Clarification on the duty to report attorney misconduct – Ohio Board of Professional Conduct releases new advisory opinion

The Board of Professional Conduct of the Supreme Court of Ohio released an advisory opinion (Op. 2016-2) today regarding an attorney's duty to report knowledge of the misconduct of another attorney. The Board specifically evaluated a scenario where an attorney represents a client against his former attorney for misappropriating funds, the parties reach a settlement without the former attorney admitting liability, and the settlement contains a confidentiality provision.

The questions addressed were:

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?

The Board found that,

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."

The Board emphasized that the duty to report under Prof. Cond. R. 8.3 turns on the issue of whether the information is protected by attorney-client privilege under Prof. Cond. R. 1.6. If it is, according to the opinion, then the attorney is not required to report it, but can encourage his or her client to consent to disclosure if it would not "substantially prejudice the client's interests." The Board indicated that an attorney must use professional judgment to determine whether the information is privileged or not.

Image via Wikimedia Commons.