Clients have final say regarding the reporting of a previous lawyer’s unethical behavior.
I represent a client and have just taken over the case. From my review, it appears that the original lawyer acted very unethically. I wish to report this to the Office of Disciplinary Counsel. The client objects. What are my obligations?
Normally, a lawyer has a mandatory obligation to report another lawyer when the lawyer becomes aware of violations of the Rules of Professional Conduct that “raise a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects,” as per Rule of Professional Conduct 8.3(a). That rule is very clear about making mandatory reporting necessary when there is information that suggests a lawyer is no longer fit, honest or competent to practice.
The purpose of this self-reporting rule is obvious. Although the Office of Disciplinary Counsel in recent years has done an excellent job, its funding is still limited. The Office of Disciplinary Counsel doesn’t have the resources to ferret out acts of misconduct. Instead, it usually works and acts pursuant to complaints that are made, either by a lawyer, the public or in newspaper reports, of actions by an attorney. To maintain the independence of the legal profession, it is imperative that there be a strong and effective disciplinary system. As a result, this self-reporting requirement becomes very important. Although no one likes to turn in a colleague, the duty is an absolute one because of the need of maintaining the independence of the bar.
But the same Rule 8.3 has an exception under Rule 8.3(c). That rule does not require disclosure of information that is protected by Rule 1.6. In other words, if a lawyer learns about the misconduct of a previous lawyer through the representation of a client, that is privileged information. Rule 1.6, involving confidentiality, involves anything related to the representation. Therefore, the lawyer needs the client’s consent to this information. If the client does not consent, then the lawyer can’t report it, because the information is in the attorney-client privilege.
This limitation is reflected very clearly in Comment 2 to Rule 8.3:
“A report about misconduct is not required where it would involve violation of Rule 1.6. However, a lawyer should encourage a client to consent to a disclosure where prosecution would not substantially prejudice the client’s interest.”
Therefore, the duty to report is limited. If a client refuses and the information came through the attorney-client relationship, then the lawyer cannot report the matter. In other jurisdictions, there might be a different result. But Pennsylvania has made it very clear that information gained in the attorney-client privilege cannot be reported without the consent of the client.
Therefore, the lawyer must defer to the client’s advice. The lawyer should obviously try to convince the client to allow the reporting, but the client will have the final say in this.
The rules regarding nonlawyer outside services should be reviewed.
My firm is hiring lawyers to do record and document reviews. Are there any special duties and responsibilities I have to these contract attorneys working for the firm?
The outsourcing of work is really a very modern phenomenon. This would never have been dreamed of 20 or 30 years ago.
With modern technology and massive discovery requests, firms are hiring attorneys or staff, sometimes from other countries, or are hiring local lawyers and paralegals to come in and perform work at an hourly rate. The Rules of Professional Responsibility, until recently, did not really deal with that situation. The pertinent rules were Rules 5.1, 5.2 and 5.3, involving responsibilities of partners, managers and supervising lawyers and responsibilities for subordinate lawyers and for nonlawyer assistants. Under these rules, a lawyer has some responsibility to ensure the Rules of Professional Conduct are complied with by these per diem or independent workers.
But to clarify the situation, the state Supreme Court recently adopted, by order dated Oct. 22, additional rules. Under the comments to Rule 1.1, involving competence, there is a new Comment 6. That comment talks about a lawyer contracting or retaining lawyers outside the lawyer’s own firm to provide assistance. Before a lawyer can do that, the lawyer “must reasonably believe that the other lawyers’ services will contribute to the competent and ethical representation of the client.” This comment also notes reasonableness will depend on a thorough review of the outside lawyers’ qualifications and experience. The rule notes the need for the lawyer’s willingness to engage and comply with ethical rules and professional conduct in an ethical environment.
There has also been an amendment under Rule 5.3 comments to include Comments 3 and 4. Comment 3 clearly notes that when a lawyer uses lawyers outside the firm, the lawyer has a special duty to make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations. It is the hiring lawyer who has the obligation to ensure these rules are complied with.
The lawyer has an obligation to communicate directions and to give assurances that the conduct is consistent with the professional obligations of a lawyer, particularly if the new person is a nonlawyer.
Comment 4 under Rule 5.3 also discusses the selection of an outside lawyer service. The rule notes that a lawyer should ordinarily comply with the client’s choice of nonlawyer outside services. There has to be an agreement with these lawyers as to the allocation of their responsibility. The lawyer must always remember he or she cannot assist a nonlawyer in the unauthorized practice of law.
The problem with using outside lawyers or outside services has not been truly addressed. The court is now ensuring the ethical responsibilities for competency are maintained and that the firm that hires these attorneys on a part-time basis has the responsibility to ensure ethical compliance. The new rules should be reviewed, particularly the technology additions, which will be discussed in later articles. Every lawyer has the obligation and responsibility to ensure that their office complies with technology requirements, particularly that of protecting confidence and secrets.
Contract lawyers can be used and should be used, but the new rule change reflects the professionalism required of all lawyers and the responsibility of a lawyer’s firm in hiring non-firm members to perform legal services.
Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.