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Model Rule 8.3

Reporter's Explanation of Changes


1. Paragraphs (a) and (b): Change "having knowledge" to "who knows"

In importing DR 1-103 of the ABA Model Code of Professional Responsibility into the Model Rules, the "having knowledge" formulation was used even though that term is undefined in the Rules. "Knows" and "knowingly," on the other hand, are defined terms, and the Commission is substituting them in this Rule for consistency and to put the mandate into the active voice. No change in substance is intended.

2. Paragraph (c): Substitute Rule 1.6 for "privilege"

The proposed change makes Rule 1.6 the operative standard as it is throughout the rest of the Model Rules.

3. Paragraph (c): Change "serving as a member of" to "participating"

This change expands the reporting exception to any lawyer or judge who participates in an approved lawyers assistance program, even if such participation is limited to a single instance.

4. Paragraph (c): Modify reference to information gained in lawyers assistance program

The Commission determined that the attempt to qualify or specify the conditions on which information gained by a lawyer or judge while participating in an approved lawyers assistance program is unnecessary and confusing. This modification makes it clear that this Rule does not require the reporting of information obtained during such participation.


[5] The changes in the fourth sentence are intended to make clear that Rule 1.6 is the operative standard, not the attorney-client privilege. The last sentence of current Comment [5] has been deleted because it is inaccurate. It is not a violation of the Model Rules for a lawyer, impaired or otherwise, to "intend" to do something wrong, so it would not be reportable "professional misconduct" under any construction of the Rules. As drafted by the Commission, Rule 1.6 permits but does not require disclosure in certain circumstances. The changes also clarify that paragraph (c) of this Rule does not generally address the confidentiality obligations of a lawyer or judge who participates in a lawyers assistance program, but merely creates an exception to the reporting obligation under paragraphs (a) and (b). Whether an obligation of confidentiality is incurred depends on the rules of the particular program as well as law external to these Rules.

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