorney must first determine whether he or she has knowledge of a violation of the Rules of Professional Conduct. Mere suspicion is not enough. But, something short of actually being an eyewitness constitutes knowledge. Ultimately, it is going to be a judgment call whether the attorney has knowledge of a violation.

Second, the unethical conduct has to violate a specific rule of professional conduct. General bad behavior will not trigger a reporting obligation. But, the Rules of Professional Conduct are broad, and include duties of candor and competence, as well as rules against conflicts of interest, discrimination, and harassment. Most things we do as lawyers potentially fall under the Rules of Professional Conduct.

Third, the conduct must raise a substantial question as to the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects. What does that mean? This is likely a know-when-you-see-it standard. The comments to Model Rule 8.3 offer little clarification, noting that a measure of judgment is required to determine whether an offense is serious enough to require reporting.

Even where a duty to report may otherwise exist, the duty of confidentiality is an important exception to the reporting requirement. This comes into play in a few situations. If you represent the attorney who violated the ethical rules, then you cannot report your own client to the state bar. This could get problematic for law firm in-house or ethics counsel, depending on whether the violating attorney or firm is the client. Another situation where this exception may apply is where reporting the attorney misconduct would require the reporting attorney to disclose confidential client information.

If you find yourself in a situation where you feel you may need to report an ethical violation, do it factually and accurately, and let the state bar take it from there. There are few things worth jeopardizing your law license for, so if at the end of the day, if you have to report a violation, then report it.