Resource Page: Reporting Misconduct Of Another Lawyer Or Judge

Informal Opinion: 2019-02

Attorney represents Employer in the defense of a civil employment matter related to the employment and subsequent discharge of Plaintiff. Employer believes Plaintiff engaged in criminal conduct during employment. Based on information Attorney has learned during discovery, Attorney has reason to believe evidence of Plaintiff’s criminal conduct during employment, which was in the possession of Plaintiff’s counsel, has been destroyed.

Question 1: Is it permissible for Attorney to inform Plaintiff’s counsel that unless Plaintiff dismisses the civil matter or enters into a settlement as proposed by Employer, Attorney will refer Plaintiff’s employment-related conduct to the prosecutor for possible criminal charges?
Answer 1: Attorney’s threat to refer the employment-related conduct of Plaintiff for criminal prosecution would constitute conduct prejudicial to the administration of justice in violation of Rule 4-8.4(d) unless Attorney has actual intent to refer the matter for prosecution if the matter is not dismissed or settled (see Rule 4-4.1); the conduct underlying the alleged criminal offense is related to the civil action and the use of the threat does not constitute a crime (see Rule 4-8.4(b)); Attorney has a non-frivolous, good faith belief based in law and fact that the employment-related conduct of Plaintiff was unlawful (see Rule 4-3.1); and Attorney’s use of the threat would not lack a substantial purpose other than to embarrass, delay, or burden the Plaintiff or another person (see Rule 4-4.4(a)). See also Informal Opinions 990042 and 20010149. Because some jurisdictions consider the use of a threat to file criminal charges to gain leverage in civil litigation to be a violation of the Rules of Professional Conduct regardless of the circumstances, Attorney should use caution if the conduct could be judged by the rules of professional conduct of another jurisdiction. See Rule 4-8.5.

Question 2: In the course of settlement negotiations, may Attorney inform Plaintiff’s counsel that a lawyer’s unlawful destruction of documents with potential evidentiary value is unethical, and unless Plaintiff dismisses the lawsuit or reaches a settlement as proposed by Employer, Employer or Attorney will file a disciplinary complaint or report against Plaintiff’s counsel?
Answer 2: If Attorney has a duty under Rule 4-8.3 to report the conduct of Plaintiff’s counsel to the Office of Chief Disciplinary Counsel, any offer by Attorney to forego the complaint or report would violate Rule 4-8.4(a) as an attempt by Attorney to violate the Rules of Professional Conduct or to do so through the acts of another. Attorney’s threat may violate Rule 4-3.1 if Attorney lacks a well-founded basis for believing Plaintiff’s counsel violated the Rules of Professional Conduct. Attorney’s threat is likely to violate Rule 4-4.4, Respect for Rights of Third Persons, and/or Rule 4-8.4(d), which prohibits conduct prejudicial to the administration of justice, if threatening to file a disciplinary report or complaint in order to extract settlement concessions is likely to be a factor Plaintiff or Plaintiff’s counsel will have to consider in the representation. Finally, a threat which itself constitutes criminal conduct would violate Rule 4-8.4(b), which prohibits criminal acts that reflect adversely on a lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects. Attorney should also be mindful of the Scope paragraph of Rule 4 at [20], which explains that the Rules are to provide guidance for lawyers and a structure for regulating conduct through discipline, but “the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons.”  

Informal Opinion: 2018-07

Question: Does Attorney have an obligation to report opposing counsel to the Office of Chief Disciplinary Counsel (OCDC), where Attorney and opposing counsel had phone conversations about the representation during which opposing counsel had slurred speech and exhibited significant memory problems, where opposing counsel made a court appearance a few hours later smelling strongly of alcohol, and where Attorney knows another person has reported opposing counsel’s conduct to OCDC?
Answer: Rule 4-8.3 requires Attorney to report opposing counsel to OCDC if Attorney “knows” opposing counsel was under the influence of alcohol while representing a client and if Attorney has the informed consent of his or her own client to disclose information related to the representation as required by Rule 4-1.6. Rule 4-1.0(f) defines “knows” as “actual knowledge of the fact in question,” and actual knowledge may be inferred from circumstances. An attorney’s duty per Rule 4-1.1 to provide competent representation to a client is impaired if attorney is intoxicated while engaging in activities related to the representation. The violation raises a substantial question as to the attorney’s honesty, trustworthiness, or fitness as a lawyer in other respects. If Attorney’s suspicions do not rise to the level of actual knowledge, including if Attorney reasonably believes the behavior of opposing counsel may have an alternative explanation, then Attorney is not obligated by Rule 4-8.3 to report opposing counsel. If the report is mandatory under the circumstances, a similar report to OCDC by another attorney or judge does not eliminate Attorney’s duty to report under Rule 4-8.3.

Informal Opinion: 2011-04

Question: Does Attorney have an obligation to self-report Client’s allegation of misconduct by Attorney toward Client?
Answer: No. Rule 4-8.3 does not require an attorney to self-report a violation of the Rules of Professional Conduct or an allegation of a violation by that attorney.

Informal Opinion 20030089

Reference Note: Effective July 1, 2007, Rule 4-8.1 was amended. This opinion is based on Rule 4-8.1 in effect prior to that date.

QUESTION: Attorney is a prosecuting attorney and has information that another attorney has committed criminal acts. The other attorney has not pleaded guilty or been convicted. Is Attorney obligated to report the other attorney’s acts? Would Attorney’s obligation change if the other attorney pleads guilty or is convicted?
ANSWER: Attorney has an obligation under Rule 4-8.3(a) to report the information to the Office of the Chief Disciplinary Counsel. Under Rule 4-8.1(b), Attorney has an obligation to report the ultimate outcome to OCDC, if requested by that office.