Ohio Board Advisory Opinion Op 86-001

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 86-001
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio
Rules of Professional Conduct, eff. 2/1/2007.]
[Not Current-subsequent rule amendments to Gov. Bar R. V § 42, renumbered as Gov. Bar R. V11(D), eff. Jul. 1,
1992.]
SYLLABUS: The Certified Grievance Committee of a local bar association has a duty to inform
law enforcement officials of criminal activity by an attorney being investigated,
when such evidence is uncovered during the course of an investigation.
TO: Keith Bartlett, Columbus Bar Association
FROM: The Board of Commissioners on Grievances and Discipline of the Bar
DATE: May 5, 1987
We have before us your request for our opinion concerning the duty to report evidence of
criminal activity uncovered during a disciplinary investigation of an attorney. In your request letter
you state:
1. Does the Grievance Committee have a duty to report to law
enforcement officials its belief that criminal acts have been
committed by the respondent attorney?
2. If the committee does not have a duty or obligation to report
such conduct, may it nonetheless report the conduct without
violating the rules of confidentiality of the Rules for the
Government of the Bar?
3. Does the person who conducted the investigation, who is an
attorney subject to the Code of Professional Responsibility,
have a duty under Disciplinary Rule 1-103 to disclose his
evidence of alleged criminal activity by another lawyer to the
appropriate law enforcement personnel?

Op. 86-001 2
Your first question, regarding a duty to report, is not addressed in the Rules for the Government of
the Bar. However, under EC 1-4 of the Code of Professional Responsibility (the "Code"), there is a
duty imposed on the investigating body to inform law enforcement officials of possible criminal
activity by the attorney being investigated. Ethical Consideration 1-4 of the Code states:
. . . If in the course of an investigation by a grievance or ethics
committee of a bar association or by the office of disciplinary
counsel it is found that persons involved in the investigation may
have violated federal or state criminal statutes, it is the duty of the
investigatory agency to notify the appropriate law enforcement or
prosecutorial authority of such alleged criminal violation . . . EC 1-4,
Code of Professional Responsibility (1970).
The framers of the Code intended the ethical considerations to be "aspirational in character and
represent the objectives toward which every member of the profession should strive." Code of
Professional Responsibility, Preface (1970). Therefore, as a Certified Grievance Committee of the
local bar association, you should notify the appropriate authorities upon discovering any alleged
criminal violation by the attorney under investigation.
Your second question addresses Gov. Bar R. V, Section 23. This rule requires that all
proceedings and documents shall remain private during an investigation of a complaint unless the
respondent, by voluntary act, waives his or her right to privacy or requests in writing that the
proceedings be public. Thus, the privacy requirement under Gov. Bar R. V, Section 23 is in
conflict with the duty to report under EC 1-4 of the Code. The question then becomes, how is this
apparent conflict resolved?
Under Ohio Rev. Code Section 2921.22, all persons knowing a felony has been or is being
committed, are required to report such to law enforcement authorities. O.R.C., 2921.22 (1986).
"The rationale for requiring that serious crimes be reported is that effective crime prevention and
law enforcement depend significantly on the cooperation of the public." Commentary, O.R.C.,
2921.22 (1986).
We believe that in most situations, the reporting of crimes, allegedly committed by
attorneys, outweighs any privacy rights that an attorney might have regarding a disciplinary
investigation. However, there are several factors which must be considered when determining
which rule should take precedence. For instance, the more severe the crime, coupled with the
degree of certainty that a crime was committed weigh heavily in favor of reporting the crime to the
proper authorities.

Op. 86-001 3
Furthermore, although an attorney under investigation for an alleged disciplinary violation has a
privacy interest during the investigation, Gov. Bar R. V, Section 42 states: "[nlo investigation or
procedure shall be held to be invalid by reason of any non-prejudicial irregularity or for any error
not resulting in a miscarriage of justice." Gov. Bar R. V, Section 42 (1986). The rule also states
that all the rules relating to investigations shall be liberally construed for the protection of the
public. Id. In light of that rule, we believe the reporting of alleged crimes to law enforcement
officials is necessary to protect the public and would not amount to prejudicial error in the
disciplinary case.
Your third question deals with an attorney's affirmative duty under DR 1-103 to report any
unprivileged knowledge of another attorney's misconduct to the proper authorities. Unlike the
Ethical Considerations in the Code, all of the Disciplinary Rules are mandatory in character. Code
of Professional Responsibility, Preface (1970). Therefore, if during an investigation of a
complaint, the investigating attorney uncovers evidence of illegal activity by the attorney named in
the complaint, this information must be disclosed to the proper authorities.
Based on the foregoing, it is our opinion, and you are so advised, that a Certified Grievance
Committee has an obligation to inform criminal authorities regarding illegal acts of an attorney
which were discovered during a disciplinary investigation.
This opinion is advisory in nature, is based upon the facts as presented and is limited
to questions arising under the Code of Professional Responsibility, Gov. Bar R. V and Section
2921.22 of the Ohio Revised Code.
JAMES W. Mason, Esq.
Secretary, Board of Commissioners
on Grievances and Discipline
of the Judiciary of
The Supreme Court of Ohio