Opinion #227. Required Reporting M.R. Prof. Conduct 8.3

Issued by the Professional Ethics Commission

Date Issued: January 8, 2025

Introduction

The purpose of this opinion is to provide guidance to counsel concerning the requirement for the mandatory reporting of professional misconduct.

Guidance Summary

Rule 8.3 is directed toward protecting the public and the integrity of the legal system, deterring unethical conduct, and safeguarding against acts that are prejudicial to the administration of justice. Rule 8.3 simply provides that: "a lawyer who knows that another lawyer has committed a violation of the Maine 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.1"
2The level of knowledge necessary to trigger mandatory reporting requires judgment concerning the circumstances and evidence at hand, but the reporting lawyer is not under an obligation to investigate the misconduct. Lawyers must report misconduct that 1) violates the Maine Rules of Professional Conduct; and 2) that raises a "substantial question" about another lawyer's "honesty, trustworthiness, or fitness as a lawyer in other respects." M.R. Prof. Conduct 8.3(a). A lawyer may be required to report such conduct both within and outside of litigation. The reporting of misconduct should be made as promptly as the circumstances permit. The rules do not require the disclosure of confidential information protected by Rule 1.6.

1In Maine, the appropriate professional authority will be the Maine Board of Overseers of the Bar, or in certain circumstances, as described in the Maine Rules for Maine Assistance Program for Lawyers and Judges, the Maine Assistance Program for Lawyers and Judges.

2Practitioners may utilize the confidential Board of Overseers' Ethics Helpline to assist in determining conduct appropriate to report and how to make a report.

Applicable Rules

M.R. Prof. Conduct Rules 8.3, 8.4, and 1.6.

Discussion

Maine Rules of Professional Conduct 8.3 governs the reporting of misconduct involving violations of the Rule of Professional Conduct and the Maine Bar Rules. M.R. Prof. Conduct 8.3, Advisory Note February 2010. The Rules require: a) knowledge of misconduct by the reporting lawyer, based on actual facts; b) a measure of judgment concerning the extent of the violation, going beyond mere negligence or malpractice; and c) information that triggers a substantial question as to the violating lawyers honesty, trustworthiness, or fitness as a lawyer. The objectives of mandatory reporting are several and varied. It promotes the integrity of the legal system and professionalism within the profession; protects clients and the public; provides a cost-effective means of uncovering misconduct; and serves as a deterrent to unethical conduct. This opinion addresses four critical points of concern on the reporting of the professional misconduct of others: (1) the level of knowledge that triggers reporting; (2) what misconduct triggers a duty to report, and the measure of judgment permitted concerning the extent of the violation; (3) confidentiality and the reporting requirement; and (4) the time frame for making the report.

1. The Requirement of Knowledge The extent of a reporting attorneys knowledge serves as the critical starting point in a determination of whether a report must be made. At the threshold, the Rule seeks to place limits on a lawyer's discretion to avoid reporting professional misconduct. Rule 8.3 simply requires that misconduct rising to a certain level be reported to appropriate authorities for an investigation. Lawyers have a similar obligation to report judicial misconduct. M.R. Prof. Conduct 8.3, cmt. 1. The reporting lawyer is not responsible for investigating or coming to a definitive conclusion concerning whether misconduct or a violation has occurred. When deciding whether to report, lawyers should consider that [a]n apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. M.R. Prof. Conduct 8.3, cmt. 1. In 1989, the Maine Professional Ethics Commission (Me PEC) advised that a lawyer has no duty to report another lawyers misconduct to disciplinary authorities, unless the lawyer has knowledge, based on a substantial degree of certainty, that the violating lawyer has committed an offense that raises a substantial question regarding the lawyers honesty, trustworthiness, or fitness to practice law. Me PEC, Op. No. 100 (Oct. 4, 1989). Stated otherwise, if a lawyer lacks the requisite knowledge of the violation, there is no duty to report. Me PEC, Enduring Ethics Opinion (EEO) 100 (November 2017). What constitutes "knowledge" of misconduct for Rule 8.3 purposes is addressed in the separate definition of knowledge provided in Rule 1.0(f). Maine Rule 1.0 contains various definitions, including knowledge, knowingly, known, and knows. M.R. Prof. Conduct 1.0(f). Knowing or knowledge under the Rules means actual knowledge of a fact. M.R. Prof. Conduct 1.0(f). Despite these definitions, it can be challenging for an attorney to decide whether they have actual knowledge of a fact. The Law Court has stated that actual knowledge is required but may be inferred from the circumstances. Warren v. Board of Overseers of the Bar, 2011 ME 124 26, 34 A.3d 1103, 1110; see also M.R. Prof. Conduct 1.0(f) (A persons knowledge may be inferred from the circumstances). At what level of knowledge is a lawyer required to act? Me PEC attempted to clarify the reporting obligations in 1989: [a] lawyer is obligated to report only that which he believes clearly to be in violation of the [Rules of Professional Conduct or the Bar Rules]... [and] knowledge of the offense should be based on a substantial degree of certainty and not on rumor or suspicion. Me PEC Op. 100 (emphasis in original); See also EEO 100. The suspicion of misconduct by another lawyer does not trigger a duty to report. The reporting standard does not require absolute certainty. On the other hand, suspect evidence and a lack of corroboration may militate against reporting.
The test of knowledge requires something more than rumor or suspicion; it requires the reporting lawyer's actual knowledge of facts, or knowledge inferred from circumstances of misconduct. Rule 1.0(i). A lawyer is required to report misconduct when the reporting attorney subjectively knows to a substantial certainty that the offending lawyer has committed a violation of the Maine Rules of Professional Conduct. EEO 100. In determining actual knowledge, lawyers may not suspend their common sense. A suspicious lawyer may not remain silent simply because an accused lawyer professes innocence or offers a deficient explanation for the questionable conduct when confronted. Stated otherwise, turning a blind eye to reality or studious ignorance of assessable facts is the functional equivalent of knowledge. A lawyer is expected to draw reasonable conclusions from known facts.

2. The Duty to Report: Substantial Question About Honesty, Trustworthiness or Fitness Rule 8.3(a) obligates lawyers to report only that misconduct which raises a "substantial question" about another lawyer's "honesty, trustworthiness, or fitness as a lawyer in other respects." Me R. Prof. Conduct 8.3 cmt. 1. The term "substantial" refers to the seriousness of the possible misconduct, not the quantum of evidence of which the lawyer is aware. M.R. Prof. Conduct 8.3 cmt. 3. It connotes "a material matter of clear and weighty importance," Id. Whether a lawyer has a substantial question concerning anothers honesty, trustworthiness, or fitness is a subjective test concerning the attorneys actual belief at the time. Warren, 2011 Me at 26, 34 A.3d at 1110. To require reporting, a violation must raise a substantial question about the offending lawyer's fitness as a lawyer. M.R. Prof. Conduct 8.4 cmt. 2. "Fitness," as used in this context, is more than professional competence. The offending conduct may diminish public confidence in the legal profession, such as offences involving violence, dishonesty, breach of trust, or serious interference with the administration of justice. Id. Examples would include specific criminal conduct such as intimate partner violence, drug offenses and crimes related to unaddressed substance abuse. Rule 8.3 applies to reporting all misconduct involving violations of the Rules of Professional Conduct and the Maine Bar Rules or assisting others to do so. Rule 8.4 catalogues a variety of conduct that reflects adversely on a lawyers honesty, trustworthiness, or fitness to practice law. See M.R. Prof. Conduct Rule 8.4. However, Rule 8.4 should not be understood as presenting an exclusive list of misconduct that, under certain circumstances, might implicate Rule 8.3.

3. Confidentiality and Misconduct Reporting Rule 8.3 does not require an attorney to disclose information deemed confidential under Rule 1.6. M.R. Prof. Conduct 8.3(c). The attorney-client privilege generally applies only if the communications at issue were intended to obtain legal advice or assistance, while a lawyer's duty of confidentiality under Rule 1.6 shields all information related to the client's representation. The attorney-client privilege may be waived by purposeful disclosure, such as where the client files suit or asserts a defense to which the protected information is relevant. Rule 1.6 contains exceptions to confidentiality and those situations may require reporting. M.R. Prof. Conduct 8.3(a)(iii). Disclosure of confidential information would be permitted under Rule 1.6 (b) in various circumstances. M.R. Prof. Conduct 1.6(b). One of the first reported cases disciplining an attorney for failure to report misconduct, In re Himmel, 125 Ill. 2d 531, 533 N.E. 2d 790 (1988) was prosecuted under the then ABA Model Code of Professional Responsibility DR-103. The attorney had information that his clients previous lawyer had wrongfully converted the clients settlement funds. The attorney argued that he did not report the prior lawyers misconduct because his client, for whom the attorney was pursuing a claim for the wrongfully appropriated settlement funds, directed him not to do so in order to enhance the value of the misappropriation claim against the prior lawyer. Id. at 792. The Illinois Supreme Court rejected this argument, reasoning that "[a] lawyer may not choose to circumvent the [ethics] rules by simply asserting that his client asked him to do so." Id. at 793. The Court also rejected the contention that the offending lawyers misconduct was privileged where the client made disclosures to the non-reporting attorney about the prior lawyer in the presence of a non-client, and the attorney, with the clients consent, discussed the misappropriation of funds with the insurance company, which had issued the check, and its lawyers. A lawyer may, in appropriate cases, fulfill the duty to report misconduct, where the issue concerns a lawyers impairment, by a report to the Maine Assistance Program for Lawyers (MAP). M.R. Prof. Conduct 8.3 n.6. The goal of the MAP, providing confidential assistance to lawyers facing impairment to the ability to practice and facilitating early intervention and treatment, supports the overarching objectives of reporting to protect the public and the integrity of the legal system.

4. Timing of Misconduct Reports Rule 8.3 does not specify when a lawyer must report another lawyer's professional misconduct to appropriate authorities. By way of general guidance, lawyers should report conduct that raises substantial questions promptly, or within a reasonable time under the circumstances. Prompt reporting fosters the integrity of the system, protects against ongoing harm to the public, and allows remedial action to occur on more reliable evidence. Neither the Maine Rules of Professional Conduct nor the Maine Bar Rules contain a statute of limitations. In actual or threatened litigation in which an adversary's attorney engages in alleged misconduct, a lawyer cannot use the threat of a report to the appropriate authorities as a bargaining chip in litigation, and such action, for purposes of gaining an advantage in litigation, might constitute a violation of the Maine Rules of Professional Conduct. See M.R. Prof. Conduct 3(b). If an attorney does not intend the report of misconduct to provide any sort of litigation advantage or force a settlement, prompt reporting of the misconduct may deflect charges of ulterior motives. There may be circumstances, however, in which a lawyer should delay reporting another attorney's professional misconduct. The most obvious situation excusing a delay in reporting misconduct is one in which delay best protects the interests of the offending attorneys client. Several factors militate against delaying a report of misconduct. These may include the seriousness of the violation, the likelihood of repeated conduct by the offending lawyer, and the degree of prejudice or not, that ones client would suffer.

Enduring Ethics Opinion