In July, a new ethics advisory opinion was issued out of South Carolina to address a question related to the obligation to report the misconduct of another lawyer, specifically what sort of timing is required.
South Carolina Ethics Advisory Opinion 16-04 addresses an inquiry from a lawyer (Lawyer A) who believes he has knowledge of a violation of RPC 3.3 by opposing counsel in litigation (Lawyer B) but is worried about the negative ramifications to his client if he makes a disciplinary report while the litigation is ongoing. The South Carolina opinion offers the correct conclusion –“Lawyer A may wait until the conclusion of the case, or appeal, before making the report against Lawyer B if Lawyer A determines that a later report would be in the best interest of the client.”
The South Carolina opinion also correctly acknowledges in its discussion that Lawyer A’s client needs to consent to the report for it to even happen, but manages to truly miss an opportunity (in my opinion at least) to provide a thorough, and thoroughly helpful, treatment of why the fact that the ethics rules essentially give a veto to Lawyer A’s client must obviously mean that Lawyer A’s client’s interests could also justify delay in making a report.
After briefly acknowledging that a more than 10-year old Louisiana case represents the prevailing view that a report necessary under RPC 8.3 should be made “promptly,” the South Carolina opinion explains:
[It] believes it is appropriate for a lawyer to consider any potential adverse impact to his or client in determining the timing of a report against another lawyer. It is the opinion of this Committee that if Lawyer A believes the conduct of Lawyer B raises a “substantial question as to [Lawyer B’s] honesty, trustworthiness or fitness as a lawyer in other respects,” then Lawyer A must report such misconduct to the disciplinary authority. Because the Rule is silent regarding the timing of such report, Lawyer A may wait until the conclusion of the matter if Lawyer A determines immediate reporting may hurt the client. However, the misconduct should be reported “promptly” at the conclusion of the litigation or appeal.
I shouldn’t complain too strongly because, at least this opinion manages to explicitly acknowledge the need for client consent in the first place, and also as mentioned gets the answer right, but it still reads to me like a missed opportunity. Resting everything on the idea that the rule is simply silent on timing is much less persuasive than elaborating on the natural way in which the necessary discussion between Lawyer A and his client about whether the client will let Lawyer A make a report at all can lead to a decision that the client will provide consent but only for a report to be made at a future time.
South Carolina has versions of RPC 8.3(b) and (d) that are substantively identical to the ABA Model Rule 8.3(a) and (c). It also has a relevant, identical paragraph in its Comment to the Rule. The two subsections of the rule, as confirmed by the comment language, work together to explain that, in a situation in which a lawyer knows of another lawyer’s violation of the ethics rules that raises substantial questions as to the other lawyer’s honesty, trustworthiness, or fitness to practice law, the lawyer has an ethical obligation to report the other lawyer. And, that obligation is one for which the lawyer can himself be disciplined if he fails to make such a report. But, and it is an important “but,” one that is quite often disregarded by lawyers and disciplinary counsel alike — Model Rule 3.8(c) [South Carolina’s RPC 8.3(d)] indicates that there is no such obligation to report (and thus there can be no punishment for remaining silent) if the report would require the lawyer to disclose RPC 1.6 information. In any jurisdiction in which the scope of confidentiality is as broad as it is under the ABA Model Rules, this is the kind of exception with the potential to swallow the rule over which ethics nerds can argue for hours.
Accordingly, Comment [2] to RPC 8.3 in South Carolina (just like the ABA Model) explains that a lawyer ought to “encourage a client to consent to disclosure where prosecution would not substantially prejudice the client’s interests. Thus, the South Carolina opinion could have gone into greater detail to explain that the only way to make a report about Lawyer B’s violation of RPC 3.3 would be to disclose information about Lawyer A’s representation of his own client and, thus, Lawyer A would have to seek and obtain his client’s consent before making the report.
The South Carolina opinion then could have turned to how such a conversation might go . . . Lawyer A would explain the problem, the ethical obligation, and the client’s ability to say no to the report. The client would likely ask Lawyer A questions about what the report would mean for the case and, as part of that, Lawyer A and client could well discuss and reach the conclusion that if the disclosure and report doesn’t happen until after the case is over, that it would make certain not to prejudice the client’s matter. Thus, Lawyer A could fulfill the obligation to encourage the client to consent, and the client could provide the necessary consent to make the report but condition it upon the timing of the report.