Ethics Hotline & Opinions

ETHICS DOCKET NO. 1989-36

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MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 1989-36

ATTORNEY'S DUTY TO REPORT ETHICS VIOLATIONS


You state that your clients are attorneys who are being sued for an accounting by members of their former law firm. Your clients have told you details about ""unethical and illegal conduct"" on the part of the plaintiffs/attorneys, which occurred several years ago when the law firm was in existence. In the suit an affidavit by your clients in support of a motion has been filed wherein this unethical and illegal conduct has been ""indicated"".

You ask for advice as to:

1) Your responsibility with regard to reporting the alleged improprieties, of which you have no personal knowledge other than what your clients have told you; and

2) Your client's responsibilities, if any, to report the improprieties, given the fact that the allegations are already a matter of public record in the Circuit Court.

Based on these facts, the Committee is of the opinion that if the unethical and illegal conduct of the lawyers in question raises a substantial question as to their honesty, trustworthiness or fitness as lawyers in other respects, then it should be reported to the Attorney Grievance Commission of Maryland, by you and your clients.

Rule 8.3 (a) and (c) of the Maryland Rules of Professional Conduct provide:

""(a) A lawyer having knowledge 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. . . .

(c) This rule does not require disclosure of information otherwise protected by Rule 1.6 [confidentiality of information relating to representation of a client].""

While a lawyer who violates any of the ethical and professional conduct standards set forth in the Rules is subject to disciplinary sanctions [Rule 8.4 (a)], another lawyer has no duty  l   to report a violation unless the violation raises a ""substantial"" question as to a lawyer's honesty, trustworthiness or fitness as a lawyer in other respects. Comment to Rule 8.3.

Also, while every lawyer is answerable to the entire criminal law, a lawyer is ""professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. offenses involving violence, dishonesty, or breach of trust, or serious interference with the administration of justice are in that category."" Comment to Rule 8.4(b). Thus, under the Rules of Professional Conduct, a lawyer's duty to report criminal acts of another lawyer is also limited to those acts which raise a ""substantial"" question as to a lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.

""The term 'substantial' refers to the seriousness of the possible offense and not to the quantum of evidence of which the lawyer is aware."" Comment to Rule 8.3.

Whether or not a given violation of ethics or illegal act is ""substantial"" requires a judgment call, since the Rule is not more specific. Comment to Rule 8.3.

Since the conduct and acts you refer to are already a matter of public record, because of disclosure by your clients on the court record, then it appears that that information is not protected from further disclosure under Rule 1.6. While the Rule requires that a lawyer have ""knowledge"" of the violation, it does not require that such be based on ""personal knowledge"". In the Terminology Section of the Rules, ""Knowingly"", ""Known"" or ""Knows"" is defined to be ""actual knowledge of the fact in question."" It is further stated therein that ""A person's knowledge may be inferred from circumstances."" We are of the opinion that the Rule requires that a lawyer have some reliable evidence which indicates a reasonable probability that a violation has occurred, as opposed to having a mere suspicion thereof. MSBA Committee on Ethics Opinion 84-57. And even though the misconduct has been revealed to a court, ""the appropriate professional authority"" must still be informed.

1 The Rule is concerned only with a lawyer's affirmative duty to report certain wrongdoings to the Attorney Grievance Commission, the failure to do so in the appropriate situation may itself be a violation of the Rules of Professional Conduct. Attorney Grievance Commission v. Kahn, 209 Md. 654, 664 T1981); MSBA Ethics Committee Opinion 86-14.


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DISCLAIMER: Opinions of the Maryland State Bar Association (MSBA) Ethics Committee are an uncompensated service of the MSBA. This Committee’s opinions are not binding on the Maryland Court of Appeals, Maryland Attorney Grievance Commission, MSBA or this Committee. The reader is advised that subsequent judicial opinions, revisions to the rules of professional conduct, and future opinions of this Committee may render the Opinions stated herein outdated. As such, the Committee’s opinions are advisory only and neither the Committee nor the MSBA assumes any liability whatsoever with respect thereto. Accordingly, reliance upon the opinions of this Committee is solely at the risk of the user.