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Ethics Advisory Opinion 05-04

April 13, 2005

South Carolina Bar Ethics Advisory Opinion 05-04

RULES 1.5(a), 4.2, 8.3 AND 8.4

Date: January 14, 2005

Facts
Attorney Jane represents one of 20 defendants in a complex construction matter. The nature of the litigation requires extensive expert and factual depositions. During one of the many day-long depositions, Attorney Jane observes Attorney John reviewing a large stack of correspondence and other documents that are clearly not related to the ongoing deposition. Attorney Jane also observes Attorney John completing a time-entry sheet as he wades through the stack of correspondence. Attorney Jane is suspicious that Attorney John is double-billing for his time. Attorney Jane is not in the same firm as Attorney John, nor does Attorney Jane have any supervisory responsibility over Attorney John.

Questions
1) In light of the new Attorney’s Oath, what are Attorney Jane’s ethical obligations regarding reporting to the appropriate authorities under Rule 8.3 of the Rules of Professional Conduct?

2) Would Attorney Jane’s ethical obligations be different if, at the conclusion of the deposition, Attorney John turns to Attorney Jane and brags, “I don’t know about you, but I billed 15 hours today?”

3) Since Attorney John represents John Doe Insurance Company in this action, and John Doe Insurance Company is a major ongoing client of Attorney Jane’s law firm, what are Attorney Jane’s ethical obligations regarding reporting Attorney John’s behavior to John Doe Insurance Company?

Summary
1) Rule 8.3(a) requires reporting if an attorney has “knowledge” of another attorney’s conduct which “raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” The new Attorney’s Oath does not affect this requirement. If Attorney Jane has knowledge that Attorney John has violated the Rules of Professional Conduct and Attorney John’s conduct raises a “substantial question as to [his] honesty, trustworthiness or fitness as a lawyer,” then Attorney Jane must inform the appropriate authority. In the opinion of this Committee, Attorney Jane’s suspicion of double-billing, without other corroborating evidence, does not constitute knowledge which would require her to report the behavior under Rule 8.3(a).

2) No, Attorney Jane would undertake the same ethical analysis under Rule 8.3(a), and, in the opinion of the Committee, would also not be required to report the behavior.

3) Based upon the limited factual information available, Rule 4.2 does not prohibit Attorney Jane from contacting a major on-going client on this matter, since it is not the subject of that client’s representation by another attorney; however, Attorney Jane should exercise considerable caution in doing so.

Opinion
Rule 8.3(a) of the Rules of Professional Conduct governs reporting professional misconduct. “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.” The new Attorney’s Oath does not affect this requirement. The Preamble to the Rules of Professional Conduct defines “knowledge” as “actual knowledge of the fact in question.” “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.” Comment to Rule 8.3.

The Ethics Advisory Committee has previously determined that, absent “firm knowledge” of a violation of the Rules of Professional Conduct, an attorney may, but is not required to, report the violation. S.C. Bar Ethics Adv. Comm. Op. 95-07. In that opinion, the situation contained two different possible violations: contacting a represented person and failing to properly identify oneself as an attorney. The reporting attorney in that situation had knowledge from a questionable source regarding the misidentification but had an acknowledgment from the offending attorney that the inappropriate contact took place. The opinion concluded that the reporting attorney was required to report the inappropriate contact, but may not have been required to report the misidentification due to the lack of actual knowledge of the violation. In so concluding, the Committee noted that the requirement to report is unaffected by the frequency of the conduct, which may be something only a disciplinary investigation would be able to determine. Even a one-time violation must be reported if it falls under the guidelines of Rule 8.3 (a). S.C. Bar Ethics Adv. Comm. Op. 95-07.

“Since accusing another lawyer of misconduct is a serious matter that should not be undertaken lightly, Rule 8.3 requires actual knowledge of, or believing clearly that there has been a violation, which implies more than a suspicion of misconduct.” S.C. Bar Ethics Adv. Comm. Op. 02-13. If an attorney has such “firm knowledge” of a violation, the attorney must report the violation, unless the information is protected under Rule 1.6 (attorney-client privilege). Rule 8.3(d).

In addition, not all violations are given equal treatment. Only those violations which raise a “substantial question” about the offending attorney’s honesty, trustworthiness, or fitness as an lawyer in other respects are required to be reported. “The seriousness of the offense is a point to be considered.” S.C. Bar Ethics Adv. Comm. Op. 95-07. The official Comment to Rule 8.3 further clarifies that “the term ‘substantial’ refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware.”

Thus, each factual situation will require a dual analysis: 1) whether the attorney has actual knowledge of the violation; and 2) whether the violation raises a substantial question as to the violating attorney’s honesty, trustworthiness or fitness as a lawyer in other respects. The attorney must also consider that the primary goal behind the rule is to self-regulate the profession, but that not all violations must be reported.

In the proposed situation, if Attorney Jane has knowledge that Attorney John has violated the Rules of Professional Conduct, and Attorney John’s conduct raises a “substantial question as to [his] honesty, trustworthiness or fitness as a lawyer,” then Attorney Jane must inform the appropriate authority. It appears from the Factual Summary that Attorney Jane has a mere suspicion that Attorney John is double-billing in violation of Rules 1.5(a)(1) and 8.4. From this perspective, Attorney Jane does not have firm knowledge that a violation was committed. Therefore, Attorney Jane would not be required to notify the appropriate authorities. In the opinion of the Committee, even if Attorney John made the statement about billing 15 hours in one day, Attorney Jane would still have no actual knowledge of a violation, and therefore, would not be required to report. Attorney Jane has no “firm knowledge” of Attorney John’s schedule, or whether his statement reflects anticipated time to be spent during the evening or already spent on early morning work.

If Attorney John is representing John Doe Insurance Company in this matter, and Attorney Jane’s firm only represents John Doe Insurance Company in other matters, then Rule 4.2 governs Attorney Jane’s conduct toward the insurance company. Rule 4.2 prohibits communication about the subject of the representation with a party whom the attorney knows to be represented by another lawyer in that matter, unless the contacting attorney has the other lawyer’s consent to the communication. Clearly, Attorney John has not consented to any communication with his client in this matter. However, based upon the limited facts presented here, in the opinion of the Committee, Attorney Jane is not considering communication related to the subject of this representation and, as such, is not prohibited from communicating with a major on-going client. In the context of Attorney Jane’s relationship with the client, she would not be prohibited by Rule 4.2. Attorney Jane, however, should exercise considerable caution in doing so, and prudence may dictate another course of action.

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