Dear Fellow Members:
Below you will find a link to an online copy of the Maryland Rules of Professional Conduct. We have provided this link in hopes of making your search for answers to your legal ethics questions easier. As always, if you need additional guidance, please do not hesitate to call the Legal Ethics Committee hotline at the number listed in the current issue of your bar newsletter.
MD Rules of Professional Conduct
Legal Ethics Hotline Volunteers
A Lawyer’s Obligation: The Duty to Report Peer Misconduct
A lawyer’s obligation to report misconduct by a peer arises under Model Rules/Maryland Lawyers Rules of Professional Conduct (MLRPC) 8.3(a). Specifically, MLRPC Rule 8.3(a) requires a lawyer “who knows” that another lawyer has committed a violation of the Maryland Lawyer’s 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 appropriate professional authority. Notwithstanding this requirement, the Rule does not require disclosure of “privileged information” protected from disclosure by MLPRC 1.6 (governing confidentiality), or information gained by a lawyer while participating in an approved lawyers assistance program. See Model/MLRPC 8.3(c). Moreover, this obligation exists irrespective of any fiduciary duties law firm partners owe to each other. See e.g. Attorney Grievance Comm’n v. Kahn, 290 Md. 654, 431 A.2d 1336 (1981) (attorney disbarred for failing to report and aiding unethical conduct of his law firm).
In Attorney Grievance Comm’n v. Brennan, 350 Md. 489 (1998), the trial court found that an attorney’s failure to report his partner’s engaging in legal practice during the course of the partner’s suspension, including activities such as drafting briefs and conferring with clients, constituted a violation of Rule 8.3. Id.; 350 Md. at 496. Furthermore, self-reporting is not required under the Rule. See e.g., Attorney Grievance Comm’n of Maryland v. Palmer, 9 A.3d 37 (Md. 2010) (self-reporting not a significant factor in mitigation where the reporting occurred only after others in the firm learned of the misconduct and revealed it).
Notwithstanding this duty to report known ethical violations, however, a lawyer may report another lawyer’s wrongdoing involving a client only if the client consents to the disclosure. An opinion of the Maryland State Bar Association’s Ethics Committee precludes reporting if the client does not consent to the disclosure. See MSBA Ethics Op. No. 89-46 (1989) (client instruction not to report breach of fiduciary duty precludes reporting).
MLRPC 8.3(a) as written begs the question: What constitutes sufficient “knowledge” of a violation in the context of a lawyer’s duty to report? Pursuant to Model/MLRPC 8.3(a), “knowing” suggests actual knowledge of the fact or facts at issue. If so, can knowledge be inferred from the circumstances? The answer is not entirely clear. The MLRPC 8.3(a) does not specifically define “knowledge.” But, a number of Maryland State Bar Association Ethics Opinions have explained that a “person’s knowledge may be inferred from circumstances.” See generally, MSBA Ethics Op. 98-16(1998). The duty to report “requires that a lawyer have some reliable evidence which indicates a reasonable probability that a violation has occurred.” See MSBA Ethics Op. 89-36 (1989). That Opinion provides that “a lawyer representing other lawyers must report their misconduct if [he] has actual knowledge thereof which has already been revealed to a court and, therefore is a matter of record.” See Id.
Tracking the language of Rule 8.3(a), the next issue to be addressed is, what conduct raises a “substantial question” as to a lawyer’s honesty, trustworthiness or fitness, thus requiring reporting? On this score, the rule “limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent.” See MSBA Ethics Op. 98-16 (1998) (“recognizing that a measure of judgment is required and that the term ‘substantial’ refers to the seriousness of the possible offense…”). The analyses in this Opinion appear to concede the difficulty associated with reaching this judgment. The emphasis in both MLRPC 8.3 and the ethics opinions appear to focus on the gravity of the wrongdoing and not the quantity of the evidence of wrongdoing when forming this judgment. But without more, how does a lawyer conclude what is ‘serious’ and what isn’t? Perhaps, like pornography, the test of ‘you will know it when you see it’ is a valid measuring rod.
A report of wrongdoing to the Attorney Grievance Commission satisfies the reporting obligation under MLRPC 8.3 and there is no additional duty to “require” revelation to the offending lawyer’s clients. See MSBA Ethics Op. 96-31 (1996). Finally, although a member of the bar may report wrongdoing of an out-of-state attorney to the governing body of the other state, there is no “consensus” as to whether there is a duty to report wrongdoing to Maryland’s disciplinary authority where the conduct involves an out-of-state lawyer. See MSBA Ethics Op. 98-3(1998). It bears noting in this context, however, that Rule 14 (d) of the Rules Governing Admission to the Bar of Maryland concerning pro hac vice admitted lawyers provides that such attorneys are subject to the Maryland Lawyers’ Rules of Professional Conduct. Beyond these circumstances and authorities, there is little other guidance as to the breadth of the reporting obligation under MLRPC 8.3(a).
So, when must a lawyer report wrongdoing? In sum, although Maryland State Bar Association (“MSBA”) has endorsed an attorney’s obligation to report wrongdoing, it has provided little, if any, guidance. MLRPC Rule 8.3(a) raises many additional questions that future Ethics Opinions must address, including the quantum and quality of “knowledge” or other “evidence” the reporting lawyer must have before the reporting obligation arises. In the end, anecdotal evidence suggests that practitioners seem disinclined to perform the unsavory duty of reporting peers to disciplinary authorities without clearer guidelines on the breadth of the reporting obligation. In the meantime, lawyers should endeavor to ‘do the right thing.’ After learning of purported ethical wrongdoing, analyze the rules of professional conduct, the ‘seriousness’ of the wrongdoing, determine whether reporting might hurt a client’s cause of action or require client consent, and carefully analyze the breadth, weight and trustworthiness of your “knowledge” of wrongdoing. Only after a thorough analysis of these factors can you begin to determine your obligations under Maryland Rule 8.3(a).
Jacqueline E. Ngole, Committee Member
Daniel L. Shea, Co-Chair
Samuel M. Shapiro, Co-Chair
Allen J. Katz
Samuel M. Shapiro
Daniel L. Shea
September 17, 2015
October 15, 2015
November 19, 2015
December 17, 2015
January 21, 2016
February 18, 20156
March 17, 2016
April 21, 2016
May 19, 2016
Meetings will be held at 4:30 p.m. on the 3rd Thursday of the month in the upstairs conference room of the Bar Association building, unless otherwise noted.