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Of the many ethical obligations imposed on attorneys, perhaps none is more unpleasant than the duty to turn in a fellow practitioner for misconduct. Rule 8.3, Rules of Professional Conduct, provides, “A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate professional authorities.” Even more unsettling is that a failure to disclose reportable misconduct might itself be a violation of the Rules. Yet the affirmative duty to “squeal” is subject to a significant and broad exception. Disclosure is not required under Rule 8.3(c) of information protected by Rule 1.6 (protection of all client confidences). Which of these competing goals prevails — protecting the public from a dishonest member of the bar or protecting a client who believes her interests are better served by her lawyer’s silence? Rule 1.6(a) requires attorneys to safeguard all “information relating to representation of a client.” But the rule protects more information than that safeguarded under the evidentiary attorney-client privilege. The confidentiality duty extends not simply to information learned directly from the client or that is deemed sensitive or secret; it covers whatever information the lawyer learns concerning the representation, whatever its source. Thus, should you learn of attorney misconduct during the course of representing a client, the broader duty of confidentiality generally trumps the narrower duty to report. Client consent is required before coming forward. The leading case reconciling the duty to report and protecting client confidentiality involved a Rhode Island attorney who learned, during the course of representation, that the predecessor attorney had embezzled the client’s funds. The source of that information was the wrongdoer himself. The current attorney advised the client of his obligation to report the misconduct. The client refused to authorize disclosure, believing it might jeopardize his chances for restitution. The two criteria that trigger the reporting obligation of Rule 8.3(a) were met: (1) the attorney misconduct was both “substantial” and related to “honesty, trustworthiness or fitness as a lawyer;” and (2) current counsel had “knowledge” of the misconduct. Nevertheless, the court concluded that, absent his client’s authorization, the confidentiality exception relieved the attorney of his duty to disclose otherwise reportable misconduct. Significantly, the court rejected the argument that the information was not “confidential” under Rule 1.6 because it originated with the offending attorney. Even though his knowledge of the embezzlement fell outside the attorney-client privilege, the attorney was prohibited from reporting since the information related to his representation of a client, who withheld consent. The Connecticut Bar Association’s Ethics Committee reached the same conclusion where an attorney learned of a fellow attorney’s misappropriation of funds. However, the source of the attorney’s knowledge of wrongdoing was an attorney-client communication. Despite a full explanation of his duty to report misconduct, and urging his client to file a grievance complaint against the former attorney, the client withheld consent to a misconduct report. Again, the misconduct met the threshold requirements for reporting. But the inquiring attorney was instructed that Rule 8.3 (c), and through it, Rule 1.6(a), not only exempted him from his duty to report the misconduct, but prohibited him from reporting without his client’s consent. A client’s election to withhold consent, and thereby “veto” her attorney’s report of lawyer misconduct, is not absolute. Consider the situation in which your client was victimized by another attorney. The client may be tempted to threaten disciplinary action as leverage in settlement negotiations. But Connecticut’s version of Rule 8.3(a) makes it an independent basis for discipline for a lawyer to participate in any agreement which conditions settlement of a civil dispute alleging attorney impropriety on a promise to refrain from reporting it to disciplinary authorities. Similarly, any “payment for silence” arrangement, where the offending attorney pays a settlement in excess of a reasonable restitution, could expose both client and current counsel to a criminal charge of extortion. Most clients withhold consent for less sinister reasons. They may wish to avoid testifying, prevent disclosure of personal information, or minimize risking full and timely restitution. Absent a bad-faith ploy then, a client’s refusal to consent to an attorney misconduct report must be honored. But even this is tempered by the commentary to Rule 8.3, which advises that lawyers “encourage” clients to consent to disclosure, unless it would “substantially prejudice” the client’s interests. Suppose the misconduct is that of a colleague in your firm and you learn of it through personal observation or investigation. Would the confidentiality exception ever permit you to sidestep your reporting obligation in this situation? The New York City Bar’s Ethics Committee addressed this question under rules comparable to Rule 8.3(c) and 1.6(a). The inquiring attorney learned of a partner’s misconduct (which occurred in the representation of both current and former clients) through personal observation. So long as client matters were not implicated, the committee concluded, the confidentiality rules would not encompass the partner’s behavior in the office or conversations with other lawyers in the firm. But if reporting the misconduct necessarily would include the identification of clients or the disclosure of case details, the duty of confidentiality would attach and client consent for disclosure therefore required. The same would hold for both current and former clients and regardless of whether the offending attorney is still with the firm. Where the victim of a colleague’s misconduct is the firm itself, or where the misconduct does not relate to any identifiable current or former client, the client confidentiality exception of Rule 8.3(c) obviously is not implicated. Under these circumstances, the firm must carry out its reporting duty if the misconduct meets the rule’s threshold requirements of “substantial” acts inconsistent with “honesty, trustworthiness or fitness” to practice. These steps should minimize the risk of a disciplinary charge for failing to report a colleague’s misconduct:
Determine whether the misconduct is related to client representation. If the client is your source, the information is both privileged and confidential. But even if the source is not the client, knowledge of misconduct discovered within the context of client representation is subject to the duty of confidentiality. Advise the client that you need her affirmative consent to report. Consent is deemed effective only after consultation. Failure to respond is failure to consent. Unless client prejudice is obvious, you should encourage the client to consent to reporting the misconduct. But in the case of a law firm colleague, your discussion should stop there. If asked about the likelihood of prejudice resulting from a disciplinary complaint, (a) do not offer advice and (b) encourage the client to seek independent advice.

Should the client refuse consent to a report against an attorney (current or former) in your firm, make sure her decision is independent of your advice. Influencing a client’s decision to withhold information concerning a colleague’s wrongdoing might be deemed a violation of Rule 8.3(a). As a practical matter, where the misconduct of a colleague relates to the representation of a client, that client may, in good faith and after consultation, veto your otherwise applicable duty to report the misconduct. David P. Atkins, a partner in Zeldes, Needle & Cooperin Bridgeport, Conn. where he concentrates his practice on the representation of professionals, including attorneys, in defending malpractice and disciplinary claims.

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