Ethics Opinion

Opinion 12-01

January 2012

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.