Confidentiality as a Limit

Confidentiality as a Limit

Rule 8.3 compels reports, but the comments draw one line around that compulsion: a report about misconduct is not required where it would involve a violation of Rule 1.6, the rule that protects client confidences.¹ The same point runs the other way: the reporting duty does not override a lawyer's duty to maintain client confidences.²

This limit works differently from the three filters the earlier sections applied. A lawyer may identify the offender, know the facts firsthand, and see a serious question about the offender's fitness to practice, and still be excused from reporting. The earlier filters ask what the lawyer knows about the offender. Confidentiality asks where the knowledge came from and whose it is.

Rule 1.6(a) answers the second question. A lawyer may disclose confidential information only if the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or Rule 1.6(b) permits it.³ A report that fits none of those routes would itself violate Rule 1.6, and Rule 8.3 does not require it.⁴ The ordering makes practical sense. Lawyers usually learn that a colleague or opponent has behaved badly while working on a client's matter, so what they know is often confidential. If the reporting duty overrode that protection, clients would have reason to hold information back from the lawyers they depend on.

Change one fact and the answer changes. Suppose the lawyer saw the misconduct while representing no one, or learned of it from a source unconnected to any client's matter. Nothing in the confidentiality limit shields that knowledge, and paragraph (a) operates in the ordinary way. The knowledge is equally firm and the violation equally serious in both versions. The difference is whether the lawyer learned of it while serving a client. An exam answer that runs the three filters and stops has skipped the question that most often decides the outcome. An answer that treats confidentiality as a blanket excuse has overlooked every case where the lawyer's knowledge arrived outside a client's confidence.

Because the confidence belongs to the client, the route back to a report usually runs through the client. Consent under Rule 1.6(a) is the lawyer's way to lift the bar.⁶ Comment [2] therefore adds that a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client's interests.⁷ That encouragement keeps the profession's interest in self-regulation alive without taking the decision from the client. It never turns a refusal into permission to report, because the duty to report does not override the duty to keep client confidences.⁸

One more exception follows the same logic. A lawyer who receives information about another lawyer's or a judge's misconduct or fitness through an approved lawyers or judges assistance program is excepted from the reporting requirements of paragraphs (a) and (b). Without that exception, lawyers and judges might hesitate to seek help from these programs, which could harm their careers and injure clients and the public.⁹