Reporting Attorney Misconduct: The “Privilege” Factor

Ohio Rule of Professional Conduct 8.3 sets out Ohio lawyers’ duty to report attorney misconduct. The rule has three basic elements: (1) whether the lawyer “knows” of a violation of the Rules of Professional Conduct; (2) whether the lawyer’s knowledge is “privileged;” and (3) whether the Rule violation raises a “question” as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.

This first article will address the “privileged” exception to the reporting rule. This obviously refers to the attorney-client privilege and, as Comment Four makes clear, anytime an attorney represents or consults with counsel about an alleged act of misconduct, the attorney-client privilege attaches to the communication. Thus, an attorney retained to represent a lawyer whose conduct is in question has no duty to disclose her client’s alleged misconduct.

In other contexts, however, this exception to the duty to report is limited to “privileged” communications and does not include all confidential communication under Rule 1.6. Accordingly, learning of predecessor counsel’s misconduct by reviewing documents or by talking to third parties does not make that information “privileged.” Nor is “knowledge” of opposing counsel’s misconduct learned during the course of a representation “privileged.” If, however, a lawyer serves as general counsel to his/her firm and learns of misconduct by another member of the firm then the information may well be covered by the “privilege” exception since the general counsel has an attorney-client relationship with the firm and its members. This determination requires a very careful analysis of all the facts and circumstances, including the circumstances surrounding how the general counsel learned of the misconduct.

Often, a key question is the firm’s duty to reveal the misconduct to the client. Ethical commentators generally agree that a lawyer’s obligations to the client include the duty to advise the client whenever there has been misconduct. This stems primarily from Rule 1.4 and the lawyer’s fiduciary duties to the client. Once the client has been advised and the information has been reported, the next issue is whether subsequent communications between the general counsel and the firm lawyer about the allegations are “privileged.” While these communications are increasingly seen as “privileged,” this question has generated significant debate, and the legal analysis by the courts is evolving.

An equally difficult question is what to do when a client instructs the lawyer not to reveal the misconduct. Say for example, the client wants the lawyer to negotiate a settlement with the offending lawyer and does not want the new lawyer to report to discipline authorities. Does the duty of confidentiality found in Rule 1.6 trump the duty to report found in Rule 8.3? In Illinois, the answer appears to be no — the lawyer is obligated to report so long as the communication wasn’t covered by the statutory definition of a “privileged” communication. In Ohio, we have an ethics opinion from the Board on Professional Conduct (Op. 90-1) stating that the lawyer’s duty under the predecessor to Rule 1.6 (DR 4-101) does trump the duty to report under Rule 8.3. Because of the pitfalls and the fact intensive nature of these issues, it is recommended that any Ohio lawyer confronted with a serious reporting question should consult with an expert.