Question: Lawyer has determined that Lawyer must report the misconduct of another lawyer to the Office of Chief Disciplinary Counsel pursuant to Rule 4-8.3. However, Lawyer is concerned about the timing of that report, as Lawyer is representing client in litigation that is near to trial, and the report pertains to the lawyer on the opposing side. Settlement negotiations are underway. May Lawyer wait to inform the Office of Chief Disciplinary Counsel as to the misconduct of opposing counsel pursuant to Rule 4-8.3?

Answer: If Lawyer determines that Lawyer is required to report pursuant to Rule 4-8.3, that obligation exists regardless of the timing. While Rule 4-8.3 does not address the timing of the report, it is generally presumed that the report should be done as promptly as possible. This requirement derives from the need to safeguard the public and the profession from future misconduct by the offending attorney. As stated in Scope [14], “[t]he Rules of Professional Conduct are rules of reason.” Comment [2] to Rule 4-8.3 references potential prejudice to a client’s interests in the context of seeking informed consent to disclose confidential information. This reference suggests that Lawyer may consider the adverse impact on the client when determining the timing of the report. While Lawyer may consider the interests of the client in the timing of filing a report, and prejudice to the client in the middle of settlement negotiations with a trial nearing may be such a factor, if an obligation to report exists pursuant to Rule 4-8.3, a report should be made reasonably promptly to the Office of Chief Disciplinary Counsel. See also Missouri Informal Opinion 2019-02 (threat of criminal prosecution or disciplinary complaint; duty to report).

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.

To request an Informal Opinion, please visit: http://mo-legal-ethics.org/for lawyers/requesting-an-informal-advisory-opinion/.

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