Other Exceptions to Reporting

Two more situations excuse a lawyer who knows of another lawyer's misconduct, and neither turns on a client's confidences. The first appears in the text of Rule 8.3(c), which provides that the Rule does not require disclosure of "information gained by a lawyer or judge while participating in an approved lawyers assistance program."¹ The second comes from Comment [4]: the duty to report does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question.²

Both exceptions rest on one premise. A lawyer whose problem could cost a license, whether an impairment or a lapse already committed, must decide whether to seek help or advice, and the person consulted is of little use if every disclosure must be forwarded to the disciplinary agency. Excusing the duty in these two settings keeps the consultation open. The confidentiality carve-out protects what clients tell their lawyers. These two exceptions protect what lawyers and judges tell the people they turn to about their own situations.

Lawyers Assistance Programs

Rule 8.3(c) reaches beyond Rule 1.6 information. Its second clause excuses disclosure of information gained by a lawyer or judge while participating in an approved lawyers assistance program, whether or not any client's confidences are involved.³ Paragraph (c) speaks of the whole Rule, and Comment [5] describes the exception as one to paragraphs (a) and (b), the duties to report lawyer and judicial misconduct.⁴ A lawyer who counsels in such a program, or sits in one of its group sessions, may represent no one there, so Rule 1.6 may have nothing to say about what she hears. The second clause answers that case directly.

A lawyer serving as a counselor, or taking part in a group session, may hear about conduct that amounts to professional misconduct. When that happens, the reporting duty is suspended.⁵ The exception is not limited to completed wrongdoing, because Comment [5] speaks of information about a lawyer's or judge's misconduct or fitness.⁶

Comment [5] supplies the reason. Without the exception, "lawyers and judges may hesitate to seek assistance from these programs, which may then result in additional harm to their professional careers and additional injury to the welfare of clients and the public."⁷ A program that had to forward what its participants say would discourage the people it exists to reach, and an untreated problem keeps producing the harm the reporting duty was meant to prevent. The exception has a cost, since misconduct a report might have exposed stays unreported. The Rules accept that cost because the exception encourages lawyers and judges to seek treatment.⁸

Two conditions confine the clause. The first is that the information must be gained while participating in the program. The exception attaches to the channel through which the information arrived and does not travel with the facts, so the same conduct learned somewhere else is analyzed on its own footing.

In the over-drinks version the ordinary analysis governs. The lawyer must actually know of the violation, which takes more than a subjective belief: the duty arises when the lawyer has a firm factual basis, typically personal knowledge, although absolute certainty is not required.⁹ The offense must also be serious enough to be "substantial," a term that Comment [3] says refers to the seriousness of the possible offense and not to the quantum of evidence the lawyer has.¹⁰

The second condition is that the program must be approved. The clause covers information gained in an "approved" program, and that word ties the excuse to programs the profession has recognized, the setting in which giving up reports buys encouragement of treatment. An informal gathering offers no such assurance, whatever it calls itself.¹¹

The clause also has a limit on what it accomplishes. It removes the mandatory duty, but Comment [5] states that the Rules do not otherwise address the confidentiality of information received in an approved program, and that any obligation of confidentiality may be imposed by the rules of the program or other law.¹² That makes this clause different from the Rule 1.6 carve-out, where the Rules themselves forbid disclosure without the client's informed consent. Here no client's consent controls, and a student who writes that Rule 8.3(c) itself bars the lawyer from speaking has credited the Rule with something it leaves to other sources.

Lawyers Representing Lawyers

Comment [4] to Rule 8.3 supplies the second exception. The duty to report professional misconduct "does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question," and the situation "is governed by the Rules applicable to the client-lawyer relationship."¹⁴ This exception has a different source from the assistance-program clause. The text of Rule 8.3(c) names only the confidentiality clause and the assistance-program clause,¹⁵ so the retained-lawyer exception is a corollary of the client-lawyer relationship that a comment spells out. The Rule's text does not state it as a separate exclusion.

The reason follows from what a defense requires. A lawyer defending a disciplinary matter can do the job only by learning the worst facts, including the ones that would sustain the charge. If the retained lawyer had to report those facts, the accused would have to choose between withholding the truth from the one person hired to help and going without counsel at the moment a license is at stake. Sending the situation to the client-lawyer rules gives the accused lawyer the candor protection every client has. The exception has a cost, because Comment [1] stresses that self-regulation depends on lawyers initiating disciplinary investigations.¹⁶ The Rules accept that a retained lawyer will not be a source of reports, in exchange for an accused lawyer who can speak freely to counsel.

The exception overlaps with the confidentiality shield but is not identical to it. A lawyer retained to defend a colleague learns the facts through the representation, so Rule 1.6 would ordinarily protect them, and Comment [2] says a report is not required where it would involve a violation of Rule 1.6.¹⁷ Comment [4] still does two things. It tells the retained lawyer directly that the mandatory duty is not triggered, so there is no need to begin with questions about knowledge and substantiality. It also says where the remaining questions are answered: what the retained lawyer may disclose is decided by the client-lawyer rules, chiefly Rule 1.6 and its exceptions, which are taken up with permissive reporting below. The comment excuses a duty to report. It does not give the retained lawyer a free-standing license to report.

For the second lawyer the reporting analysis starts from the beginning. The lawyer must actually know of the violation, which means a firm factual basis and not mere suspicion, though absolute certainty is not required.¹⁸ The lawyer must also ask whether any Rule 1.6 information is involved. The two scenes show that the exception attaches to the retention itself. It does not attach to the subject of the conversation, to friendship with the accused, or to the seriousness of what was said, and a lawyer who has not been retained cannot borrow the comment's protection, however sympathetic the listener may be.