Year 1990 Ethics Opinions
THE ASSOCIATION OF
THE BAR OF THE CITY OF NEW YORK
FORMAL OPINION 1990-3
COMMITTEE ON PROFESSIONAL AND JUDICIAL
ETHICS
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May 4, 1990
ACTION: Formal Opinion
OPINION:
This opinion addresses the
requirement of DR 1-103(A) of the Lawyer's Code of Professional
Responsibility (the "Code"), as recently amended, n1
that: "A lawyer possessing knowledge, not protected as a
confidence or secret, of a violation of DR 1-102 that raises a
substantial question as to another lawyer's honesty,
trustworthiness or fitness in other respects as a lawyer shall
report such knowledge to a tribunal or other authority empowered
to investigate or act upon such violation." n2 The opinion
will explore how this amendment clarifies the intended scope of
the rule, in some respects in conformity with interpretations of
the predecessor rule by this Committee and in some respects at
variance with those prior interpretations.
n1 This and numerous other
amendments to the Code have been approved by the Appellate
Divisions in all four departments and will become effective
September 1, 1990.
n2 Formerly, DR 1-103(A) provided:
"A lawyer possessing unprivileged knowledge of a violation
of DR 1-102 shall report such knowledge to a tribunal or other
authority empowered to investigate or act upon such
violation."
DR 1-103(A), both as amended this
year and as originally adopted in 1970, imposes a mandatory
reporting obligation. A lawyer possessing "knowledge"
of another lawyer's misconduct that comes within the scope of the
rule is obligated to report that misconduct to an appropriate
disciplinary authority; failure to do so is itself an ethical
violation. While the broad reporting requirement of the earlier
version of DR 1-103(A) had proved difficult to enforce, see
Annotated Model Rules of Professional Conduct 347 (1984),
disciplinary proceedings for failure to report misconduct by
another lawyer have been instituted on occasion, and a recent
decision by the Illinois Supreme Court suspending a lawyer from
practice for one year for failing to comply with DR 1-103(A) may
augur increasingly vigilant enforcement of the rule, see In Re
Himmel, 125 Ill. 2d 531, 533 N.E.2d 790 (1989). The amendment of
DR 1-103(A) in no way compromises the Code's commitment in
principle to mandatory reporting, but the amended rule both
refines the standard of knowledge required to trigger the
obligation to report misconduct of another lawyer and narrows the
class of misconduct that must be reported. We believe that the
amended rule is likely to provide a more effective self-policing
mechanism for the legal profession that should assist in
maintaining ethical standards.
We analyze the new DR 1-103(A) as
a series of qualifications on the essentially unrestricted duty
to report another lawyer's misconduct that was imposed prior to
amendment. Indeed, the rule's true scope becomes evident only by
reference to its narrowing clauses and implicit qualifications.
A. The Degree of Certainty
Required to Constitute Knowledge
What constitutes
"knowledge" sufficient to trigger the reporting
obligation of DR 1-103(A) is not apparent from the text of the
rule. This Committee has previously held, and continues to
believe, that there is no obligation under DR 1-103(A) to report
mere suspicion of misconduct by another lawyer. N.Y. City 82-79;
N.Y. City 80-42. Our prior opinions have recognized that a report
to a disciplinary authority charging another lawyer with
misconduct is "a serious charge that should not be
undertaken lightly." N.Y. City 80-42; see also N.Y. State
480 (1977) ("[A] lawyer should . . . refrain from casting
unwarranted aspersions upon the conduct of other members of the
Bar.") Given the serious personal and professional
consequences to the other lawyer of a report charging him or her
with misconduct, the "knowledge" requirement in DR
1-103(A) should be construed to require a basis for clearly
believing that misconduct has in fact occurred before the rule's
reporting obligation is triggered. EC 1-4 states:
A lawyer should reveal voluntarily
. . . all unprivileged knowledge of conduct of lawyers which he
believes clearly to be in violation of the Disciplinary Rules.
(Emphasis added.)
Our prior opinions have relied on
EC 1-4 as support for the proposition that DR 1-103(A) requires
"actual knowledge" of professional misconduct. N.Y.
City 82-79; N.Y. City 80-42.
Useful guidance in giving meaning
to the requirement of "knowledge" in DR 1-103(A) can be
found in Doe v. Federal Grievance Committee, 847 F.2d 57 (2d Cir.
1988). The Second Circuit, in analyzing the analogous disclosure
obligation imposed by DR 7-102(B) to reveal fraud to a tribunal,
held that a lawyer must disclose only information he
"reasonably knows to be a fact" and which "clearly
establishes" the existence of a fraud. Id. at 62. The court
stated that "proof beyond a moral certainty" was not
required, but that a lawyer "must clearly know, rather than
suspect, that a fraud on the court has been committed before he
brings this knowledge to the court's attention." Id.; see
also ABA Informal Op. 1379 (1976); N.Y. State 480 (1977). n3
Studious ignorance of readily accessible facts is, however, the
functional equivalent of knowledge. C. Wolfram, Modern Legal
Ethics § 13.3.3, at 695-96 (1986); see United States v. Maniego,
710 F.2d 24, 28 (2d Cir. 1983). While a lawyer is not free to
turn a blind eye to reality, the Committee believes that a lawyer
must be in possession of facts that clearly establish a violation
of one or more Disciplinary Rules by another lawyer before an
obligation arises under DR 1-103(A) to make a report.
n3 The fact that a lawyer has
filed a complaint in court on behalf of a client against another
lawyer which satisfies the threshold requirements of Rule 11 of
the Federal Rules of Civil Procedure or Section 130.1 of the
Uniform Rules for the New York State Trial Courts does not in and
of itself establish that the lawyer possesses actual
"knowledge" of misconduct that would trigger the
disclosure obligation of DR 1-103(A). The Disciplinary Rule
requires a higher level of knowledge than that required to avoid
the judicial imposition of costs or sanctions.
B. The Types of Misconduct that
Must Be Reported
Like the preexisting rule, amended
DR 1-103(A) defines a lawyer's misconduct by reference to DR
1-102(A). n4 However, the amended rule limits the misconduct
subject to the reporting requirement by requiring "that [it]
raise [] a substantial question as to another lawyer's honesty,
trustworthiness or fitness in other respects as a lawyer. . .
." (Emphasis added.) This constitutes both a clarification
of the scope of the reporting requirement and a narrowing of the
category of misconduct subject to obligatory reporting. We note
that the definition of misconduct that must be reported has two
distinct elements: (1) the misconduct must raise a
"substantial" question, and (2) that question must bear
on a lawyer's "fitness" to practice law.
n4 DR 1-102(A), expressly referred
to in DR 1-103(A) as defining misconduct subject to the reporting
obligation, provides:
A lawyer shall not:
1. Violate a Disciplinary Rule.
2. Circumvent a Disciplinary Rule
through actions of another.
3. Engage in illegal conduct
involving moral turpitude.
4. Engage in conduct involving
dishonesty, fraud, deceit or misrepresentation.
5. Engage in conduct that is
prejudicial to the administration of justice.
6. Unlawfully discriminate in the
practice of law, including in hiring, promoting or otherwise
determining conditions of employment, on the basis of age, race,
creed, color, national origin, sex, disability, or marital
status.
7. Engage in any other conduct
that adversely reflects on the lawyer's fitness to practice law.
Subsection 6 is new, see Gross,
Amendments to New York's Code of Professional Responsibility -
Part I, N.Y.L.J. March 8, 1990, at 4 (col. 6), 6 (col. 3);
subsection 7 is former subsection 6.
The source of the change is stated
in the notes accompanying the October 5, 1987 draft of the
proposed amendments to the Code approved by the House of
Delegates of the New York State Bar Association:
The phrase "that raises a
substantial question as to that lawyer's honesty, trustworthiness
or fitness in other respects as a lawyer" which has been
added to subdivision (A) is drawn from Model Rule 8.3(A)
(Reporting Professional Misconduct) to limit the reporting of
misconduct to serious matters.
The annotations to Model Rule
8.3(a) reveal that its less expansive reporting requirement was
adopted because the unqualified obligation imposed by DR 1-103(A)
had proved to be unenforceable. Recognizing fully the importance
of a reporting requirement to protect the public from misconduct
engaged in by other members of the Bar, the Model Rules
pragmatically chose one that lawyers would honor. The drafters
found that the unqualified duty to report under former DR
1-103(A) was so widely disregarded that the rule effectively had
become a "dead letter." At the same time, the drafters
of the Model Rules cited studies showing that "most lawyers
will report serious breaches of professional
responsibility." See Note, The Lawyer's Duty to Report
Professional Misconduct, 20 Ariz. L. Rev. 509, 515-16 (1978). The
following articulation appears in the commentary accompanying
Model Rule 8.3(a): "This Rule limits the reporting
obligation to those offenses that a self-regulating profession
must vigorously endeavor to prevent. A measure of judgment is,
therefore, required in complying with the provisions of this
Rule." Annotated Model Rules of Professional Conduct 346
(1984).
Adoption of the "substantial
question" formulation of Model Rule 8.3(a) and citation to
that rule in the notes accompanying the proposed amendments to
the Code evince an intention that the reporting requirement
imposed by the newly amended DR 1-103(A) be subject to the same
"measure of judgment." In making a judgment as to
whether a substantial question concerning another lawyer's
"honesty, trustworthiness or fitness in other respects as a
lawyer" has been presented, the seriousness of the
misconduct -- not the sufficiency of evidence that misconduct has
occurred (see Part A, supra) -- is to be considered. The
amendment of DR 1-103(A) to restrict its application to serious
infractions of the Disciplinary Rules should also serve to
intensify efforts to enforce the rule. That, in fact, seems to
have been the principal rationale for amending DR 1-103(A),
namely, to define a sensible rule of mandatory reporting that
would invigorate prosecution of professional misconduct.
C. Categories of Knowledge
Exempted from the Obligation to Report
DR 1-103(A), as amended, exempts
from the obligation to report misconduct of another lawyer
knowledge that is protected as a confidence or secret of a
client. This represents a significant departure from the former
rule, which exempted from the reporting requirement not
confidences and secrets but "privileged" information.
The notes accompanying the proposed amendments to the Code state
that the change was enacted "to clarify" that both
confidences and secrets are exempted, not just information
protected by the attorney-client privilege. Opinions of this
Committee prior to the amendment of DR 1-103(A) construed the
rule as not exempting the broader range of information
encompassed within the definition of "secret" in DR
4-101(A). See N.Y. City 82-79; N.Y. City 81-40. These earlier
opinions were based on the definitions of "confidence"
and "secret" in the Code. DR 4-101(A) defines a
"confidence" as "information protected by the
attorney-client privilege under applicable law. . . ."
Former DR 1-103(A)'s requirement that "unprivileged
knowledge" of another lawyer's violation of DR 1-102 be
reported thus clearly exempted "confidences" from the
reporting obligation. But that exemption did not reach
"secrets," a category of information defined far more
broadly in DR 4-101(A): "'secret' refers to other
information gained in the professional relationship that the
client has requested be held inviolate or the disclosure of which
would be embarrassing or would likely to be detrimental to the
client."
The inclusion of
"secrets" in the category of information exempted from
the reporting requirement of DR 1-103(A) is again a recognition
of reality. Regardless of the literal reading of the rule, a
lawyer was unlikely to report another lawyer's misconduct if
doing so required the lawyer to disclose a "secret" to
the likely detriment of the lawyer's client. Moreover, amending
DR 1-103(A) to exclude from the reporting obligation information
protected as a "secret" under Canon 4 eliminates an
inconsistency in the Code. A lawyer possessing knowledge that a
client admitted to the Bar had perpetrated a fraud, which
knowledge the lawyer gleaned from a "secret," was
obliged to disclose that fraud to the appropriate disciplinary
authorities under former DR 1-103(A) and DR 1-102(A)(4). However,
the lawyer was not required to disclose such a fraud to the
affected persons or tribunal under DR 7-102(B)(1). In sum, former
DR 1-103(A) was inconsistent in both letter and spirit with
another provision of the Code concerning the disclosure of
"secrets."
D. Clarification as to the
Exemption of Self-Reporting
Former DR 1-103(A) was susceptible
to an interpretation that a lawyer was obligated to report his or
her own misconduct because the attorney-client privilege could
not be invoked by a lawyer on his or her own behalf. The
difficulty with such an interpretation was that it ignored the
privilege against self-incrimination. The ABA Committee on Ethics
and Professional Responsibility opined that "unprivileged
information" in former DR 1-103(A) should be read to exclude
information protected by the privilege against
self-incrimination. ABA Informal Op. 1279 (1973). As amended, DR
1-103(A) eliminates any question on this point by providing
expressly that only knowledge of professional misconduct by
"another lawyer" is subject to the reporting
requirement.
E. Considerations as to the Timing
of Required Disclosures
If a lawyer determines that he or
she possesses knowledge of misconduct by another lawyer that must
be reported under DR 1-103(A), generally the lawyer would be
obligated to report that knowledge to the appropriate
departmental disciplinary authority n5 promptly. This Committee
previously has addressed the question of whether it is
permissible to delay reporting misconduct of another lawyer in
order to protect the interests of a client. We determined that,
notwithstanding a lawyer's duty under Canon 7 to represent a
client loyally and zealously and to avoid prejudicing the
client's interest, "a report of misconduct must be made
promptly upon discovery in order to protect the public."
N.Y. City 82-79.
n5 DR 1-103(A) speaks of making
the requisite report "to a tribunal or other authority
empowered to investigate or act upon such violation." In New
York, such jurisdiction is exercised by the Departmental
Disciplinary Committee in the First Department, the Grievance
Committees in the Second and Fourth Departments, and the
Committee on Professional Standards in the Third Department.
Under certain circumstances, e.g., where a lawyer's violation of
DR 1-102 occurs in the course of pending litigation, the proper
tribunal to which a report should be made would be the court.
Where, however, the allegedly unethical acts are the very subject
of that litigation, the appropriate tribunal to receive any
report of misconduct would be the relevant committee in the
judicial department where the lawyer maintains an office.
The Committee has not read the
desirability of prompt reporting to exclude the possibility of
some delay in reporting when a lawyer's ethical obligation to a
client necessitates such a delay. There may be situations in
which it is appropriate for a lawyer to balance a client's
interest, which may be furthered by a delay in reporting, against
the public's interest in prompt reporting of misconduct by a
lawyer who may engage in similar misconduct again if not
disciplined. In determining whether there is room for judgment as
to how promptly a report must be made, a lawyer should balance
the severity of the misconduct engaged in by the other lawyer and
the likelihood that he or she will engage in such misconduct
again in the future to the detriment of other clients against the
degree of prejudice that the reporting lawyer's client will
suffer from prompt reporting. n6 While it may be permissible in
certain limited circumstances to postpone reporting for a brief
period of time, we reiterate our caution in N.Y. City 81-40 that
"once a lawyer decides that he or she must disclose under DR
1-103(A), any substantial delay in reporting would be
improper."
n6 We note that if an obligation
exists under DR 1-103(A) to report another lawyer's misconduct,
it would be inconsistent with the Code to bargain away that
obligation as a term of a settlement agreement, regardless of a
client's interests. See In Re Himmel, supra. In N.Y. City 80-42,
this Committee concluded that the obligation to report "is
not affected by actual or possible litigation against the former
attorney or by the outcome of such litigation." See also
N.Y. City 82-79. Thus, the decision whether or not to report
another lawyer to the appropriate disciplinary authority must be
considered apart from the tactical interests of the reporting
lawyer's client in a malpractice action or other litigation
against the lawyer who has engaged in misconduct (although, as
noted above, the client's interests may be considered under
certain circumstances in determining how promptly a report must
be made).
