Legal Ethics Opinion No. 1450
Duty to Report Misconduct of Other Attorney; Firm's Involvement
in Attorney's Carrying Out Obligation
You have presented a hypothetical situation in which a Virginia
attorney ("the complaining attorney"), who practices with a firm,
has filed or is considering filing an ethical grievance against
another Virginia attorney ("the subject"), who practices with
another firm. The complaining attorney consults with other
attorneys participating in the matter out of which the grievance
arose but does not seek advice or permission from his firm before
filing the grievance. The complaining attorney believes that,
ethically and legally, such grievances should be kept
confidential and that they are the individual responsibility of
each attorney.
After the grievance is filed, the subject of the grievance, or
another attorney in his firm, communicates with the complaining
attorney's firm. The intent of this communication may be
disputed. Afterwards, however, the complaining attorney's firm
requests or implies that the attorney consider withdrawing the
complaint because of possible ramifications to the firm's
business (e.g., referrals from the subject attorney's firm). The
firm also instructs all firm attorneys to consult with firm
management before filing any future grievances. You state that
firm management's role in this process is not clear, however, you
are concerned that this incident suggests that firm management
would consider potential impact on firm business to be a
consideration before filing a grievance.
The appropriate and controlling Disciplinary Rules related to
your inquiry are DR 1-103(A), which provides that a lawyer having
information indicating that another lawyer has committed a
violation of the Disciplinary Rules that 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; and DR
l-l02(A)(2), (3) and (4) which respectively prohibit a lawyer
from circumventing a Disciplinary Rule through the actions of
another, from committing a crime or other deliberately wrongful
act, and from engaging in conduct involving dishonesty, fraud,
deceit, or misrepresentation when any of those activities reflect
adversely on a lawyer's fitness to practice law.
The committee responds to your inquiries relative to the facts
you have presented as follows:
1. With regard to whether an attorney may consult with
other attorneys of his firm before deciding whether to
file an ethical complaint with the Bar, the committee
directs your attention to EC 4-2. Ethical
Consideration 4-2 provides that unless the client
otherwise directs, a lawyer may disclose the affairs of
his client to partners or associates of his firm. Thus,
the committee is of the opinion that an attorney mayconsult with other attorneys in his firm before making
the decision whether to file an ethical complaint.
2. With regard to whether an attorney may be required to
consult with firm members before filing an ethical
complaint, the committee is of the opinion that such
requirement would be in violation of DR l-l03(A) in
that the employer/firm may be perceived as pressure on
the lawyer to refrain from reporting misconduct in
derogation of his obligation to do so. Since such a
requirement may have a chilling effect on the
attorney's responsibility to report misconduct, the
committee is of the opinion that the law firm may not
require such consultation, but recognizes that
reasonable policies which encourage it do not violate
DR l-l03(A).
3. As to the obligations of an attorney who believes
another attorney has committed an ethical violation but
who has been requested or instructed by his firm not to
pursue an ethical complaint, the committee believes
that DR 1-103(A) is controlling. The committee directs
your attention to Ethical Consideration 1-4 which
advises that the integrity of the legal profession can
be maintained only if conduct of lawyers in violation
of the Disciplinary Rules is brought to the attention
of the proper officials. The committee has also
previously opined that an attorney has an obligation to
report violations of the Disciplinary Rules even when
the attorney believes or has cause to believe that some other party
has reported the misconduct. See LEO #838. In the
facts you present, therefore, the committee opines that
an attorney who believes that another attorney has
committed a disciplinary violation that raises a
substantial question as to that lawyer's fitness to
practice law in other respects has an obligation to
report the misconduct, regardless of whether his firm
has requested or instructed him not to do so.
4. In response to your inquiry as to the factors to be
considered by an attorney before making an ethical
complaint, the committee refers you to prior LEO #1004
which articulates the two-prong test to be satisfied
under DR 1-103(A) before the obligation to report
misconduct arises: (l) the lawyer must have information
indicating that another lawyer's conduct has violated
one of the Disciplinary Rules and (2) that violation
must raise a substantial question as to that lawyer's
fitness to practice law in other respects.
5. With regard to whether it is appropriate for the
attorney to consider the potential economic or business
impact upon his firm in deciding whether to make an
ethical complaint, the committee believes that the
attorney's obligation towards maintaining the integrity
of the profession clearly should override such
considerations. Thus, the committee is of the opinion
that potential economic or business impact is not an
appropriate factor to consider in deciding whether to
make a complaint.
6. As to whether it is appropriate for the reported
attorney to contact the reporting attorney or his firm
about the grievance, the committee is unaware of any
Disciplinary Rules which would prohibit such
communication. The committee is of the view that if
the reported attorney asserts or implies that the
reporting attorney or his firm will be economically
impacted unless the complaint is withdrawn, the
reported attorney may be violating DR l-l02(A)(2, 3, or
4).
7. Finally, with regard to whether it is appropriate for
an attorney to request withdrawal of an ethical
complaint at the request of other firm members, the
committee is of the opinion that the decision to make
or request the withdrawal of an ethical complaint rests
with the individual attorney, and that it is improper
for the attorney's firm to direct that decision.
Moreover, the committee cautions that any request by
the reporting attorney to withdraw a complaint may not
be controlling. See Virginia State Bar Council Rules
of Disciplinary Procedure, Rule V(E). The committee
also opines that since economic or business reasons are
not appropriate considerations in deciding whether to make a complaint,
they are likewise not appropriate concerns in deciding
whether to withdraw one.
Committee Opinion
March 23, 1992
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