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Professional Responsibility
University of South Carolina School of Law
Powell, Burnele Venable

I. Ch. 31 – Are You Your Brother’s Keeper?

1. The Obligation to Report Another Lawyer – Rule 8.3(a) imposes a duty to inform on other lawyers in some, but not all, circumstances.

Rule 8.3 Reporting Professional Misconduct

(a) A lawyer who knows 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.

(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.

(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.

a. Rule 8.3(c) says subsection (a)“does not require disclosure of info otherwise protected by Rule 1.6 (i.e. confidential info).”

b. 3 situations where information would be protected by Rule 1.6:
i. Rule 1.6 would apply if a lawyer learns about a lawyer’s misconduct in the course of representing that lawyer regarding alleged or possible misconduct.
· Thus if an atty comes to you for legal advice a/b how to respond to charges that he used client trust funds for personal expenses, and the atty admits he stole $ from client accounts, you are not required to reveal the info. See Comment 5 to Rule 8.3.

ii. Rule 1.6 applies if you learn a/b another lawyer’s misconduct while representing the lawyer in a matter relating to the misconduct. B/c the misconduct relates to your representation of the lawyer, the info a/b the misconduct falls w/in the definition of “confidential information” in Rule 1.6.

iii. Rule 1.6 applies if you learned about another lawyer’s misconduct while representing a client other than that lawyer.
· Ex. You represent a bank in a loan default case. The bank claims that borrower committed fraud on the application. At borrower’s depo, she claims her former atty advised her to lie a/b certain info on the loan application. Advising a client to lie on a loan application violated Rule 1.2(d), which prohibits a lawyer from counseling or assisting a client in committing fraud. You do not have to report the info b/c it relates to your representation of your client in the loan default case, so it is protected by Rule 1.6.

· Comment 3 to SC Rule 8.3: “A report about misconduct is not required where it would involve violation of Rule 1.6. However, as lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client’s interest.”

c. Wieder v. Skala (N.Y., 1992) – Π sued frmr law firm alleging he was wrongfully discharged as an associate b/c of his insistence that the f

iggered. The lawyer is not required to conduct an investigation and make a definitive decision that a violation has occurred b/f reporting. On the other hand, knowledge requires more than mere suspicion of ethical misconduct.
· Objective Test: “… a lawyer will be found to have knowledge of reportable misconduct, and thus reporting is required, where the supporting evidence is such that a reasonable lawyer under the circs would form a firm belief that the conduct in question had more likely than not occurred.”

ii. When to Report – once the lawyer decides a reportable offense has likely occurred, reporting should be made properly. The need for prompt reporting flows from need to safeguard the public and profession a/g future wrongdoings by the offending lawyer.

iii. Appropriate Authority – the report should be made to the bar disciplinary authority.

e. ABA Rule 8.3…Comment 3: The term “substantial” refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances. Similar considerations apply to the reporting of judicial misconduct.