Ethics Opinions

Opinion 2017-4

April 2017

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.