Legal Ethics Opinion No. 1468
            Obligation to Report Attorney Misconduct.
  You have indicated that a lawyer was retained to represent the
ex-wife of an attorney in a domestic relations case. As part of
the preparation for the trial, the lawyer subpoenaed the
attorney's general and trust account records (only some of which
were provided) and reviewed other financial information from
other sources. You indicate further that apparent irregularities,
including the apparent payment of personal expenses from the
trust account and the making of personal loans to the attorney
from the trust account, were uncovered through the examination of
those records. You advise that there also appears to have been no
adherence to  DR 9-102 and  DR 9-103 regarding record keeping and
segregating of funds.

  Furthermore, you indicate that it is the client's desire that
no disclosure be made regarding her ex-husband's finances or
trust accounts and the client has directed the attorney not to do
so. The lawyer believes that it is not in the client's best
interest to disclose information regarding her ex-husband's trust
accounts since the apparent irregularities in those records may
cause the attorney business problems, thus reducing or
terminating the client's support.

  Finally, you indicate that the irregularities have been called
to the attention of a Circuit Court judge, to whom the
ex-husband/attorney has offered explanations. A seal on the
Circuit Court file exists, preventing disclosure of such
documentation to the public, and the Circuit Court judge has
ordered that no documentation provided to the wife's attorney, as
a result of a subpoena to the attorney's partner, shall be
publicly disseminated, and that the wife's attorney must return
the originals and all copies of such documents in the attorney's
possession at the end of the case.

  You have asked the Committee to opine, under the facts of the
inquiry, (1) whether the seal on the file and the Circuit Court
Order alleviates the wife's attorney's duty to report alleged
trust violations; (2) whether the wife's attorney may rely othe
Circuit Court Judge as satisfying the attorney's duty to disclose
alleged trust account irregularities; and (3) if the wife's
attorney must inform the Bar of the apparent irregularities over
the client's direct order not to do so, despite the likelihood
that such disclosure would cause the client irreparable harm.

  The appropriate and controlling disciplinary rules relative to
your inquiry are  DR 1-103(A) which mandates 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; [emphasis added]

   DR 4-101(A) and (B) (1) which provide respectively that

     "[c]onfidence"  refers to information protected by the
     attorney-client privilege under applicable law, and "secret"
     refers to other information gained in the professional
     relationship that the client has requested be held inviolate
     or the disclosure of which would be embarrassing or would be
     likely to be detrimental to the client; and

[except in limited circumstances] a lawyer shall not knowingly
reveal a confidence or secret of his client; and

 DR 7-101(A) (3) which precludes a lawyer from intentionally
prejudicing or damaging his client during the course of the
professional relationship, except as required under  DR:4-101(D),
i.e., when the client intends to commit a crime or has committed
a fraud against the court.

  Further guidance is available through Ethical Consideration 1-4
which exhorts that

     [t]he integrity of the profession can be maintained only if
     conduct of lawyers in violation of the Disciplinary Rules is
     brought to the attention of the proper officials. A lawyer
     should reveal voluntarily to those officials all
     unprivileged knowledge of conduct of lawyers which he
     believes clearly to be in violation of the Disciplinary
     Rules. [emphasis added]

  As indicated by the facts you have provided, the Committee is
cognizant of the dilemma which arises as a result of the lawyer's
tension between his duty, on the one hand, to report another
attorney's misconduct in order to protect the integrity of and
encourage public confidence in the profession and his duty, on
the other hand, to preserve the client's secrets and confidences
and not to intentionally prejudice or damage his client.

  The Committee is cognizant that  DR 1-103(A) mandates the
attorney's reporting of the misconduct only when such misconduct
raises a substantial question as to that lawyer's fitness to
practice law in other respects. Whether an attorney's conduct is
such that it raises a "substantial question as that lawyer's
fitness to practice law in other respects"  requires a
case-by-case determination which should be made after
consideration of the facts and analysis of the impact on the
offending lawyer's fitness to practice law. Nevertheless, the
Committee is of the general opinion that where an attorney has
knowledge of another attorney's misconduct involving a trust
account, such misconduct constitutes a per se violation which
must be reported.

  In the facts you present, the Committee is of the opinion that
the information as to the ex-husband/attorney's misconduct does
constitute a secret as defined by  DR 4-101, since such
information was gained in the course of the professional
relationship [with the ex-wife]; the ex-wife/client has requested
that it be held inviolate; and the disclosure of it would be
likely to be detrimental to the ex-wife/client.

  The Committee has previously opined that it is  to report to
the Bar information concerning unethical conduct by another
attorney when such information was obtained during the course of
the professional relationship and the client refuses to consent
to the disclosure thereof or when such disclosure would adversely
affect the client's interests. LE Op. 217 and LE Op. 497 

  In response to the three questions you raise, under the facts
you present, the Committee believes it would be improper and
violative of the attorney's ethical responsibility to preserve
the client's secret if the attorney disclosed the information in
derogation of the client's wishes since  DR 1-103(A) exempts from
obligatory reporting any information which is protected by  DR
4-101. Since the Committee is of the opinion that the attorney's
duty to preserve such secret information is paramount to the
attorney's duty to report misconduct, precluding the wife's
attorney from informing the Bar of the apparent irregularities,
your first and second questions, regarding the seal on the file
and the wife's attorney's reliance on disclosure to the Court,
are rendered moot.

  Finally, it appears to the Committee that for the attorney to
report the information also might be in violation of the Court's
direct Order precluding the attorney from disseminating the
information. Such violation of the Order would similarly be
improper and violative of  DR 7-105(A). 

  Committee Opinion
  December 14, 1992