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

Attorneys. --

 

A. Definitions....

 

(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,

which provides:

 

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