Permissive Reporting

Rule 8.3(c) provides that Rule 8.3 “does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.”¹ The operative verb is “require.” The clause lifts an obligation and forbids no report, so a lawyer who is excused from reporting may still want to report. Whether that lawyer may is a second question, and the answer comes from Rule 1.6.

The mandatory duty in paragraphs (a) and (b) can fail for three separate reasons. The lawyer may lack actual knowledge of the violation. The violation may fall short of raising a substantial question about the other lawyer's honesty, trustworthiness, or fitness. Or Rule 1.6 may protect the information. Each failure ends the obligation, and none says whether a lawyer who wants to report may do so.

Permission therefore turns on whether the information is confidential. Because Rule 8.3(c) narrows the duty without prohibiting reports, a lawyer's freedom to report depends on whether Rule 1.6 stands in the way.² Where no Rule 1.6 information is involved, the Rules block nothing, and the decision is one of judgment. Where the information is confidential, the protection that excused the duty also limits permission, and the lawyer may speak only with the client's informed consent or under another Rule 1.6 exception. The subsections below take the simpler case first, then the two routes by which confidential information becomes reportable.

Reporting Non-Confidential Information

No sentence in Rule 8.3 or its comments says in so many words that a lawyer may report; permission follows from the way the Rules are built. Rule 8.3 defines a mandatory duty and carves exceptions out of it. The restriction that matters here comes from Rule 1.6, which allows a lawyer to reveal information relating to a client's representation only with the client's informed consent, when the disclosure is impliedly authorized to carry out the representation, or when an exception applies.³ Where no Rule 1.6 information is involved, nothing in Rule 8.3 stands between the lawyer and a report, even when the duty to make one has not arisen.⁴ Information gained in an approved assistance program is a separate case, because the Rules leave its confidentiality to the program's own rules or other law.⁵

Two of the three failures have nothing to do with confidentiality. When either occurs and no Rule 1.6 information is involved, the only remaining question is whether to report. The first failure is a lack of knowledge. Rule 8.3(a) adopts the definition of “knows” in Rule 1.0(f), which means actual knowledge of the fact in question, so a subjective belief that misconduct may have occurred is not enough. The duty arises when the lawyer has a firm factual basis, typically personal knowledge, although absolute certainty is not required.⁶ Rumor and suspicion fall short of that line. A credible colleague's account joined by facts that corroborate it can supply the firm basis; the same account with nothing to confirm it may leave the lawyer without actual knowledge.

The second failure is a lack of substantiality. Rule 8.3(a) limits the duty to a violation that raises a substantial question about the other lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects, and Rule 8.3(b) limits the duty concerning a judge to a matter raising a substantial question about the judge's fitness for office.⁷ Comment [3] explains that “substantial” refers to the seriousness of the possible offense and not to the quantum of evidence the lawyer holds.⁸ The two limits therefore measure different things. Knowledge measures how sure the lawyer is; substantiality measures how serious the violation would be if the lawyer's information is correct. A lawyer can be certain of a violation too minor to trigger the duty, or gravely worried about one that is serious but not firmly known.

Both limits make the mandatory duty a floor, and Comment [3] explains where the floor sits. A duty to report every violation existed in many jurisdictions and proved unenforceable, and under it the failure to report any violation was itself a professional offense.⁹ The Rule instead confines the obligation to offenses that a self-regulating profession must vigorously endeavor to prevent, and it accepts that a measure of judgment is required to apply that line.¹⁰ The line was drawn to produce an enforceable duty, and the profession's interest in learning of misconduct extends past it. Comment [1] observes that an apparently isolated violation may indicate a pattern that only a disciplinary investigation can uncover, and that reporting matters most where the victim is unlikely to discover the offense.¹¹

The friend is therefore free to report, and the decision belongs to her judgment. A common error treats the end of the mandatory duty as the end of the analysis, on the theory that a lawyer with no duty to report must stay silent. Nothing in Rule 8.3 supports that step, because the Rule defines when reporting is compelled and says nothing against reports below that line. Judgment can point either way. A seemingly technical violation may be the first sign of personal problems spreading into a lawyer's practice, and early intervention by the disciplinary authorities could then be salutary.¹² Yet a lawyer who stays silent about a minor violation breaks no duty under Rule 8.3.¹³

The friend's freedom depends on how the remark reached her. She can weigh a report freely because it arrived over lunch, from a friend. Had the speaker instead asked her whether the payment broke the rules, the same words would have come to her in the course of a representation, and Rule 1.6 protects information relating to a representation whatever its source.¹⁴ She could then report only if the speaker gave informed consent or another exception to Rule 1.6 applied, which are the subjects of the next two subsections.

A second case isolates the knowledge limit.

Confirmation would change the answer. If the lawyer later sees a trust-account ledger showing the missing deposits, a firm factual basis exists, converting client funds goes to honesty and so raises a substantial question, and the mandatory duty attaches unless Rule 1.6 protects what she saw. Until then a report is a judgment call with costs on both sides. It may bring a serious problem to light early, and it may damage another lawyer's reputation on thin information.

A report, when made, should go to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances, and similar considerations apply to reports of judicial misconduct.¹⁵ Comment [3] speaks of reports under the Rule, so applying it to a voluntary report is an extension. It is a sensible one, because the agency best placed to evaluate the information does not depend on whether the lawyer was compelled to supply it.

Rule 8.3(c) excuses a lawyer from disclosing “information otherwise protected by Rule 1.6,” and that wording hands the next decision to the client.¹⁷ Rule 1.6(a) lets a lawyer reveal information relating to the representation when the client gives informed consent, when the disclosure is impliedly authorized to carry out the representation, or when an exception in Rule 1.6(b) applies, and client permission is the primary and typical basis for disclosure.¹⁸ Because the secrecy exists for the client's benefit, the client holds the power to lift it. A lawyer who learned of another lawyer's misconduct through a client's matter therefore depends, in most cases, on the client's willingness to consent before any report can be made.¹⁹ Consent is the ordinary route to a lawful report of confidential information; the other Rule 1.6 exceptions, taken up in the next subsection, are the less common ones.

Comment [2] to Rule 8.3 confirms where the excuse comes from: a report is not required where it would involve a violation of Rule 1.6.²⁰ The excuse rests on the confidentiality duty alone. Once the client gives informed consent, a report no longer violates Rule 1.6, and the ordinary requirements of actual knowledge and a substantial question decide whether the lawyer must report or merely may. The final section of this chapter folds those requirements into a full sequence of analysis. For now, consent is what makes a report lawful.

Consent counts only when it is informed. Rule 1.0(e) defines informed consent as agreement to a proposed course of conduct after the lawyer has communicated “adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”²¹ In a report about another lawyer the material risks are specific: the client may have to testify in the disciplinary proceeding, and a successful prosecution can draw public attention to the matter.²² How much explanation suffices varies with the stakes. A client who understands an innocuous disclosure needs little, while a disclosure with significant consequences calls for a fuller account.²³ The reason for demanding this much follows from who bears the cost. The disciplinary process serves the profession and future clients, but its burdens of testifying, exposure, and reliving a painful matter fall on the client who supplied the information. A yes given without knowledge of those burdens is agreement to something other than what will happen, so the lawyer must make the costs visible before the client decides.

Even a fully informed client may say no, and many do. Clients, including those who have just pursued a malpractice claim against a former lawyer, are often exhausted when the litigation ends, ready to leave a painful experience behind, and unwilling to serve as witnesses in a disciplinary matter.²⁴ The client makes the final decision on whether to waive confidentiality, and that decision binds the lawyer. If the lawyer's interest in self-regulation could override a refusal, every confidence that exposed another lawyer's wrongdoing would be at risk, and clients who feared that result would withhold the very facts the lawyer needs. A refusal also leaves the lawyer with no reporting duty, because Rule 8.3(c) has already excused disclosure of the protected information.²⁵

The exam version of this issue asks what the lawyer may do once the client has been consulted, and the answer follows the client's response.

The lawyer holds the same knowledge in both scenes, and the client's response alone separates a lawful report from a violation. A lawyer who reports without asking, or over a refusal, discloses information relating to the representation without the client's consent or an applicable exception.²⁶ Consent must also be real. A lawyer who calls the report a mere formality has not obtained informed consent, because the client never heard about the testimony and publicity that the report may bring.

Comment [2] gives the lawyer a role between silence and a unilateral report: the lawyer should encourage the client to consent where prosecution would not substantially prejudice the client's interests.²⁷ Encouragement takes the form of explanation and company. The lawyer can explain the importance of the disciplinary process and its value in protecting other people from similar misconduct.²⁸ The lawyer can also offer to serve as a supporting friend to the client throughout the proceeding, as the lawyer's own contribution to the profession and not billed to the client.²⁹ That offer meets the cost that most often stops clients, the prospect of facing the process alone, and it can turn a no into a yes. The encouragement and the risk disclosure work together. A lawyer who stresses the value of the process while leaving out the burden of testifying has persuaded the client without informing the client, and consent obtained that way is not informed. Where prosecution would substantially prejudice the client's interests, the comment's encouragement does not apply, and a client who chooses silence needs no further persuasion.

Other Rule 1.6 Exceptions

Rule 8.3(c) excuses a lawyer from disclosing “information otherwise protected by Rule 1.6” and adds no exception of its own for reports of misconduct.³¹ The text relieves a duty and creates no permission, so a lawyer who holds confidential information about another lawyer's violation must find permission inside Rule 1.6. Client consent is the usual source. Rule 1.6 also lists situations in which a lawyer may reveal client information without consent, and those situations apply to information about another lawyer's misconduct just as they apply to any client confidence. The paragraphs below name the exceptions most likely to matter and show why a lawyer cannot assume that a report of misconduct qualifies.

Rule 1.6(b) of the Model Rules permits a lawyer to reveal information relating to the representation of a client to the extent the lawyer reasonably believes it necessary for several purposes. The ones most likely to bear on a lawyer who learns of misconduct through a client are these:

preventing reasonably certain death or substantial bodily harm;
preventing a client's crime or fraud that is reasonably certain to cause substantial financial injury to another, when the client has used or is using the lawyer's services;
preventing, mitigating, or rectifying that kind of financial injury after the client has used the lawyer's services in the crime or fraud;
securing legal advice about the lawyer's own compliance with the Rules; and
establishing a claim or defense for the lawyer in a dispute with the client, defending against a criminal charge or civil claim based on conduct in which the client was involved, or responding to allegations about the representation in any proceeding.

Each exception pairs an interest weightier than secrecy with a real need to speak. Death and serious bodily harm cannot be repaired afterward, so the Rules let the lawyer act before they occur. The two financial exceptions require that the client used the lawyer's services, because a client who enlists a lawyer in a scheme is asking the lawyer to help produce an injury that secrecy would then conceal. The compliance exception exists because a lawyer who cannot describe the facts to an adviser cannot get counsel about the lawyer's own obligations, and the self-defense exception exists because a lawyer accused of wrongdoing cannot fairly be expected to answer while forbidden to tell what happened.

Three features limit every one of these exceptions. First, each is permissive: the Rule says a lawyer may reveal the information, so an exception that applies never obliges the lawyer to speak. Second, each reaches only what the lawyer reasonably believes necessary for its purpose. The New Jersey Supreme Court described that structure when it said its corresponding provision permits, but does not require, disclosure to the extent the lawyer reasonably believes necessary to rectify the consequences of a client's fraud.³² The limit follows from the reason for the exception. The harm justifies the disclosure, so only the part that prevents or repairs the harm has a justification, and anything beyond it is a client confidence told to someone who did not need it. Third, the exceptions are read according to their terms. A lawyer's sense that disclosure would be wise cannot stand in for facts that match the exception.

The New Jersey decision in A. v. B. shows what it means for the facts to match. A law firm argued that New Jersey's RPC 1.6(b) applied and required it to tell a wife that her husband had an illegitimate child.³³ The court held that the facts did not justify mandatory disclosure, because the child's possible inheritance of the wife's estate was too remote to be substantial injury to the financial interest or property of another.³⁴ The firm had pointed to a real provision, and the provision still did not apply, because the harm it describes was missing. New Jersey's rule, as the court applied it, made one category of disclosure mandatory, while the Model Rule makes these disclosures permissive. The case therefore teaches that the facts must actually fit the exception, and its wording is no guide.

Treating the seriousness of the other lawyer's misconduct as the trigger is the error these exceptions invite. Every exception turns on the harm the disclosure would prevent or repair, on the client's use of the lawyer's services, or on the lawyer's own need for advice or defense, and none turns on the fact that another lawyer broke a rule. A client in a malpractice case who describes how a former attorney converted settlement funds has described grave misconduct, yet the theft is the former attorney's crime and not the client's, no one faces death, and the lawyer is neither seeking compliance advice nor defending a claim. No exception fits, so the information stays protected and the lawyer may report only with the client's informed consent. Rule 8.3(c) supplies no exception of its own, and a lawyer who treats a report to a disciplinary agency as one has invented it.

An exception that applies supplies permission to reveal the information. Whether the ordinary requirements of knowledge and a substantial question then make a report required, as opposed to merely allowed, is part of the working sequence that the next section assembles.