Ethics Hotline & Opinions

ETHICS DOCKET NO. 1989-46

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MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 1989-46

DUTY TO REPORT PROFESSIONAL MISCONDUCT WHERE CLIENT REQUESTS OTHERWISE


You enclosed part of a Complaint in which your client is suing an attorney for breach of fiduciary duty.

You have inquired of the Committee whether or not you have a duty to report professional misconduct of the attorney you have sued. Your inquiry does not reveal how you discovered that the defendant attorney's conduct in your client's lawsuit was an intentional breach of his fiduciary duties. However, for the purpose of this response, we have assumed that the information was ""information relating to representation of"" the client.

Your inquiry also reveals that your client ""expressly requested that you not file a Complaint with a Committee, Bar Association, or Grievance Commission concerning this former attorney.""

Rule 8.3 of the Maryland Rules of Professional Conduct requires that, ""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."" Rule 8.3 goes on to provide that it does ""not require disclosure of information otherwise protected by Rule 1.6.""

Rule 1.6 states emphatically that ""a lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b)."" The reference to paragraph (b) of Rule 1.6 allows an attorney to reveal information on a discretionary basis only under four specific circumstances, only one of which is relevant. You may reveal information relating to the representation of a client to comply with the Rules of Professional Conduct.

Commentary to Rule 1.6 reveals that the confidentiality privilege was enlarged to include ""all information about a client relating to the representation."" This enlargement was intended to protect more information and make it more difficult for an attorney to reveal such information over the objection of his client. According to the Comment, this was done because, ""the client is thereby encouraged to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.""

Since Rule 8.3 specifically does not ""require disclosure of information otherwise protected by Rule 1.6,"" and lawyers are only given discretionary authority to reveal information relating to their representation of a client to comply with the Rules of Professional Conduct (see Rule 1.6(b) (4) you should not feel compelled to reveal the information you have received from your client concerning the other attorney.


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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.