Office of Chief Disciplinary Counsel


OCDC Article: Ethics: Reporting Lawyer Misconduct to OCDC

Published: May 1, 2018

[1]     

Knowledge of misconduct.  The mandatory reporting rule is triggered when a lawyer “knows” another lawyer has violated the rules.  The knowledge necessary to mandate a report is “actual.”  Per the Rule 4-1.1(f), “‘knows’ denotes actual knowledge of the fact in question;” although, “[a] person’s knowledge may be inferred from circumstances.” 

[2]  Lawyers must report “a violation … that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects….”  Mandatory reporting is limited to those serious rule violations.  Reports of other rule violations are discretionary.  

[3] 

[5]   

[6]

Rule violations combined with substance abuse or mental health issues also may implicate a fitness to practice inquiry.  When in doubt, lawyers should contact the Legal Ethics Counsel’s office to request an informal advisory opinion. 

[7]

[8]  If, therefore, the report would cause the reporting lawyer to violate Rule 4-1.6, the report is not required and the duty of client confidentiality prevails.  Under the Rule 4-1.4 duty to communicate, lawyers should inform their clients that they have the option to file a complaint with OCDC.

[9]     With such a broad starting point, it is generally best to obtain the client’s consent if the report of misconduct would disclose information related in any way to the lawyer’s representation of that client. 

[11]  Lawyers should document their discussions with clients where client confidentiality trumps an otherwise mandatory reporting obligation.

[13]  This exception encourages lawyers to seek treatment through available assistance programs. 

 

[14]

Additionally, the Rule does not include an exception that allows lawyers to rely on someone else to make the report.  Even if lawyers believe someone else reported the misconduct, it is better to confirm that report in writing.

When reporting alleged misconduct to OCDC, lawyers may choose to be a “complainant” or a “reporter.”  With a report, OCDC follows up on its own investigation and the complainant is identified as “OCDC.”  Reporters are not notified of the result of the investigation.

If the reporting lawyer submits the information as a “complainant,” he or she is provided notice of the result of the investigation and is immediately identified to the respondent attorney at the time the investigation is opened.  In both situations, the information submitted may be provided to the respondent attorney during the investigation.

OCDC does accept and investigate complaints made anonymously if they provide sufficient information.  If a lawyer has a duty to report misconduct, he or she should keep in mind that they may need to prove they made the required report.  A weak report may not constitute a report at all.  Any report must be sufficiently detailed so that an adequate investigation can be completed.  A vague or otherwise inadequate report might not result in a meaningful investigation and, if the report was made anonymously, OCDC will not have a complainant or reporter with whom to follow up. 

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[22]  Reporting serious misconduct serves to protect the public and the reputation of the legal profession. 

 

[1] Rule 4-8.3(a).

[2] Rule 4-8.3, cmt. [3].

 

[3] Mo. Informal Advisory Op. 2003-89. 

 

[4] Pursuant to Rule 5.30, The Legal Ethics Counsel issues opinions to attorneys for their own guidance involving an existing set of facts.  The summaries provided by The Legal Ethics Counsel are to be used only for general guidance and are not binding.

[5] Mo. Informal Advisory Op. 2005-0051.

[6] Id.

[7] Rule 4-8.3, cmt. [3].

 

[8] Rule 4-8.3(c).

[9] Rule 4-1.6(a).

[10] Rule 4-8.3, cmt. [2].

[11] Rules 4-1.6(a) and 4-1.1(e).

[12] Although some states rules do include such an exception, Missouri’s Rule 4-1.6 does not include an exception to the duty to maintain confidentiality for reports to OCDC. 

[13] Rule 4-8.3(c).

also Skolnick v. Altheimer and Gray, 730 N.E.2d 4, 15 (Ill. 2000) (Attorney was required to report misconduct to disciplinary counsel.  “Her duty to report cannot be discharged by reporting the suspected misconduct to the trial court.”).

e.g., S.C. Bar Ethics Advisory Comm., Op. 16-04, 07/18/2016 (A lawyer may wait until the conclusion of a legal matter if he or she “determines immediate reporting may hurt the client.  However, the misconduct should be reported ‘promptly’ at the conclusion of the litigation or appeal.”); and In re Riehlmann, 891 So.2d 1239, 1247 (La. 2005) (“The need for prompt reporting flows from the need to safeguard the public and the profession against future wrongdoing by the offending lawyer. The purpose is not served unless Rule 8.3(a) is read to require timely reporting under the circumstances presented.”).

See Douglas R. Richmond, Saber-Rattling and the Sound of Professional Responsibility, 34 Am. J. Trial Advoc. 27, 29-39 (2010).

also In re Caranchini, 956 S.W.2d 910, 916 (Mo. banc 1997) (the respondent violated Rule 4-3.1 for continuing to pursue a slander claim after it became apparent that the facts did not support it).

also In re Krigel, 480 S.W.3d 294, 299-300 (Mo. banc 2016). 

See In re Krigel, 480 S.W.3d at 300 (respondent’s conduct “actively concealing factual information … so that his client’s position would prevail” violated Rule 4-4.4(a)).

[20] In re Eisenstein, 485 S.W.3d 759, 763 (Mo. banc 2016).

[21] Id.

[22] Missouri Rules of Professional Conduct, Preamble:  A Lawyer’s Responsibilities, ¶ [11].

 





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