LEO: Attorney - Duty to Report Misconduct LE Op. 1004
Attorney - Duty to Report Misconduct.
December 9, 1987
You wish to know whether a Virginia attorney is obligated, pursuant to
DR:1-103(A), to report criminal conduct, known or believed by him to have
been engaged in by other Virginia counsel, when there is no demonstration
that this criminal conduct, however morally culpable it may be, has
affected the lawyer's ability to practice law.
Disciplinary Rule 1-103(A) states that "a lawyer having information
indicating another lawyer has committed a violation of the Disciplinary
Rules which raises a substantial question as to that lawyer's fitness to
practice law in other respects, shall report such information to the
appropriate professional authority, except as provided in DR:4-101."
Disciplinary Rule 4-101 provides for the preservation of client
confidences and secrets and is not applicable to this inquiry.
Disciplinary Rule 1-103(A) contains a two-prong test. First, a lawyer
must have information indicating that another lawyer's conduct has
violated one of the Disciplinary Rules of the Virginia Code of
Professional Responsibility. Your question involves a lawyer who has
committed a crime as defined in § IV, Organization and Government of the
Virginia State Bar:
Paragraph 13. Procedure for Disciplining, Suspending and Disbarring
(9) "Crime" means (a) any offense declared to be a felony by Federal or
state law; (b) any offense, whether Federal or state involving theft,
fraud, forgery, extortion, bribery, or perjury; or (c) an attempt,
solicitation or conspiracy to commit any of the foregoing. Any criminal
offense may be deemed to be misconduct as hereinafter defined.
Disciplinary Rule 1-102(A)(3) [ DR:1-102] is violated if a lawyer
commits a crime or other deliberately wrongful act that "reflects
adversely on the lawyer's fitness to practice law." If the attorney has
committed a crime which reflects adversely on his fitness to practice law
the first prong of DR:1-103(A) would be satisfied. See also EC:1-5,
A lawyer should maintain high standards of professional conduct and should
encourage fellow lawyers to do likewise. He should be temperate and
dignified, and he should refrain from all illegal and ethically
reprehensible conduct which reflects adversely on his fitness to practice
law. Because of his position in society, even minor violations of law by a
lawyer may tend to lessen public confidence in the legal profession.
Obedience to law exemplifies respect for law. To lawyers especially,
respect for the law should be more than a platitude.
The second prong of DR:1-103(A) is whether the violation of the
disciplinary rule "raises a substantial question as to that lawyer's
fitness to practice law in other respects." Your inquiry suggested that
the degree of moral culpability involved in the crime is a lesser concern
to the issue of the attorney's "fitness" to practice law. The Committee
disagrees and opines that the degree of moral culpability involved in the
crime may or may not be one relevant factor in determining if the
commission of the crime raises a substantial question as to the lawyer's
fitness to practice law. Other relevant factors include, but are certainly
not limited to, the recency of the crime, the seriousness of the offense,
the likelihood that the crime will be repeated, the likelihood that it
will affect the attorney's competence and any mitigating or aggravating
circumstances. No single factor is controlling in every case and all
factors need not be met in order that a substantial question be raised as
to an attorney's fitness to practice law.
The determination of whether a violation must be reported is a
substantive one for the most part. However, certain violations may be so
severe that reasonable people could not differ as to whether the violation
must be reported. In LE Op. 977, the Committee believed that the crime
and the fact that it had recently been committed was sufficient to
conclude that the use of cocaine raised a substantial question as to the
fitness of that lawyer to practice law. It was not the Committee's opinion
that reasonable people might not differ on this issue, depending upon the
particular circumstances surrounding the offense and in particular any
mitigating circumstances. Accordingly, the commission of the crime, as
described in LE Op. 977, should be viewed in light of the particular
circumstances involved to determine whether the conduct raises a "
substantial question" in the mind of the inquirer, which in turn would
control the question of whether reporting is or is not required.
In summary, based on your inquiry, knowledge of a violation of DR:1-101(
A)(3) which does not raise a substantial question as to that lawyer's
fitness to practice law in other respects, does not create a duty to
report misconduct pursuant to DR:1-103(A).
Committee Opinion December 9, 1987