Informal Opinion Number: 2021-09
Adoption Date: 2021
Reporting Professional Misconduct
Question: Does Attorney have an obligation to report a judge to the Commission on Retirement, Removal, and Discipline, where Client tells Attorney Judge made statements regarding Client off the record prior to the hearing indicating Judge is not impartial in a matter in which Attorney represents Client. Attorney was not present when the statements were allegedly made.
Answer: Rule 4-8.3(b) requires Attorney to report Judge to the appropriate authority, the Commission on Retirement, Removal and Discipline, if Attorney “knows” judge has made statements indicating lack of impartiality in a matter if that would be a violation of applicable rules of judicial conduct, the Code of Judicial Conduct under Rule 2. Rule 4-1.0(f) defines “knows” as “actual knowledge of the fact in question,” and actual knowledge may be inferred from circumstances. If Attorney does not have knowledge, Attorney is not obligated by Rule 4-8.3(b) to report Judge. If Attorney believes Attorney has knowledge of a violation of the applicable rules of judicial conduct such that a report is required, per Rule 4-8.3(c) Attorney must have the informed consent of Client to disclose any information related to the representation in making the report as required by Rule 4-1.6(a).
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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