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Ethics Advisory Opinion 05-03

April 13, 2005

South Carolina Bar Ethics Advisory Opinion 05-03

RULES 4.1, 8.3 AND 8.4

Date: January 14, 2005

Facts
Client consults with Lawyer A. Client has received a letter from Lawyer B who is representing Client’s ex-wife. In the letter, Lawyer B tells Client that, under the terms of the court order, he is required to take a drug test. The letter further states that if Client did not appear, Lawyer B may use such failure as proof of a positive drug test.

There is no such requirement in the divorce decree. Lawyer A called Lawyer B and asked if there was another order besides the divorce decree. Lawyer B said the divorce decree was the only order and that it had no requirement that Client submit to a drug test. She further informed Lawyer A that she and the ex-wife “were on a fishing expedition.”

Question
Is Lawyer A under an obligation to report Lawyer B to the Commission on Lawyer Conduct?

Summary
Lawyer is under an obligation to report Lawyer B to the Commission on Lawyer Conduct. The Rules of Professional Conduct require the report of a violation of the Rules which raises a substantial question of a lawyer’s honesty, trustworthiness or fitness to practice law. Although a lawyer has some latitude in negotiation with an opposing party (or the opposing party’s counsel), a lawyer is required to be truthful. Lawyer B’s communication was an intentional misrepresentation of material fact.

Opinion
The Rules of Professional Conduct require the report of a violation of the Rules which raises a substantial question of a lawyer’s honesty, trustworthiness or fitness to practice law. See Rule 8.3 - Reporting Professional Misconduct. Rule 8.4 states that it is professional misconduct for a lawyer to, among other things, “[v]iolate or attempt to violate the Rules of Professional Conduct, [or] [e]ngage in conduct involving dishonesty, fraud, deceit or misrepresentation.” SCRPC Rule 8.4(a) & (d).

Lawyer B’s conduct–the intentional misrepresentation of material facts to Client regarding Client’s legal rights and obligations–violates Rule 8.4 and Rule 4.1. Rule 4.1(a) states that “[i]n the course of representing a client a lawyer shall not knowingly . . . [m]ake a false statement of material fact or law to a third person.” “Knowingly” denotes actual knowledge. Rule 407, SCACR, Terminology. Although a lawyer has some latitude in negotiation with an opposing party (or the opposing party’s counsel) (see Rule 4.1, Comments), a lawyer is required to be truthful when dealing with others on a client's behalf. Rule 4.1, Comments. Although Lawyer B couched the communication in innocuous terms of a “fishing expedition,” Lawyer B was well aware that the representations to Client were false and admitted as much to Lawyer A.

South Carolina Rule of Professional Conduct 8.3 states that “[a] lawyer having knowledge 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.” This reporting rule exists because the legal profession is, and wishes to remain, self-regulating. As stated in the Preamble to Rule 407 SCACR: If lawyers meet the obligations of the profession, “the occasion for government regulation is obviated. Self-regulation also helps maintain the legal profession's independence from government domination. . . . The legal profession's relative autonomy carries with it special responsibilities of self-government. . . .Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.” Rule 407, SCACR, Preamble.

Although no one would enjoy being put in a position of having to report a fellow member oft he Bar, the Rules of Professional Conduct removes the option of such a decision from the reporting lawyer. “Some of the Rules are imperatives, cast in the terms ‘shall’ or ‘shall not.’ These define proper conduct for purposes of professional discipline.” Rule 407, SCACR, Scope. Rule 8.3 contains “shall.” The Comment to Rule 8.3 states “An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover.” This Comment relieves those in Lawyer A’s position from the responsibility of having to determine whether there is a pattern of misconduct and leaves it to the disciplinary counsel to investigate. In sum, lawyers must maintain the highest standards of professional conduct. Lawyers must initiate such investigations into egregious rule violations by fellow lawyers for the protection, preservation and maintenance of the integrity and reputation of the entire legal profession.

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