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Ethics Opinion

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RI-29

September 19, 1989

SYLLABUS

    A lawyer having knowledge that a law student has engaged in conduct which if done by a lawyer would have violated the Michigan Rules of Professional Conduct, has a duty to report the conduct to bar admissions authorities, unless the relevant information is protected by attorney-client privilege.

    References: MRPC 5.3, 8.1, 8.4(a) and (c).

TEXT

A lawyer is a member of the legal staff of an insurance company. In the course of the lawyer's duties, the lawyer has discovered that a law student employed by the company as an intern was involved in an apparent property damage collision while driving a company car on personal business. The vehicle with which the law student collided never stopped. The law student admitted to stopping briefly, then leaving the scene of the accident. The law student has refused to report the accident to the proper police authorities.

The law student is no longer employed by the company and has suddenly vacated his/her residence, apparently without a forwarding address, making further contact impossible. The law student is not a citizen of the United States and has no valid Michigan driver's license. The lawyer has been unable to ascertain the existence of a valid Canadian driver's license.

The law student reportedly graduates from law school this year. While the lawyer has submitted the appropriate reporting documents to the relevant county prosecutor's office, the lawyer asks whether there is an ethical duty to report this incident involving the law student to the state bar admission authorities. The company has requested that the lawyer not report the matter, absent a duty to do so.

MRPC 8.1 states:

    "An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:

      "(a) knowingly make a false statement of material fact; or

      "(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information protected by Rule 1.6."

The terms of MRPC 8.1 are not particularly relevant to the lawyer unless read in conjunction with MRPC 5.3 and MRPC 8.4(a) and (c). The relevant portions of MRPC 5.3 state:

    "With respect to a nonlawyer employed by, retained by, or associated with a lawyer:

      ". . .

      "(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and

      "(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the rules of professional conduct if engaged in by a lawyer if:

        "(1) the lawyer orders or, with knowledge of the relevant facts and the specific conduct, ratifies the conduct involved; or

        "(2) the lawyer is a partner in the law firm in which the person is employed or has direct supervisory authority over the person and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action."

MRPC 8.4(a) and (c) provide:

    "It is professional misconduct for a lawyer to:

      "(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

      ". . .

      "(c) engage in conduct that is prejudicial to the administration of justice . . . ."

Initially, it must be pointed out that the law student, by failing to report the accident and/or by leaving the scene, has not violated the Rules of Professional Conduct. The Rules apply to nonlawyers only within the context of their activities in conjunction with lawyers. Insofar as that failure to report might have been attributable to the lawyer (the law student was using a company car at the time), the lawyer has resolved that by reporting the matter to the proper prosecuting authorities. The violation of the Rules, if any, would arise with the law student's application for admission to the bar, if the law student applies, and the law student's failure, if any, to confess the failure to report the accident and leaving the scene.

There are no opinions on point which address the issues presented here. The only authorities we have found relate to a lawyer reporting criminal activity of another to the police, or reporting ethical misconduct of a lawyer to disciplinary authorities. Those opinions which require reporting of criminal activity have not addressed whether there is an attendant duty to report the individual to a licensing authority. In this case, the accident has been reported and property damages will be reimbursed.

It could be argued that MRPC 8.1 is inapplicable because the lawyer is not "a lawyer in connection with a bar admission application." The lawyer has not been named as a reference on any bar admission application, has not been asked for information, has not supplied any information (false or otherwise), does not know that there is any misapprehension on the part of admissions authorities relative to the law student's bar admission application nor indeed, does not even know that an application has been or will be filed.

MRPC 5.3(b) is not applicable because the lawyer did not have direct supervisory authority over the law student at the time the law student was employed with the company and certainly would have no authority over the law student if and when the law student files an application for admission to the bar, given the fact that the law student has left employment with the company and the lawyer does not know the law student's whereabouts.

The Committee notes, however, that if a lawyer engaged in similar conduct, i.e., causing property damage, fleeing the scene and refusing to report the incident, the lawyer would be subject to discipline under MRPC 8.4(c). MRPC 5.3(c)(1) indicates that a lawyer "shall be responsible" for the conduct of the law student if he "ratifies" the conduct. Failing to report the conduct to the appropriate admission authorities could be viewed as "ratification" under these circumstances: (1) that the law student has returned to complete law school and is therefore locatable, (2) that the law student, having refused to report the incident, is unlikely to affirmatively disclose the incident to admission authorities, (3) that there is no record which could be disclosed through regular investigation by admission authorities, (4) that there would be no reason for admission authorities to call upon the lawyer for information about the law student in the event of an application for admission, since the lawyer was not the law student's supervisor, and (5) that the information it seeks will not be discovered unless the lawyer discloses it.

A law student engaging in this conduct demonstrates an inability to take responsibility for personal actions and a blatant disregard for the laws the law student is studying to uphold. Thorough and complete admissions investigations are necessary to safeguard professional integrity. Unless the lawyer informs the admissions agency of the incident, it is likely this significant matter bearing upon the individual's character and fitness to practice law will go undetected because there are no records that would reveal the incident in the ordinary investigative process. A lawyer's ethical responsibilities do not end with a literal interpretation of the Rules of Professional Conduct.

Absent an obligation to maintain the confidentiality of the information as the result of an attorney-client relationship, a circumstance inapplicable here, the lawyer has a duty to report the matter to the bar admissions authorities. The responsibility to report, in this instance, is consistent with the spirit and intent of those rules and the purpose behind them.

 
     

 

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