RI-88

June 10, 1991

SYLLABUS

Lawyers, including judges, have a duty to report to appropriate disciplinary authorities any significant violation of the ethics rules on the part of another lawyer that raises a substantial question as to the lawyer's honesty, trustworthiness, or fitness as a lawyer.

A lawyer may not offer or make an agreement restricting a party or counsel for a party from bringing information concerning a lawyer's ethical misconduct to the attention of the Attorney Grievance Commission.

References: MRPC 1.6, 3.1, 4.4, 8.3, 8.4(c); R-9; RI-57, RI-78; C-229; CI-695, CI-731, CI-841, CI-948; In re Himmel, 533 NE2d 790 (Ill 1988).

TEXT

A lawyer asks whether the lawyer may, as a condition of settling a client's matter, agree not to file a grievance against another lawyer.

MRPC 8.3 states:

"(a) A lawyer having knowledge that another lawyer has committed a significant violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer shall inform the Attorney Grievance Commission.

". . .

"(c) This rule does not require disclosure of information otherwise protected by Rule 1.6."

The official comment to the MRPC 8.3 summarizes the policy considerations behind the rule. The comments are as follows:

"Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. Lawyers have a similar obligation with respect to judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense.

"A report about misconduct is not required where it would involve violation of 1.6. However, a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client's interest.

"If a lawyer were obliged to report every violation of the rules, the failure to report any violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. 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. The term 'substantial' refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware.

"The duty to report professional misconduct does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question. Such a situation is governed by the rules applicable to the client-lawyer relationship."

Implicit in the concept of self-regulation is the necessity that the "regulated" play a role in policing each other. Although many find the assumption of this responsibility onerous, or even "distasteful," it still lies at the heart of professional self-regulation. MRPC 8.3, however, somewhat lightens the burden by not requiring the lawyer to report every violation of the rule or violations of the rule which do not go to the heart of the profession, i.e., honesty, trustworthiness, or fitness as a lawyer. Thus, the lawyer must use reasonable value judgments with reference to the significance of the possibly offending misconduct and what is required to be reported. A lawyer may, but is not required, to report to the Attorney Grievance Commission other misconduct which (a) is not protected from disclosure by MRPC 1.6; (b) is not a significant violation of the ethics rules; or (c) does not raise a substantial question of honesty, trustworthiness or fitness.

At the same time, the lawyer must also consider the lawyer's own motivations in reporting or not reporting the possible violation. An "unwillingness to get involved" is simply not an adequate reason to fail to report a significant violation of professional rules which raises a substantial question of honesty, trustworthiness or fitness of another lawyer. On the other hand, spite, anger, vengeance, or seeking advantage for a client are not adequate motivations to report the conduct of an adversary whose conduct could not be deemed to be a significant violation of the rules raising a substantial question of the lawyer's honesty, trustworthiness or fitness. MRPC 4.4 prohibits a lawyer from using means that have no substantial purpose other than embarrassment or delay. See also MRPC 3.1, 4.1; R-9.

Just as the lawyer is ethically duty bound to make a reasoned determination concerning both the significant nature of the purported violation and whether it raises a substantial question of honesty, trustworthiness and fitness, the lawyer must also address the issue of how and in what fashion the information came to light, and specifically the issue of client privilege. MRPC 8.3(c) does not require disclosure of information protected by MRPC 1.6.

Prior to adoption of the Michigan Rules of Professional Conduct, the Michigan Code of Professional Responsibility addressed the lawyer's obligation to report professional misconduct in Canon 1, DR 1-103(A) and (B), and mandated that a lawyer possessing unprivileged knowledge of misconduct had a duty to report the violation. The issue was addressed in CI-572, CI-731, 695, 841 and 948. C-229 confirmed that a lawyer who received unprivileged information of another lawyer's violation of the Code of Professional Responsibility was obliged to report that misconduct to the Attorney Grievance Commission, even though the disclosure may be detrimental to the client's economic interests and contrary to the client's instructions. Because of the material change in language between the former Code and the present Rules, Opinion C-229 requires further discussion.

At least two scenarios are presented. In the first, all information concerning the offending lawyer's misconduct comes from the client, and the client instructs present counsel not to report the conduct in question. MRPC 8.3(c) does not require the disclosure of information otherwise protected by MRPC 1.6. Under MRPC 1.6, "confidences" and "secrets" are protected. "Confidences" refers to information protected by the client-lawyer privilege, and "secrets" refers to other information gained in the professional relationship that the client has requested be held inviolate, the disclosure of which would be embarrassing or would likely be detrimental to the client. MRPC 1.6 further provides that except as permitted under paragraph (c), a lawyer shall not knowingly reveal a confidence or secret of a client. Applicable exceptions are included where the confidences or secrets are revealed with the consent of the client or where the confidences or secrets are permitted or required by these rules to be revealed, i.e., rectification, prevention of crime, etc.

The lawyer certainly has a duty to attempt to fully explain to a client the consequences of failure to disclose the misconduct of a lawyer to the proper authorities, and try to persuade the client to either directly report the misconduct or to permit the lawyer to reveal that misconduct to the proper authorities. If the client, after full disclosure by the lawyer of the client's options, declines to permit the lawyer to report the conduct in question, MRPC 1.6 prohibits disclosure regardless of whether the information received is a client "confidence" or a client "secret." See RI-57.

In the second scenario, the lawyer does not obtain the information directly from the lawyer's client, but in the course of independent investigation discovers information from which it could be concluded that a significant violation of the rules raising a substantial question of the lawyer's honesty, trustworthiness or fitness exists, the lawyer may be disciplined for failure to report. In In re Himmel, 533 NE2d 790 (Ill 1988), a client's predecessor lawyer converted the proceeds of the client's personal injury claim to the lawyer's own use. The client hired a new lawyer to retrieve the funds from the predecessor lawyer. The successor lawyer obtained an agreement for the client under which the predecessor lawyer would make periodic payments to the client in exchange for the client agreeing not to initiate any criminal, civil or attorney disciplinary action against the predecessor lawyer. The lawyer breached the agreement, and the successor lawyer obtained a civil judgment for the amount outstanding.

The Illinois court held that the successor lawyer's knowledge of the predecessor lawyer's misconduct was not privileged, and that the successor lawyer's duty to report another lawyer's misconduct was not discharged when the client reported the matter to disciplinary authorities, nor was the lawyer's failure to report excused by the client's instruction not to report. The court was particularly disturbed that the lawyer accepted a settlement agreement rather than report the misconduct. The successor lawyer was suspended from the practice of law for one year.

A lawyer may not directly, or indirectly through the client, utilize the alleged misconduct as a means of obtaining an advantageous resolution of the client's own matter. A lawyer may not "threaten" an offending lawyer with reporting the misconduct if restitution is not made, or "warn" an offending lawyer that if the matter is not resolved to the satisfaction of the client, the client may report the offending conduct. See MRPC 8.4(c), RI-78. Although the lawyer is bound to maintain client confidences and client secrets at the request and bidding of the client, the lawyer may not use a threat of the alleged misconduct as a way of inducing, coercing or inviting favorable settlement on behalf of the client, even if it is in the client's interest, and the client must be so informed.

Concepts of professionalism and duties to the administration of justice, when coupled with the self-regulatory nature of the legal profession, mandate both an understanding by the lawyer of the lawyer's duty to report a substantial violation bearing upon a lawyer's honesty, trustworthiness or fitness, and the duty to cooperate with disciplinary authorities. Such decisions, however, cannot be made in a factual vacuum. In making any such decision, the lawyer must understand and appreciate the scope of the lawyer's responsibility, the nature of the privileges held by the client, and the need to fully inform the client with reference to the lawyer's and the client's responsibilities. The lawyer is mandated, in any event, not to use the incident in question as a tool to extract concessions for and on behalf of the client, and must assure that neither the lawyer nor the client profit from their failure to report a substantial violation, even when not compelled to report.

Therefore, a lawyer may not offer or make an agreement restricting a party or counsel for a party from bringing information concerning a lawyer's ethical misconduct to the attention of the Attorney Grievance Commission. A lawyer may not report to the Attorney Grievance Commission information protected by MRPC 1.6 without the client's consent. A lawyer may, but is not required to report to the Attorney Grievance Commission other ethical misconduct known to the lawyer.