Summary: The conduct of an
out-of-state attorney who deliberately misrepresented that he was
representing a client in order to induce Lawyer's client to settle
a matter falls within the requirement of Rule 8.3(a) mandating that
Lawyer report the conduct to Bar Counsel of the Board of Bar
Overseers. On the facts of this inquiry, however, the Lawyer's
information is protected by Rule 1.6, and therefore under Rule
8.3(c) Lawyer needs client consent to make such a report.
Facts: Out-of-state attorney A
threatened suit on behalf of B against C in Massachusetts. C hired
Massachusetts Lawyer (ML) who filed a declaratory judgment action
on behalf of C against B, alleging A's threat and seeking a
declaration of no liability on C's part. B then advised C
and ML that A was not, and had never been, B's lawyer and that
B never intended to sue C. ML contacted A, who provided what ML
regarded as an incoherent response to B's accusation and then
claimed that attorney-client privilege prevented further
explanation. C then directed ML to discontinue the declaratory
judgment action. ML asks whether she has a duty under Rule 8.3 to
notify Bar Counsel about A's conduct or whether, per Comment 3 to
that Rule, such a report is optional.
Discussion: Rule 8.3 provides:
(a) 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 Bar
Counsel's office of the Board of Bar Overseers. . . .
(c) This rule does not require disclosure of information
otherwise protected by Rule 1.6 . . .
Comment 3 states in part:
[3] While a measure of judgment is required in complying with
the provisions of the Rule, a lawyer must report misconduct
that, if proven and without regard to mitigation, would likely
result in an order of suspension or disbarment, including
misconduct that would constitute a "serious crime" as defined in
S.J.C. Rule 4:01, § 12(3). Precedent for determining whether
an offense would warrant suspension or disbarment may be found in
the Massachusetts Attorney Discipline Reports. Section 12(3) of
Rule 4:01 provides that a serious crime is "any felony, and … any
lesser crime a necessary element of which … includes interference
with the administration of justice, false swearing,
misrepresentation, fraud, willful failure to file income tax
returns, deceit, bribery, extortion, misappropriation, theft, or an
attempt or a conspiracy, or solicitation of another to commit [such
a crime]." . . . Rule 8.3 does not preclude a lawyer from reporting
a violation of the Massachusetts Rules of Professional Conduct in
circumstances where a report is not mandatory. (Emphasis added)
Similarly, Rule 8.4(c) provides that it is professional
misconduct for a lawyer to "engage in conduct involving dishonesty,
fraud, deceit, or misrepresentation."
Rule 8.3, read together with the comment and Rule 8.4, thus
requires ML to report conduct to Bar Counsel if ML
reasonably believes that an attorney has engaged in conduct that
constitutes fraud or misrepresentation. If, as seems clear from the
facts presented, ML believes that A deliberately misrepresented
that he was the attorney for B for the purpose of fraudulently
inducing C to resolve the matter with his supposed client B, the
Committee believes that reporting the matter to Bar Counsel is
mandatory. Bar Counsel may then decide whether she wishes to report
the conduct to the relevant official in A's jurisdiction. While
trivial misrepresentations would not warrant mandatory reporting,
the Committee believes that the misrepresentation described in
these facts does warrant mandatory reporting.
Rule 8.3(c), however, provides an exception for confidential
information protected by Rule 1.6. Rule 1.6(a) provides that "A
lawyer shall not reveal confidential information relating to
representation of a client unless the client consents after
consultation, except for disclosures that are impliedly authorized
in order to carry out the representation. . . ." Rule 1.6(a) thus
requires us to decide first whether the information that A
committed fraud was confidential information of C and second
whether revelation of that information was "impliedly authorized to
carry out the representation."
"Confidential information" is not defined in the text of Rule
1.6(a). It is discussed, however, at some length in Comments 5, 5A,
and 5B. These Comments provide:
[5] The principle of confidentiality is given effect in two
related bodies of law, the attorney-client privilege (and the
related work product doctrine) in the law of evidence and the rule
of confidentiality established in professional ethics. The
attorney-client privilege applies in judicial and other proceedings
in which a lawyer may be called as a witness or otherwise required
to produce evidence concerning a client. The rule of client-lawyer
confidentiality applies in situations other than those where
evidence is sought from the lawyer through compulsion of law. The
confidentiality rule applies not merely to matters communicated in
confidence by the client but also to virtually all information
relating to the representation, whatever its source. The term
"confidential information" relating to representation of a client
therefore includes information described as "confidences" and
"secrets" in former DR 4-101(A) but without the limitation in the
prior rules that the information be "embarrassing" or "detrimental"
to the client. Former DR 4-101(A) provided: " 'Confidence' refers
to information protected by the attorney-client privilege under
applicable law, and 'secret' refers to other information gained in
the professional relationship that the client has requested be held
inviolate or the disclosure of which would be embarrassing or would
likely [] be detrimental to the client." See also Scope.
[5A] The word "virtually" appears in the fourth sentence of
paragraph 5 above to reflect the common sense understanding that
not every piece of information that a lawyer obtains relating to a
representation is protected confidential information. While this
understanding may be difficult to apply in some cases, some
information is so widely available or generally known that it need
not be treated as confidential. The lawyer's discovery that there
was dense fog at the airport at a particular time does not fall
within the rule. Such information is readily available. While a
client's disclosure of the fact of infidelity to a spouse is
protected information, it normally would not be after the client
publicly discloses such information on television and in newspaper
interviews. On the other hand, the mere fact that information
disclosed by a client to a lawyer is a matter of public record does
not mean that it may not fall within the protection of this rule. A
client's disclosure of conviction of a crime in a different state a
long time ago or disclosure of a secret marriage would be protected
even if a matter of public record because such information was not
generally known.
[5B] The exclusion of generally known or widely available
information from the information protected by this rule explains
the addition of the word "confidential" before the word
"information" in Rule 1.6(a) as compared to the comparable ABA
Model Rule. It also explains the elimination of the words "or is
generally known" in Rule 1.9(c)(1) as compared to the comparable
ABA Model Rule. The elimination of such information from the
concept of protected information in that subparagraph has been
achieved more generally throughout the rules by the addition of the
word "confidential" in this rule. It might be misleading to repeat
the concept in just one specific subparagraph. Moreover, even
information that is generally known may in some circumstances be
protected, as when the client instructs the lawyer that generally
known information, for example, spousal infidelity, not be revealed
to a specific person, for example, the spouse's parent who does not
know of it.
The specific information at issue is the fraudulent conduct of
A, his false representation that he was attorney for B and
authorized to assert a claim against C. The falsity of that
statement was neither generally known nor widely available. Nor did
ML learn of it in a fashion that any ordinary citizen might have
learned of it, as a witness so to speak. ML learned of it only in
his capacity as C's lawyer. It therefore appears to falls within
the very broad boundaries of "confidential information," as
discussed to in the Comments to Rule 1.6(a).
The next question is whether disclosure was "impliedly
authorized" to carry out the representation. In authorizing the
institution of the declaratory judgment action, C certainly
authorized disclosure of the threat of a lawsuit by B against
client C and the particulars of the threat. ML was not, however,
authorized to disclose the unauthorized nature of the threat
because at the time of filing the declaratory judgment action,
neither ML nor C knew that the threat was not authorized by B. When
ML learned of A's lack of authority and told C, C then authorized
ML to dismiss the declaratory judgment suit - which he had a right
to do. Revelation of B's lack of authority to the court and to Bar
Counsel was not necessary to the dismissal and therefore was not
"impliedly authorized" by the direction to dismiss. B had a right
at that stage of the litigation simply to dismiss the action.
Therefore the provision of Rule 8.3(c) that "This rule does not
require disclosure of information otherwise protected by Rule 1.6 .
. ." controls and, as Comment 2 makes clear, "A report about
misconduct is not required or permitted where it would involve
violation of Rule 1.6." The Comment goes on to advise, however that
"a lawyer should encourage a client to consent to disclosure where
prosecution would not substantially prejudice the client's
interests" and ML should therefore follow that advice.
This opinion was approved for publication by the
Massachusetts Bar Association's House of Delegates on May 17,
2012.