Reporting Attorney Misconduct: The “Knowledge” Factor

In Part 1, we discussed the “privileged” element or restriction on the duty Ohio lawyers have to report misconduct under Rule 8.3; now we will discuss the “knowledge” element. All Ohio attorneys have a duty to report attorney misconduct if it is not privileged and they have knowledge of the misconduct. This is true even as to one’s own misconduct.

The knowledge requirement can sometimes be difficult to navigate. The definition of “knowledge” as found in Rule 1.0 (g) indicates it “denotes actual knowledge or the fact in question. A person’s knowledge may be inferred from the circumstances.” The first sentence of this definition suggests the requirement is actual personal knowledge, whereas the second sentence suggests it is an objective standard.

Board of Professional Conduct Opinion 2007-1 does little to clarify this ambiguity. The opinion states, “mere suspicion of misconduct need not be reported. Actual knowledge is the standard, not mere suspicion.” While this would suggest personal subjective knowledge is required, case law from other jurisdictions does not support this reading. For example, in the Louisiana discipline case In re Riehlmann, 891 So. 2d 1239 (2005), the court specifically held that the knowledge element in rule 8.3 is to be measured by an objective standard. That is, would a reasonable lawyer, aware of the circumstances known to the lawyer in question, have formed a firm belief that conduct in question more likely than not occurred.

And there are Ohio cases addressing the application of the “knowledge” element in other rules of professional conduct, as well. In those instances, the Supreme Court of Ohio has also applied an objective test to determine whether a lawyer “knew.” In Disciplinary Counsel v. Gardner, 99 Ohio St.3d 416 (2003), the lawyer was alleged to have knowingly made false statements about judicial officers (Rule 8-102(B), now 8.2). The Supreme Court noted that, because attorney discipline has a different purpose than slander and libel, it makes sense to apply an objective standard to determine the knowledge element of 8-102(B).

Thus, it is incumbent on all lawyers faced with a decision as to whether they are required to report their own conduct or that of another lawyer to view the knowledge element from the point of view of a “reasonable lawyer.” The last article on the reporting of attorney misconduct will focus on the third element, namely whether the lawyer’s conduct “raises a question as to the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.”