Ohio Board Advisory Opinion Op 90-001

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 90-1
Issued February 23, 1990
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio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.]
SYLLABUS: A lawyer is required under DR 1-103(A) to report any unprivileged knowledge of a
violation of DR 1-102 to the Office of Disciplinary Counsel or a bar association's certified
grievance committee. Disciplinary Rule 1-102 mandates that lawyers shall not violate a DR;
circumvent a DR through the actions of another; engage in illegal conduct involving moral
turpitude; engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; engage in
conduct that is prejudicial to the administration of justice or; engage in any other conduct that
adversely reflects on his or her fitness to practice law.
A lawyer is not required to report privileged information obtained in a confidential relationship.
Privileged information would include both confidences and secrets as defined in DR 4-101(A). A
lawyer may reveal a client's secrets or confidences if the client consents under DR 4-101(C).
OPINION: We have before us a request for an advisory opinion regarding a lawyer's duty to
report another lawyer's misconduct under DR 1-103. The facts are as follows. A lawyer represents
a client against the client's former attorney to recover certain monies the former attorney allegedly
misappropriated from the client. A settlement is reached, curing the delinquencies but without an
admission of liability by the former attorney. Confidentiality is a condition of the settlement.
The questions are whether the lawyer who represented the client against the former attorney has a
duty under DR 1-103(A) to report the former attorney to the proper authorities. If there is a duty,
when does it arise and at what point would a failure to report constitute a violation of DR 1-
103(A)? More specifically, is the information acquired from the client regarding the former
attorney's conduct privileged, thereby alleviating any duty to report? Finally, does the lawyer have
to obtain his or her client's consent before revealing the information regarding the former attorney?
Withdrawn by Adv. Op. 2016-02

Op. 90-1 2
Disciplinary Rule 1-103(A) states that a lawyer possessing unprivileged knowledge of a violation
of DR 1-102 shall report such knowledge to a tribunal or other authority empowered to investigate
or act upon such violation. The proper authority would be the Office of Disciplinary Counsel or a
bar association's certified grievance committee. Disciplinary Rule 1-102 states that a lawyer shall
not violate a DR, circumvent a DR through the actions of another; engage in illegal conduct
involving moral turpitude; engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation; engage in conduct that is prejudicial to the administration of justice or; engage
in any other conduct that adversely reflects on his or her fitness to practice law.
A lawyer's obligation to report another lawyer's misconduct is "far from absolute." Lynch, The
Lawyer As Informer, 1986 Duke L.J. 491, 515 (1986). However, one commentator has noted that
"many lawyers who do come across truly serious misconduct by other lawyers want to report to the
disciplinary authorities." Rotunda, The Lawyer's Duty to Report Another Lawyer's Unethical
Violations in the Wake of Himmel, 1988 Univ. Ill. L.R. 977, 992 (1988).
The key phrase in DR 1-103(A) is "unprivileged knowledge." A lawyer must have knowledge that
another lawyer has violated one of the provisions of DR 1-102 (this includes a violation of any DR)
in order to invoke the reporting requirement. Ethical consideration 1-4 provides that a lawyer
should reveal voluntarily all unprivileged knowledge which he or she believes is clearly in violation
of the Disciplinary Rules. The knowledge requirement seems to exclude the lawyer "who has good
faith questions about whether a violation has actually occurred." Lynch, The Lawyer As Informer,
1986 Duke L.J. 491, 516 (1986). Nevertheless, a lawyer's duty to report is not relieved where the
lawyer being reported does not admit liability or even denies any misconduct. Rotunda, The
Lawyer's Duty to Report Another Lawyer's Unethical Violations in the Wake of Himmel, 1988
Univ. Ill. L.R. 977, 985 (1988). Professor Rotunda further states,
at some point the lawyer's investigation and study of the client's charges will
convince her that the allegations involving the other lawyer's misconduct are serious
and substantial; . . . and that the evidence of such conduct is substantial enough that
the lawyer has "knowledge." Within a reasonable time thereafter, the lawyer must
report this knowledge if it is unprivileged.

Op. 90-1 3
In a controversial case the Illinois Supreme Court recently suspended a lawyer for one year based
solely on his failure to report another lawyer's misconduct. In re Himmel, 125 Ill.2d 531, 533
N.E.2d 790 (1988). See, also, Marcotte, The Duty to Inform, ABAJ May, 1989 at 17; Middleton,
Illinois Bar Is Jarred by "Snitch" Case, Nat'l L.J. Dec. 19, 1988, at 3, 23. Mr. Himmel represented
a client attempting to recover a $23,233 personal injury settlement that her former attorney
converted. Himmel settled the claim against his client's former attorney for $75,000 and was to
receive one-third of any amount here covered above $23,233. At the client's direction, the
settlement agreement included language prohibiting the disclosure of the former attorney's
misconduct to the proper disciplinary agency. Himmel sued his client's former attorney who
breached the agreement, winning a $100,000 judgment which brought Himmel's failure to report to
the attention of the Illinois disciplinary commission.
The Illinois Supreme Court rejected Himmel's argument that the information regarding the former
attorney was protected by the attorney-client privilege because the client's mother and fiance were
present during the discussion of the case. The Court rejected Himmel's claim that he was following
his client's instructions not to tell the disciplinary authorities and held: "[a] lawyer may not choose
to circumvent the rules by simply asserting that his client asked him to do so." Id. at 539, 533
N.E.2d at 793.
In our view, the Himmel court overlooks the significance of the attorney-client privilege. We
disagree with the court's narrow interpretation of the word "privilege" under DR 1-103(A). The
Illinois court's holding "assumed that 'privilege' referred only to the law of evidence." Rotunda,
The Lawyer's Duty to Report Another Lawyer's Unethical Violations in the Wake of Himmel, 1988
Univ. Ill. L.R. 977, 987 (1988). Disciplinary Rule-4-101 determines the parameters of the attorney-
client privilege which we believe applies to the duty to report under DR 1-103.
Privileged communications are "confidences and secrets that are required to be preserved by DR 4-
101." Id. at 987, citing, ABA Comm. on Ethics and Professional Responsibility, Formal Op. 341
(1975). Both "confidences" and "secrets" are defined in DR 4-101(A). A "confidence" is
information protected by the attorney-client privilege under the applicable law. Ohio Revised Code
§2317.02 prohibits an attorney from testifying

Op. 90-1 4
regarding a communication made to the attorney by his or her client in that relation or advice the
attorney gives the client unless the client expressly consents. A "secret" refers to other information
gained in the professional relationship that the client requests be held inviolate. Code of
Professional Responsibility, DR 4-101(A).
Therefore, a lawyer does not have a duty to report the client's former attorney if the information
was gained in the professional relationship and the client requested the information be held
inviolate. If a lawyer determines that he or she has a duty to report unprivileged knowledge of
another lawyer's misconduct, a failure to report within a reasonable time would violate DR 1-103.
A lawyer should not aggravate his or her violation of DR 1-103 by continuing to fail to report.
In conclusion, it is our opinion that a lawyer does have a duty to report unprivileged knowledge of
another lawyer's misconduct. Privileged communications are defined in the Ohio Rev. Code
§2317.02 and DR 4-101(A). A lawyer is required to keep secret information gained in a
professional relationship that the client requests be held inviolate or the disclosure of which would
be embarrassing or would likely be detrimental to the client. A lawyer is not required to report
privileged information of another lawyer's misconduct. A lawyer may, however, reveal a client's
secrets or confidences if the client consents under DR 4-101(C).
This is an informal, non-binding advisory opinion based upon the facts presented and limited
to questions arising under the Code of Professional Responsibility.