8.3 Reporting Professional Misconduct

(a) 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.[6]

(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge?s fitness for office shall inform the appropriate professional authority.[7]

(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in the Maine Assistance Program for Lawyers, or an equivalent peer assistance program approved by a state?s highest court.

COMMENT

[1] Self-regulation of the legal profession requires that members of the profession inform the appropriate professional authority when they know of a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer?s honesty, trustworthiness or fitness as a lawyer. Lawyers have a similar obligation with respect to judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense.

[2] In order to satisfy the objectives of this Rule, a lawyer may request that a client consent to disclosure where prosecution would not substantially prejudice the client?s interests.

[3] This Rule limits the reporting obligation to those incidents of misconduct that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term ?substantial? refers to the seriousness of the possible misconduct and not the quantum of evidence of which the lawyer is aware. A report should be made to the appropriate professional authority unless some other agency is more appropriate in the circumstances. Similar considerations apply to the reporting of judicial misconduct.

[4] The duty to report professional misconduct does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question. Such a situation is governed by the Rules applicable to the client-lawyer relationship.

[5] Information about a lawyer?s or judge?s misconduct or fitness may be received by a lawyer in the course of that lawyer?s participation in the Maine Assistance Program for Lawyers or an equivalent peer assistance program approved by a state?s highest court. The Rule creating the Maine Assistance Program for Lawyers encourages lawyers and judges to seek treatment through such a program. Conversely, without such an exception, lawyers and judges may hesitate to seek assistance from these programs, which may then result in additional harm to their professional careers and additional injury to the welfare of clients and the public. These Rules do not otherwise address the confidentiality of information received by a lawyer or judge participating in the Maine Assistance Program for Lawyers or an equivalent peer assistance program approved by a state?s highest court; such an obligation, however, may be imposed by the rules of such program or by other law.

REPORTER?S NOTES:

Model Rule 8.3 (2002) is substantively equivalent to M. Bar R. 3.2(e) and recognizes the obligations stated in the attorney?s oath, 4 M.R.S. § 806.

The Task Force recommended a specific reference to the Maine Assistance Program for Lawyers, as well as a recognition of equivalent programs in other states. In 2002, the Maine Supreme Judicial Court created by Rule the Maine Assistance Program for Lawyers (MAP). MAP was designed to address, on a confidential basis, the issue of lawyer or judge impairment from the effects of chemical dependency or mental conditions that result from disease, disorder, trauma or other infirmity that impairs the ability of a lawyer or judge to practice or serve. The Task Force recognized the importance of encouraging the immediate and continuing help to lawyers and judges who suffer from such impairment.

Finally, for the reasons set forth in the Reporter?s Notes to Rule 8.1, the Task Force recommended the use of the term ?misconduct,? rather than the 2002 Model Rule use of the term ?offense.? With the noted modifications, the Task Force recommended adoption of Model Rule 8.3 (2002) as written.

FOOTNOTES

[6] In 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, the Maine Assistance Program for Lawyers.

[7] In Maine, the appropriate professional authority will be the Committee on Judicial Responsibility and Disability, or, in certain circumstances, as described in the Maine Rules for Maine Assitance Program for Lawyers, the Maine Assistance Program for Lawyers.