Ohio Board Advisory Opinion Op 07-001

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
(614) 387-9370 (888) 664-8345 FAX: (614) 387-9379
www.sconet.state.oh.us
OFFICE OF SECRETARY
OPINION 2007-1
Issued February 9, 2007
SYLLABUS: A lawyer’s ethical duty to report professional misconduct under
Rule 8.3 is fulfilled by informing Disciplinary Counsel or a certified grievance
committee of a bar association. A lawyer’s ethical duty to report professional
misconduct under Rule 8.3 is not fulfilled by informing a tribunal. However, a
lawyer’s duty of candor to a tribunal under Rule 3.3 requires a lawyer to disclose
to the tribunal any information required by Rule 3.3, thus, there will be instances
in which a lawyer’s misconduct must be reported to Disciplinary Counsel or a
certified grievance committee of a bar association pursuant to a lawyer’s duty to
report under Rule 8.3 and disclosed to a tribunal pursuant to a lawyer’s duty of
candor toward a tribunal under Rule 3.3.
The duty to report professional misconduct under Rule 8.3 arises when a lawyer
has unprivileged knowledge of a violation of the Rules of Professional Conduct
that raises a question as to the lawyer’s honesty, trustworthiness, or fitness as a
lawyer.
Privileged knowledge refers to the information imparted in a representation of a
client that would be protected by the attorney-client privilege and to the
information that Rule 8.3(c) specifically identifies as privileged.
A lawyer must use professional judgment in determining what misconduct raises
a question as to a lawyer’s honesty, trustworthiness, or fitness as a lawyer. If a
lawyer has doubts as to whether misconduct raises questions as to honesty,
trustworthiness, or fitness as a lawyer, he or she should err on the side of
reporting.
A mere suspicion of misconduct need not be reported. Actual knowledge is the
standard, not mere suspicion.
A lawyer is not required to report to disciplinary authorities information regarding
another lawyer’s professional misconduct revealed through a privileged
communication by a client to a lawyer during a representation; but, a lawyer
should encourage a client to consent to reporting the misconduct if it would not
substantially prejudice a client’s interests to do so.

Opinion 2007-1 2
A lawyer who is retained to represent another lawyer whose professional conduct
is in question does not have an ethical duty to report the lawyer’s professional
misconduct because that information is privileged; in addition, the confidentiality
of that information is protected under Rule 1.6.
A lawyer who receives information while serving as a member of a bar
association committee or subcommittee, or as a member, employee, or agent of
a bar association established non-profit corporation designed to assist lawyers
with substance abuse or mental health problems does not have a duty to report
such information to disciplinary authorities because that is privileged knowledge
under Rule 8.3(c).
A lawyer is required to self-report his or her professional misconduct, as well as
report others’ misconduct that raises a question as to honesty, trustworthiness, or
fitness as a lawyer.
A lawyer, licensed in Ohio, also has a duty under Gov.Bar R. V(11)(F)(1), to
provide written notification to the Disciplinary Counsel and to the Clerk of the
Supreme Court of Ohio of the issuance of a disciplinary order in another
jurisdiction. The notification is to be made within thirty days of the issuance of
the disciplinary order.
OPINION: This opinion addresses a question regarding the duty of a lawyer to
report to an appropriate disciplinary authority the misconduct of a lawyer.
Does a lawyer fulfill the ethical duty to report another lawyer’s
misconduct in a case pending before a tribunal by reporting the
alleged misconduct to the judge presiding over the case?
Reporting lawyer misconduct is a solemn responsibility of the legal profession.
Lawyers are reminded of this responsibility by the Preamble to the Rules of
Professional Conduct, Comment [11]:
The legal profession is self-governing in that the Ohio Constitution
vests in the Supreme Court of Ohio the ultimate authority to
regulate the profession. To the extent that lawyers meet the
obligations of their professional calling, the occasion for
government regulation is obviated. Self-regulation also helps
maintain the legal profession’s independence from government
domination. An independent legal profession is an important force
in preserving government under law, for abuse of legal authority is
more readily challenged by a profession whose members are not
dependent on government for the right to practice.

Opinion 2007-1 3
The duty of a lawyer to report professional misconduct is governed by Rule 8.3 of
the Ohio Rules of Professional Conduct, adopted August 1, 2006, effective
February 1, 2007. That rule is set forth in its entirety.
RULE 8.3: REPORTING PROFESSIONAL MISCONDUCT
(a) A lawyer who possesses unprivileged knowledge of a
violation of the Ohio Rules of Professional Conduct that raises a
question as to any lawyer’s honesty, trustworthiness, or fitness as a
lawyer in other respects, shall inform a disciplinary authority
empowered to investigate or act upon such a violation.
(b) A lawyer who possesses unprivileged knowledge that
a judge has committed a violation of the Ohio Rules of Professional
Conduct or applicable rules of judicial conduct shall inform the
appropriate authority.
(c) Any information obtained by a member of a
committee or subcommittee of a bar association, or by a member,
employee, or agent of a nonprofit corporation established by a bar
association, designed to assist lawyers with substance abuse or
mental health problems, provided the information was obtained
while the member, employee, or agent was performing duties as a
member, employee, or agent of the committee, subcommittee, or
nonprofit corporation, shall be privileged for all purposes under this
rule.
Part 1: Where to report misconduct
To fulfill the duty to report professional misconduct, a lawyer must know where to
report misconduct and what misconduct to report.
Pursuant to Rule 8.3(a), a lawyer’s ethical duty to report professional misconduct
is fulfilled by informing “a disciplinary authority empowered to investigate or act
upon such a violation.”
In Ohio, Disciplinary Counsel and the certified grievance committees of bar
associations are the authorities empowered by the Supreme Court of Ohio to
investigate and initiate complaints. See Gov.Bar R. V(3)(B) and Gov.Bar R.
V(3)(C).
Thus, under Rule 8.3(a) of the Ohio Rules of Professional Conduct, a lawyer’s
reporting duty is fulfilled by reporting professional misconduct to either the Office
of Disciplinary Counsel or to a certified grievance committee of a bar association.

Opinion 2007-1 4
The reporting duty is not fulfilled by reporting a lawyer’s misconduct to a tribunal.
A tribunal is not a disciplinary authority empowered to investigate or act upon
reports of lawyer misconduct. A tribunal has authority to supervise members of
the bar appearing before it, including the power to disqualify attorneys in specific
cases, but that authority is distinct from the exclusive disciplinary authority vested
in the Supreme Court of Ohio through its inherent and constitutional powers.
See, Buck v. Maloney, 102 Ohio St.3d 250, 252, 2004-Ohio-2590, Morgan V.
North Coast Cable Company (1992), 63 Ohio St.3d 156, 161; Mentor Lagoons,
Inc., v. Rubin (1987), 31 Ohio St.3d 256, 259-60; Royal Indemnity Company v.
J.C. Penney Co., (1986), 27 Ohio St.3d 31, 34; Melling v. Stralka (1984), 12 Ohio
St.3d 105, 106-07. See also, Smith v. Kates (1976), 46 Ohio St. 2d 263, 265-66.
But, a lawyer also has a duty of candor to a tribunal. A lawyer’s duty of candor
toward a tribunal is distinct from a lawyer’s duty to report professional misconduct
to a disciplinary authority. The duty of candor toward a tribunal is set forth in
Rule 3.3.
RULE 3.3: CANDOR TOWARD THE TRIBUNAL
(a) A lawyer shall not knowingly do any of the following:
(1) make a false statement of fact or law to a
tribunal or fail to correct a false statement of material fact or
law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in
the controlling jurisdiction known to the lawyer to be directly
adverse to the position of the client and not disclosed by
opposing counsel;
(3) offer evidence that the lawyer knows to be
false. If a lawyer, the lawyer’s client, or a witness called by
the lawyer has offered material evidence and the lawyer
comes to know of its falsity, the lawyer shall take reasonable
measures to remedy the situation, including, if necessary,
disclosure to the tribunal. A lawyer may refuse to offer
evidence, other than the testimony of a defendant in a
criminal matter, that the lawyer reasonably believes is false.
(b) A lawyer who represents a client in an adjudicative
proceeding and who knows that a person, including the client,
intends to engage, is engaging, or has engaged in criminal or
fraudulent conduct related to the proceeding shall take reasonable
measures to remedy the situation, including, if necessary,
disclosure to the tribunal.

Opinion 2007-1 5
(c) The duties stated in divisions (a) and (b) of this rule
continue until the issue to which the duty relates is determined by
the highest tribunal that may consider the issue, or the time has
expired for such determination, and apply even if compliance
requires disclosure of information otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the
tribunal of all material facts known to the lawyer that will enable the
tribunal to make an informed decision, whether or not the facts are
adverse.
A lawyer must comply with Rule 3.3 and make the required disclosures to a
tribunal. So, there may be instances in which a lawyer’s professional misconduct
will be reported to Disciplinary Counsel or a certified grievance committee of a
bar association pursuant to a lawyer’s duty to report under Rule 8.3 and
disclosed to a tribunal pursuant to a lawyer’s duty of candor toward a tribunal
under Rule 3.3.
Part 1: Conclusion
In conclusion, the Board advises as follows. A lawyer’s ethical duty to report
professional misconduct under Rule 8.3 is fulfilled by informing Disciplinary
Counsel or a certified grievance committee of a bar association. A lawyer’s
ethical duty to report professional misconduct under Rule 8.3 is not fulfilled by
informing a tribunal. However, a lawyer’s duty of candor to a tribunal under Rule
3.3 requires a lawyer to disclose to the tribunal any information required by Rule
3.3, thus, there will be instances in which a lawyer’s misconduct must be
reported to Disciplinary Counsel or a certified grievance committee of a bar
association pursuant to a lawyer’s duty to report under Rule 8.3 and disclosed to
a tribunal pursuant to a lawyer’s duty of candor toward a tribunal under Rule 3.3.
Part 2: What to Report
Equally important to knowing where to report misconduct, is knowing what to
report. Knowing what to report requires knowledge of the rules as well as the
exercise of professional judgment.
Rule 8.4 identifies what is professional misconduct.
RULE 8.4: MISCONDUCT
It is professional misconduct for a lawyer to do any of the
following:

Opinion 2007-1 6
(a) violate or attempt to violate the Ohio Rules of
Professional Conduct, knowingly assist or induce another to do so,
or do so through the acts of another;
(b) commit an illegal act that reflects adversely on the
lawyer’s honesty or trustworthiness;
(c) engage in conduct involving dishonesty, fraud, deceit,
or misrepresentation;
(d) engage in conduct that is prejudicial to the
administration of justice;
(e) state or imply an ability to influence improperly a
government agency or official or to achieve results by means that
violate the Ohio Rules of Professional Conduct or other law;
(f) knowingly assist a judge or judicial officer in conduct
that is a violation of the Ohio Rules of Professional Conduct, the
applicable rules of judicial conduct, or other law;
(g) engage, in a professional capacity, in conduct
involving discrimination prohibited by law because of race, color,
religion, age, gender, sexual orientation, national origin, marital
status, or disability;
(h) engage in any other conduct that adversely reflects
on the lawyer’s fitness to practice law.
Not all professional misconduct must be reported by a lawyer. Rule 8.3 requires
a lawyer to report “unprivileged knowledge of a violation of the Ohio Rules of
Professional Conduct that raises a question as to any lawyer’s honesty,
trustworthiness, or fitness as a lawyer in other respects.”
Thus, there are two triggers to a lawyer’s reporting duty under Rule 8.3. The
reporting duty arises (1) when a lawyer has unprivileged knowledge of a violation
of the Rules and (2) the violation raises a question as to a lawyer’s honesty,
trustworthiness, or fitness as a lawyer.
Misconduct that raises a question as honesty, trustworthiness, or fitness
A lawyer must use professional judgment in determining what misconduct raises
a question as to a lawyer’s honesty, trustworthiness, or fitness as a lawyer. It is
beyond the scope of this opinion to list all such misconduct. A review of
disciplinary cases will provide ample guidance as to the types of misconduct that
raise a question as to a lawyer’s honesty, trustworthiness, or fitness as a lawyer

Opinion 2007-1 7
to the level of reporting. If a lawyer has doubts as to whether misconduct raises
questions as to honesty, trustworthiness, or fitness as a lawyer, he or she should
err on the side of reporting.
Reporting unprivileged knowledge
“Unprivileged knowledge” is not a defined term in the Ohio Rules of Professional
Conduct. Its meaning must be construed. First, the Board looks to the
Comments to Rule 8.3 which explain and illustrate the meaning of Rule 8.3.
Second, the Board looks to Rule 1.6, the rule protecting confidentiality of
information relating to the representation of a client and to its explanatory
Comments.
Comment [2] to Rule 8.3 states: “[a] report about misconduct is not required
where it would involve the disclosure of privileged information. However, a
lawyer should encourage a client to consent to disclosure where it would not
substantially prejudice the client’s interests.”
In comparison, Comment [2] to ABA Model Rule 8.3 is stated differently: “[a]
report about misconduct is not required where it would involve violation of Rule
1.6. However, a lawyer should encourage a client to consent to disclosure where
prosecution would not substantially prejudice the client’s interests.”
The significant difference is that Ohio’s rule does not require reporting of
professional misconduct when the disclosure involves “privileged information,”
whereas, the model rule does not require reporting of misconduct when the
disclosure would violate Rule 1.6.
To aid in understanding the significance of this difference, Rule 1.6 is set forth in
its entirety.
RULE 1.6: CONFIDENTIALITY OF INFORMATION
(a) A lawyer shall not reveal information relating to the
representation of a client, including information protected by the
attorney-client privilege under applicable law, unless the client
gives informed consent, the disclosure is impliedly authorized in
order to carry out the representation, or the disclosure is permitted
by division (b) or required by division (c) of this rule.
(b) A lawyer may reveal information relating to the
representation of a client, including information protected by the
attorney-client privilege under applicable law, to the extent the
lawyer reasonably believes necessary for any of the following
purposes:

Opinion 2007-1 8
(1) to prevent reasonably certain death or
substantial bodily harm;
(2) to prevent the commission of a crime by the
client or other person;
(3) to mitigate substantial injury to the financial
interests or property of another that has resulted from the
client’s commission of an illegal or fraudulent act, in
furtherance of which the client has used the lawyer’s
services;
(4) to secure legal advice about the lawyer’s
compliance with these rules;
(5) to establish a claim or defense on behalf of the
lawyer in a controversy between the lawyer and the client, to
establish a defense to a criminal charge or civil claim against
the lawyer based upon conduct in which the client was
involved, or to respond to allegations in any proceeding,
including any disciplinary matter, concerning the lawyer’s
representation of the client;
(6) to comply with other law or a court order.
(c) A lawyer shall reveal information relating to the
representation of a client, including information protected by the
attorney-client privilege under applicable law, to the extent the
lawyer reasonably believes necessary to comply with Rule 3.3 or
4.1.
In short, Rule 1.6(a) protects the disclosure of any information relating to the
representation (including information protected by the attorney-client privilege)
unless the client consents to disclosure, the disclosure is impliedly authorized,
the disclosure is permitted by Rule 1.6(b), or the disclosure is required by Rule
1.6(c) in order to comply with the duty of candor to a tribunal under Rule 3.3 and
with the duty of truthfulness in statements to others as required under Rule 4.1.
But, Ohio did not to choose to shield from the reporting duty all of the information
protected by Rule 1.6. Ohio chose to shield only privileged information from the
Rule 8.3 reporting duty.
Thus, the Board interprets the terms “unprivileged knowledge” used in Rule 8.3
and “privileged information” used in Comment [2], Rule 8.3 as references to: 1)
the information imparted in a representation of a client that would be protected by
the attorney-client privilege, and 2) the information that Rule 8.3(c) identifies as

Opinion 2007-1 9
privileged under the reporting rule. Generally defined, the attorney-client
privilege is “[t]he client’s right to refuse to disclose and to prevent any other
person from disclosing confidential communications between the client and the
attorney.” Black’s Law Dictionary 1235 (8th ed. 2004).
[The Board acknowledges that this construction of “unprivileged knowledge” does
not square with Comment [15] to Rule 1.6. Comment [15] states that some rules
require disclosure of information only if permitted by Rule 1.6(b). Comment [15]
provides Rule 4.1(b), 8.1 and 8.3 as examples of such rules. This language
matches the language in Comment [15] to ABA Model Rule 1.6 and may have
been included inadvertently in Ohio’s Comment [15]. The inference from
Comment [15] is that Rule 8.3 requires disclosure of information relating to a
representation only if such disclosure is permitted by Rule 1.6(b). The Board
rejects this interpretation because it is inconsistent with Ohio’s Comment [2] to
Rule 8.3 which departed from the ABA Comment [2] to Rule 8.3. As already
stated, Ohio chose to shield only privileged information from the Rule 8.3
reporting duty. Ohio did not to choose to shield from the reporting duty all of the
information protected by Rule 1.6.]
Reporting duty when representing a client
A lawyer is not required to report to disciplinary authorities information regarding
another lawyer’s professional misconduct revealed through a privileged
communication by a client to a lawyer during a representation; but, as explained
in Comment [2] to Rule 8.3, a lawyer should encourage a client to consent to
reporting the misconduct if doing so would not substantially prejudice a client’s
interests.
Reporting duty when retained to represent a lawyer in a professional
conduct matter
A lawyer who is retained to represent a lawyer whose professional conduct is in
question does not have a duty to report the lawyer’s professional misconduct
because that information is privileged; in addition, the confidentiality of that
information is protected under Rule 1.6. Comment [4] to Rule 8.3 states “[t]he
duty to report professional misconduct does not apply to a lawyer retained to
represent a lawyer whose professional conduct is in question. Such a situation is
governed by the rules applicable to the client-lawyer relationship. See Rule 1.6.”
Reporting duty when serving on a lawyer assistance committee
A lawyer who receives information while serving as a member of a bar
association committee or subcommittee, or as a member, employee, or agent of
a bar association established non-profit corporation designed to assist lawyers
with substance abuse or mental health programs does not have a duty to report

Opinion 2007-1 10
such information to disciplinary authorities because that information is privileged
knowledge under Rule 8.3(c). Comment [5] to Rule 8.3 explains that there is an
exception from the reporting duty for information about a lawyer’s or judge’s
misconduct or fitness received in the course of a lawyer’s participation in an
approved assistance program.
Suspicion of misconduct
A mere suspicion of misconduct need not be reported. Rule 1.0(g) of the
Terminology section states that “‘knows’ denotes actual knowledge of the fact in
question. A person’s knowledge may be inferred from circumstances.” Actual
knowledge is the standard, not mere suspicion.
Self-Reporting duty
A lawyer is required to self-report his or her professional misconduct, as well as
report others’ misconduct, that raises a question as to honesty, trustworthiness,
or fitness as a lawyer. Comment [1] to Rule 8.3 explains that reporting is
required “when the lawyer knows of a violation of the Ohio Rules of Professional
Conduct involving that lawyer or another lawyer. A lawyer has a similar
obligation with respect to judicial misconduct.”
A lawyer, licensed in Ohio, also has a duty under Gov.Bar R. V(11)(F)(1), to
provide written notification to the Disciplinary Counsel and to the Clerk of the
Supreme Court of Ohio of the issuance of a disciplinary order in another
jurisdiction. The notification is to be made within thirty days of the issuance of
the disciplinary order.
Part 2: Conclusion
In conclusion, the Board advises as follows.
The duty to report professional misconduct under Rule 8.3 arises when a lawyer
has unprivileged knowledge of a violation of the Rules of Professional Conduct
that raises a question as to the lawyer’s honesty, trustworthiness, or fitness as a
lawyer.
Privileged knowledge refers to the information imparted in a representation of a
client that would be protected by the attorney-client privilege and to the
information that Rule 8.3(c) specifically identifies as privileged.
A lawyer must use professional judgment in determining what misconduct raises
a question as to a lawyer’s honesty, trustworthiness, or fitness as a lawyer. If a
lawyer has doubts as to whether misconduct raises questions as to honesty,

Opinion 2007-1 11
trustworthiness, or fitness as a lawyer, he or she should err on the side of
reporting.
A mere suspicion of misconduct need not be reported. Actual knowledge is the
standard, not mere suspicion.
A lawyer is not required to report to disciplinary authorities information regarding
another lawyer’s professional misconduct revealed through a privileged
communication by a client to a lawyer during a representation; but, a lawyer
should encourage a client to consent to reporting the misconduct if it would not
substantially prejudice a client’s interests to do so.
A lawyer who is retained to represent another lawyer whose professional conduct
is in question does not have an ethical duty to report the lawyer’s professional
misconduct because that information is privileged; in addition, the confidentiality
of that information is protected under Rule 1.6.
A lawyer who receives information while serving as a member of a bar
association committee or subcommittee, or as a member, employee, or agent of
a bar association established non-profit corporation designed to assist lawyers
with substance abuse or mental health problems does not have a duty to report
such information to disciplinary authorities because that is privileged knowledge
under Rule 8.3(c).
A lawyer is required to self-report his or her professional misconduct, as well as
report others’ misconduct that raises a question as to honesty, trustworthiness, or
fitness as a lawyer.
A lawyer, licensed in Ohio, also has a duty under Gov.Bar R. V(11)(F)(1), to
provide written notification to the Disciplinary Counsel and to the Clerk of the
Supreme Court of Ohio of the issuance of a disciplinary order in another
jurisdiction. The notification is to be made within thirty days of the issuance of
the disciplinary order.
Advisory Opinions of the Board of Commissioners on Grievances and
Discipline 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.