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Ethics Advisory Opinion 05-21

April 13, 2005

South Carolina Bar Ethics Advisory Opinion 05-21

RULES 1.6, 8.3, and 8.4

Date: November 18, 2005

Questions:  

  • Does a lawyer’s fiduciary duty to his partner/former partner mitigate against his duty to:
    • Inform the Bar/Court of his partner’s/former partner’s unethical conduct and/or
    • His partner’s potential/actual criminal conduct?
  • Does the fact that the lawyer has informed the relevant solicitor of 1(b) have any bearing/affect on lawyer’s duty under number 1 above?

 Summary:
1. No. The inquirer’s duty under the Rules of Professional Conduct with regard to reporting violations of the Rules by another member of the Bar is not affected by any professional or fiduciary relationship between the inquirer and the member in question.

2. No. The duty to report violations of the Rules of Professional Conduct is not satisfied by notifying a Solicitor.

Opinion:

1.
The parameters of the duty to report violations of the Rules of Professional Conduct are set forth in Rule 8.3. Pursuant to Rule 8.3, members of the Bar are required to report any known violation that raises a substantial question as to the honesty, trustworthiness, or fitness as a lawyer of the attorney who committed the violation. Rule 8.3(a).

The extent to which criminal activity may also be characterized as a violation of the Rules of Professional Conduct is set forth in Rule 8.4. The Rule provides that a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, or that involves moral turpitude, is to be regarded as a violation of the Rules of Professional Conduct. Rule 8.4(b), (c).

Neither Rule 8.3 nor Rule 8.4 supports the proposition that there is a lesser duty to report known violations committed by another lawyer with whom the inquirer is or was in a professional or fiduciary relationship. To conclude otherwise would be to permit attorneys to evade or compromise their obligations under the Rules by entering into a voluntary arrangement such as a business partnership. Thus, the relationship between the inquirer and the partner or former partner has no bearing on the inquirer’s obligations under Rules 8.3 and 8.4.

The inquirer is cautioned that several limitations on the reporting obligation should be observed. First, under Rule 8.3(c), Rule 1.6 must be consulted in the event that any release of confidential client information is implicated. Rule 8.3(c) would apply, inter alia, where an attorney-client relationship exists between the reporting member and the member in question. Absent client consent, certain violations may not be subject to disclosure.

Second, Rule 8.3 applies to “known” violations only, rather than to “potential” violations. It is not appropriate to report another member of the Bar for conduct other than an actual violation of which the reporting member has knowledge.

Finally, it appears that this inquiry may have arisen in the context of a recent dissolution of a partnership. Given the acrimony that sometimes accompanies such a dissolution, it is worthwhile to note that reporting under Rule 8.3 is a serious step which should be taken only for the reasons set forth in the Rule, and not as a weapon in a dispute arising out of the dissolution. See S.C. Bar Ethics Adv. Op. 02-13 (“accusing another lawyer of misconduct is a serious matter that should not be undertaken lightly”).

2.
Rule 8.3 by its plain terms requires that professional misconduct be reported to “the appropriate professional authority.” Rule 8.3(a) (emphasis added). Reporting objectionable conduct to a Solicitor does not meet the obligation imposed by Rule 8.3 because the Solicitor is not a professional authority as contemplated by the Rule. Therefore, the fact that the Solicitor was informed has no bearing on the inquirer’s obligations under the Rules.

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