Informal Opinion Number: 2021-08

Adoption Date: 2021

Rules: 4-8.3; 4-8.4; 4-1.0; 4-1.6
Maintaining the Integrity of the Profession
Client-Lawyer Relationship
Reporting Professional Misconduct
Confidentiality of Information
Subject: Misconduct - Bias, Harassment, or Prejudice; Reporting Misconduct of Another Lawyer
Summary: reporting lawyer misconduct related to bias or prejudice

Attorney A represents Wife in a dissolution of marriage case, and Attorney B represents Husband. Attorney A and Attorney B were negotiating on behalf of their respective clients, with their clients present, when Attorney A made a derogatory remark to Attorney B that was related to Attorney B’s gender and national origin. Is Attorney B required to report Attorney A’s conduct?

Answer: Rule 4-8.3 requires Attorney B to report Attorney A to the Office of Chief Disciplinary Counsel if Attorney B knows that Attorney A’s conduct is a violation of the Rules of Professional Conduct that raises a substantial question as to Attorney A’s honesty, trustworthiness, or fitness as a lawyer in other respects. “Knows” is defined in Rule 4-1.0(f) as actual knowledge of the fact in question, or it may be inferred from the circumstances. In determining if Attorney A’s conduct rises to the level of misconduct that is reportable, Attorney B may consider Rule 4-8.4, Misconduct. Rule 4-8.4(g) provides that it is professional misconduct for a lawyer to “manifest by words or conduct, in representing a client, bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, gender identity, religion, national origin, ethnicity, disability, age, sexual orientation, or marital status.” Comment [4] to Rule 4-8.4 states: “Whether a lawyer’s conduct constitutes professional misconduct in violation of Rule 4-8.4(g) can be determined only by a review of all the circumstances; e.g., the gravity of the acts and whether the acts are part of a pattern of prohibited conduct. For purposes of Rule 4-8.4(g), “bias or prejudice” means words or conduct that the lawyer knew or should have known discriminate against, threaten, intimidate, or denigrate any individual or group. Examples of manifestations of bias or prejudice include, but are not limited to, epithets; slurs; demeaning nicknames; negative stereotyping; threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or nationality and crime; and irrelevant references to personal characteristics.” If Attorney B believes, based on the facts and circumstances, that Attorney A’s conduct is a violation of Rule 4-8.4(g), Rule 4-8.3(a) would require it to be reported to the Office of Chief Disciplinary Counsel. However, Rule 4-8.3(c) requires informed consent of Attorney B’s client if the report would require disclosure of information otherwise protected by Rule 4-1.6.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

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