Summary: Under Rule 8.3, Comment 3, a lawyer
"has knowledge of a violation [requiring reporting to Bar Counsel]
when the lawyer possesses supporting evidence such that a
reasonable lawyer under the circumstances would form a firm opinion
that the conduct in question had more likely occurred than
not."
Rule 8.3's requirement to report misconduct to Bar Counsel's
Office is triggered by a lawyer's discovery (in litigation
involving breakup of a law firm) of a document indicating that an
attorney, a former partner of the client and an opposing party in
the litigation, intentionally omitted mentioning a conviction for
fraud in his letter recommending an applicant for admission to the
bar. The discovered document may constitute client's "confidential
information," as newly defined in Comment 3A to Rule 1.6. If so,
the reporting requirement would be excused unless client consents
to a report. Lawyer also needs to advise his client, who is a
lawyer, about the latter's own reporting obligation under Rule
8.3(a).
Facts: Lawyer represents Attorney A in
connection with terminating his partnership with Attorney B. In the
course of allocating particular firm case files to his client,
Lawyer has discovered a document that Attorney B misfiled in one of
the case files from which it appears that Attorney B intentionally
omitted from a letter of recommendation for an applicant's
admission to the bar that the applicant had been convicted of
fraud. Lawyer has notified opposing counsel of his discovery but
has received no response. Lawyer inquires about his obligation to
report his discovery to Bar Counsel.
Discussion: The relevant provisions of the
Massachusetts Rules of Professional Conduct are Rule 8.1, Rule 8.3
and its Comments, and Rule 8.4. They provide, in relevant part:
Rule 8.1 . . . a lawyer in connection with a
bar admission application . . . shall not:
(a) knowingly make a false statement of
material fact; or
(b) fail to disclose a fact necessary to
correct a misapprehension known by the person to have arisen in the
matter, or knowingly fail to respond to a lawful demand for
information from an admissions or disciplinary authority, except
that this Rule does not require disclosure of information otherwise
protected by Rule 1.6.
Rule 8.3(a) A lawyer who knows 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
[1] This Rule requires lawyers to report
serious violations of ethical duty by lawyers and judges. Even an
apparently isolated violation may indicate a pattern of misconduct
that only a disciplinary investigation can uncover. Reporting a
violation is especially important where the victim is unlikely to
discover the offense.
[2] A report about misconduct is not permitted
or required where it would involve violation of Rule 1.6. However,
a lawyer should encourage a client to consent to disclosure where
prosecution would not substantially prejudice the client's
interests.
[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]." In addition to a conviction of a felony,
misappropriation of client funds and perjury before a tribunal are
common examples of reportable conduct. The term "substantial"
refers to the seriousness of the possible offense and not the
quantum of evidence of which the lawyer is aware. A lawyer has
knowledge of a violation when he or she possesses supporting
evidence such that a reasonable lawyer under the circumstances
would form a firm opinion that the conduct in question had more
likely occurred than not. A report should be made to Bar Counsel's
office or to the Judicial Conduct Commission, as the case may be.
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.
[3A] In most situations, a lawyer may defer
making a report under this Rule until the matter has been
concluded, but the report should be made as soon as practicable
thereafter. An immediate report is ethically compelled, however,
when a client or third person will likely be injured by a delay in
reporting, such as where the lawyer has knowledge that another
lawyer has embezzled client or fiduciary funds and delay may impair
the ability to recover the funds.
Rule 8.4:
It is professional misconduct for a lawyer to:
(c) engage in conduct involving dishonesty,
fraud, deceit or misrepresentation . . . .
The first question is whether Lawyer has sufficient information
that Rule 8.3 obliges him to make a report to Bar Counsel's office.
Does he "know" that Attorney B has committed a reportable violation
of the Rules of Professional Conduct. While Rule 1.0(g) defines
"know" as "actual knowledge" and states that it "may be inferred
from circumstances," Comment 3 to Rule 8.3 spells out that general
language in more specific and more helpful terms. It states that
"[a] lawyer has knowledge of a violation when he or she possesses
supporting evidence such that a reasonable lawyer under the
circumstances would form a firm opinion that the conduct in
question had more likely occurred than not." The Committee cannot
definitively advise whether that test is met in the circumstances
of this inquiry because we have not seen the relevant documents.
But the Committee infers from the language of the inquiry that
Lawyer may well believe that the "more likely than not" standard
has been met, especially because Attorney B's lawyer has not
replied to Lawyer's report about his discovery.
If that is the case, the next question is whether this is the
kind of violation "that raises a substantial question as to that
lawyer's honesty, trustworthiness or fitness as a lawyer in other
respects." We think the answer to that question is yes. Comment 3
to Rule 8.3 refers to violations involving fraud and deceit, and we
think that intentionally concealing a conviction for fraud in a
recommendation letter falls within the "fraud" and "deceit" terms
referred to in Comment 3 to Rule 8.3. Rule 8.1 explicitly provides
that "a lawyer in connection with a bar admission application . . .
shall not: (a) knowingly make a false statement of
material fact or (b) fail to disclose a fact
necessary to correct a misapprehension known by the person to have
arisen in the matter, or knowingly fail to respond to a lawful
demand for information from an admissions or disciplinary
authority, except that this Rule does not require disclosure of
information otherwise protected by
Rule 1.6." See In re Slavitt, 449 Mass. 25 (2007).
The next issue involves the effect of Rule 8.3(c), which states:
"(c) This Rule does not require disclosure of
information otherwise protected by Rule 1.6." "Confidential
information" is now defined in the recently adopted Comment 3A to
Rule 1.6 as consisting of "information gained during or relating to
the representation of a client, whatever its source, that is (a)
protected by the attorney-client privilege, (b) likely to be
embarrassing or detrimental to the client if disclosed, or (c)
information that the lawyer has agreed to keep confidential."
As to (a), we doubt whether the information would be protected
confidential information as "protected by the attorney-client
privilege." The attorney-client privilege refers to communications
between lawyer and client relating to the representation. We doubt
that a personal document of Attorney B having nothing to do with
firm business that was inserted by mistake into a firm file to
which both Attorney A and B had access would be protected by
attorney-client privilege of Attorney A. Conversations between
Lawyer and his client Attorney A about that document might be
protected but the information contained in the document itself
would probably not be.1
As to (b), the committee believes that this information, which
was obtained during the course of representation of Attorney A, may
be "confidential information" on the basis that its disclosure is
likely to be "detrimental" to Attorney A if disclosed. Such might
be the case if disclosure of the information would significantly
interfere with the prompt and peaceful termination of Attorney A's
relationship with Attorney B.
As to (c), this exception is not applicable because on the facts
given there was no agreement by the lawyer to keep the information
confidential.
In addition, given that Lawyer's client is an attorney, he also
should be counseled on his own personal reporting obligation under
the Rules cited above. (We assume that Lawyer has already informed
Attorney A of what he discovered in the file, but if he hasn't, he
should do so promptly. See Rule 1.4).
As to the timing of a report under Rule 8.3, Comment 3A to that
Rule provides:
In most situations, a lawyer may defer making a report under
this Rule until the matter has been concluded, but the report
should be made as soon as practicable thereafter. An immediate
report is ethically compelled, however, when a client or third
person will likely be injured by a delay in reporting, such as
where the lawyer has knowledge that another lawyer has embezzled
client or fiduciary funds and delay may impair the ability to
recover the funds.
This Comment gives permission for, but does not mandate, delay
in making a required report in some circumstances, presumably where
immediate reporting would be contrary to the interests of the
client. . If the information is protected confidential information
because disclosure would be "detrimental" to Attorney A, then
Comment 3A permits a delay in the mandatory reporting obligation
imposed by Rule 8.3(a) until the matter has been concluded. Comment
2 to the Rule states that "[a] report about misconduct is not
permitted or required where it would involve violation of Rule 1.6.
However, a lawyer should encourage a client to consent to
disclosure where prosecution would not substantially prejudice the
client's interests."
The Comment also mandates immediate reporting in certain
described circumstances. It is difficult for the Committee to know
whether what Lawyer has discovered fits within the illustrated
category for mandated reporting. We do not know the details of the
fraud for which the recommended applicant was convicted and are
unable to determine whether any clients or third persons are in the
kind of immediate danger referred to in Comment 3A. Lawyer and
Attorney A are therefore in a better position than we to make an
informed decision as to the timing of any reports by them under
Rule 8.3.
We should also note that Rule 3.4(h) provides that "A lawyer
shall not . . . present, participate in presenting, or threaten to
present criminal or disciplinary charges solely to obtain an
advantage in a private civil matter." However, Comment 6 to this
Rule states that "This Rule is never violated by a report under
Rule 8.3 made in good faith because the report would not be made
"solely" to gain an advantage in a civil matter . . .
." Therefore this Rule would not be violated by a report under
Rule 8.3 so long as making the report is the only action Lawyer
takes. A threat to report (or sending a copy first to Attorney B or
his lawyer) would implicate Rule 3.4(h).
Finally, this inquiry does not present a question of the
obligation of a lawyer who receives a document inadvertently sent
by an adversary. Here the Lawyer came across the document in a file
belonging to his client's firm to which the client and he had
lawful access.
In summary, if Lawyer firmly believes that it is more likely
than not that Attorney B committed fraud in connection with an
applicant's admission to the bar, then on the facts presented in
this inquiry Lawyer has an obligation under Rule 8.3(a) to report
that fraud to Bar Counsel. If Rule 1.6 applies, the reporting may
be deferred unless Lawyer's client or the terms of Comment 3A give
permission for, or require, immediate reporting.
1 See Gretsky v. Miller, 160 F. Supp. 914, 915 (D.
Mass. 1958) where a claim of attorney-client privilege was rejected
with respect to questions about an attorney's role with respect to
corporate minutes, stock certificate book, and federal tax returns.
The court stated: "The mere possession of documents is not
protected. Whether the attorney has to produce them for inspection
is another question, entirely separate from the attorney-client
privilege. The answer to that depends upon whether the client
itself could be so required." In the present inquiry, the document
in question belongs to a third party and was entirely unknown to
the client. While it might represent "work product" of Lawyer, Rule
1.6 does not include work product in its definition of confidential
information unless the particular item of work product is also
protected by attorney-client privilege.
This advice is that of a committee without official
government status.
This opinion was approved for publication by the
Massachusetts Bar Association's House of Delegates on Jan. 26,
2017.