To Report or Not to Report
May 20, 2010
Most lawyers know that the Rules of Professional Conduct require lawyers to report certain conduct of other lawyers. Rule 8.3 provides that a lawyer who “knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the North Carolina State Bar or the court having jurisdiction over the matter.” Are there exceptions to this Rule? Sure. First, not all rule violations trigger a report. The conduct must be serious enough to report; that is, it must raise a substantial questions as to the lawyers honesty and fitness to practice. Second, if the information to be reported is client confidential information and the client does not consent to reporting this information, then the Rule does not require disclosure. Third, a lawyer also has to have actual knowledge of a serious violation for the reporting requirement to kick in. Fourth, the duty to report does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question. (Whew! That’s us). Fifth, confidential information gained by a lawyer from a lawyer seeking assistance in a lawyer’s assistance program (LAP) is excepted under the Rule.
Notwithstanding these exceptions, we understand that the State Bar has been issuing grievances on a growing basis for violations of Rule 8.3. In the past, this Rule was rarely invoked as a basis for discipline. Now if the State Bar sees any indication that a lawyer was aware of misconduct of another lawyer and failed to report it, the lawyer can expect to receive a grievance. The onus will be on the lawyer to demonstrate that an exception applies. If you know of lawyer misconduct and are trying to decide whether to report it, call the State Bar’s ethics hotline ( 919-828-4620 919-828-4620 ) for advice first and document any applicable exception to the Rule. You’ll need all the protection you can get.