Ohio Board Advisory Opinion Op 16-002

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Che Supreme Court of Ohio

BOARD OF PROFESSIONAL CONDUCT

65 SOUTH FRONT STREET, 5™ FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.supremecoutt.ohio.gov

PAuL M. DE Marco RICHARD A. DOVE
CHAIR DIRECTOR
WILLIAM J. NOVAK D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL
HEIDI WAGNER DORN

COUNSEL

OPINION 2016-2
Issued April 8, 2016
Withdraws Advisory Opinion 1990-1

Duty to Report Unprivileged Knowledge of Misconduct

SYLLABUS: A lawyer is required under Prof.Cond.R. 8.3 to report any unprivileged
knowledge of a violation of the Rules of Professional Conduct to the Office of Disciplinary
Counsel or a bar association's certified grievance committee. A lawyer shall not reveal
privileged information relating to the representation of a client, including information
protected by the attorney-client privilege. Prof.Cond.R. 1.6(a). A lawyer may reveal
information relating to the representation of a client if the client gives informed consent
under Prof.Cond.R. 1.6.

APPLICABLE RULES: Prof.Cond.R. 1.6, 8.3

QUESTIONS PRESENTED:

1). | Whether a lawyer who represented a client against the client’s prior lawyer
has an ethical obligation under Prof.Cond.R. 8.3 to report the lawyer to the
appropriate disciplinary authority.

2). Whether the information acquired from the client regarding their prior
lawyer's conduct is privileged, thereby eliminating any duty to report?

OPINION: The requester seeks an advisory opinion regarding a lawyer's duty to report
another lawyer's misconduct under the following facts. The lawyer represents a client
against the client's prior lawyer to recover certain monies the lawyer allegedly

Op. 2016-2 2
misappropriated from the client. A settlement is reached, curing the delinquencies but
without an admission of liability by the prior lawyer. The settlement contained a
confidentiality provision.
Question 1:
The Rules of Professional Conduct do not contain a strict reporting requirement
that a lawyer report all misconduct of which the lawyer has unprivileged knowledge.
Rather, Prof.Cond.R. 8.3 requires a lawyer to report misconduct only when 1) the lawyer
has unprivileged knowledge, and 2) it raises a question as to another lawyer’s “honesty,
trustworthiness, or fitness as a lawyer in other respects.” Prof.Cond.R. 8.3 also requires
lawyers to report their own misconduct. If a lawyer has reservations as to whether to
report the misconduct, the Board recommends the lawyer err on the side of reporting.
Lawyers are required to report misconduct to a disciplinary authority empowered
to investigate or act upon such violation. Prof.Cond.R. 8.3(a). In Ohio, the proper
disciplinary authority is the Office of Disciplinary Counsel or a bar association's certified
grievance committee. The reporting duty is not fulfilled by reporting a lawyer’s
misconduct to a tribunal, since a tribunal does not have the authority to investigate or act
upon reports of lawyer misconduct. However, in certain circumstances a lawyer may be
required under another Rule of Professional Conduct to report the misconduct to the
tribunal. See, Prof.Cond.R. 3.3, Adv. Op. 2007-1.
Additionally, in order to invoke the reporting requirement, a lawyer must have
actual knowledge that another lawyer has violated a Rule of Professional Conduct. This
requires more than a “mere suspicion” that misconduct has occurred. The term “‘knows’
denotes actual knowledge of the fact in question. A person’s knowledge may be inferred
from circumstances.” Prof.Cond.R. 1.0(g); Adv. Op. 2007-01. See DC Bar Op. 246, citing
N.Y. State Bar Opinion No. 635. Furthermore, a lawyer's duty to report is not removed
when the lawyer being reported does not admit liability or even denies any misconduct.
Therefore, a lawyer who represents a client against the client’s prior lawyer has
an ethical obligation under Prof.Cond.R. 8.3 to report the prior lawyer’s misconduct to
the appropriate disciplinary authority if the lawyer has unprivileged knowledge and
the violation raises questions as to the other lawyer’s “honesty, trustworthiness, or
fitness as a lawyer in other respects.”

Op. 2016-2 3
Question 2:
A lawyer is not required to report misconduct where it would involve disclosure
of privileged information. Prof.Cond.R. 8.3, cmt. [2]. Rather, the lawyer should use his
or her professional judgment to determine whether the privileged information should be
disclosed to report the misconduct. If the lawyer determines that the information should
be disclosed, the lawyer should encourage the client to consent to such a disclosure,
where it would not prejudice the client’s interests. Prof.Cond.R. 8.3, cmt. [2].
Prof.Cond.R. 1.6 should be consulted when determining whether information is
privileged or unprivileged. Under Prof.Cond.R. 1.6(a), a lawyer is prohibited from
revealing any information related to the representation, including information protected
by the attorney-client privilege, without client consent. However, Prof.Cond.R. 1.6(b)
allows, but does not require, a lawyer to disclose confidential client information that may
be protected by the attorney-client privilege to accomplish the limited purposes
contained in Prof.Cond.R. 1.6(b)(1)-(b)(6). See, Prof.Cond.R. 1.6, cmt. [17].
Consequently, a lawyer’s duty under Prof.Cond.R. 8.3(a) to report the misconduct
of a client’s prior lawyer is conditioned on the possession by the lawyer of unprivileged
knowledge. This requires the use of professional judgment to determine whether the
information is privileged or unprivileged. If the information is unprivileged, the duty to
report misconduct under Prof.Cond.R. 8.3 is triggered. However, if the information is
privileged, the lawyer is not required to report under Prof.Cond.R. 8.3, but may
encourage the client to consent to the disclosure of the privileged information if it would
not substantially prejudice the client’s interests. If a lawyer determines that he or she has
a duty to report unprivileged knowledge of another lawyer’s misconduct, failure to
report is itself a violation of Prof.Cond.R. 8.3.
CONCLUSION:
A lawyer has a duty to report unprivileged knowledge of another lawyer's
misconduct under Prof.Cond.R. 8.3. A lawyer is required to keep information related to
the representation of a client confidential, including information protected by the
attorney-client privilege under applicable law. A lawyer is not required to report
privileged information of another lawyer's misconduct. A lawyer may, however, reveal
information related to the misconduct of a lawyer if the client gives his or her informed
consent to the disclosure under Prof.Cond.R. 1.6.

Op. 2016-2 4
Advisory Opinions of the Board of Professional Conduct are informal,
nonbinding opinions in response to prospective or hypothetical questions
regarding the application of the Supreme Court Rules for the Government of
the Bar of Ohio, the Supreme Court Rules for the Government of the
Judiciary, the Ohio Rules of Professional Conduct, the Ohio Code of Judicial
Conduct, and the Lawyer’s Oath of Office.

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Op. 2016-2