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New York State Bar Association
Committee on Professional Ethics
Opinion #822 – 06/27/2008 - Clarifies: N.Y. State
531
Topic: Lawyer’s duty to
report violation of disciplinary rule
Digest: A lawyer who satisfies
the prerequisites to trigger mandatory reporting of a Disciplinary Rule
by another lawyer must report such conduct to an appropriate authority,
such as a tribunal (in a litigated matter) or to the appropriate
Grievance Committee. Filing a report with a lawyer assistance
program is not sufficient.
Code: DR 1-102(A), 1-103(A); EC
1-4
QUESTION
1. If
a lawyer has an obligation to report a violation of a Disciplinary Rule
by another lawyer, to whom must the lawyer report? Does filing a
report with a lawyer assistance program satisfy the reporting
requirement?
OPINION
2. In
certain circumstances a lawyer is required by the Code of Professional
Responsibility to report a violation of a Disciplinary Rule to the
appropriate authority. DR 1-103(A) provides:
A lawyer possessing knowledge, (1) not protected as a
confidence or secret, or (2) not gained in the lawyer’s capacity
as a member of a bona fide lawyer assistance or similar program or
committee, of a violation of DR 1-102 that raises a substantial question
as to another lawyer’s honesty, trustworthiness or fitness as a
lawyer shall report such knowledge to a tribunal or other authority
empowered to investigate or act upon such violation.
DR 1-102(A) provides:
A lawyer or law firm shall not: (1) Violate a
disciplinary rule. (2) Circumvent a Disciplinary Rule through the
actions of another. (3) Engage in illegal conduct that adversely
reflects on the lawyer’s honesty, trustworthiness or fitness as a
lawyer. (4) Engage in conduct involving dishonesty, fraud, deceit,
or misrepresentation. (5) Engage in conduct that is prejudicial to
the administration of justice. (6) Unlawfully discriminate in the
practice of law . . . .
3. The
New York State Bar Association has a Lawyer Assistance Program (LAP) to
deal with issues of alcohol abuse, substance abuse, and related mental
health issues. There are also 17 similar committees formed by
local bar associations. According to its statement of purpose, the
NYSBA LAP provides education and confidential assistance to lawyers,
judges, law school students, and immediate family members who are
affected by the problems of substance abuse, stress, or
depression. Its goal is to assist in the prevention and early
identification of problems that can affect professional conduct and
quality of life and to assist in arranging appropriate intervention
where such problems are identified. The services provided by the
NYSBA LAP, for example, include early identification of impairment;
motivating impaired attorneys to seek help; assessing and evaluating the
problem and developing an appropriate treatment plan; providing
information on training programs on alcoholism, drug abuse and stress
management; and referring impaired attorneys to community resources,
self-help groups, outpatient counseling, or detoxification and
rehabilitation services.[1] Lawyers who serve on
committees or programs have no obligation to report a violation of DR
1-102.[2]
4.
This opinion deals with the obligations of lawyers who do not serve on
such committees. In N.Y. State 635 (1992) we discussed the four
prerequisites that must be met before a lawyer has a reporting
obligation under DR 1-103(A). They are:
(1) The lawyer must possess a sufficient degree of
knowledge of ostensibly wrongful conduct; a mere suspicion of misconduct
is not sufficient.
(2) Any knowledge included in the lawyer’s
report must not be protected as a confidence or secret.
(3) The conduct in question must violate a
Disciplinary Rule.
(4) The violation must raise a substantial question as
to the lawyer’s honesty, trustworthiness or fitness.
For purposes of this opinion we assume that a lawyer
has satisfied all four tests; that is, the lawyer has a sufficient
degree of knowledge of a violation of a Disciplinary Rule by another
lawyer that raises a question about the other lawyer’s honesty,
trustworthiness or fitness and that knowledge is neither a confidence or
secret. Thus, the lawyer has a mandatory reporting obligation
under DR 1-103(A). The question this opinion addresses is to whom
the lawyer must report.
5. DR
1-103(A) requires a lawyer to report the knowledge of a violation
“to a tribunal or other authority empowered to investigate or act
upon such violation.” The inquirer asks whether reporting to
an LAP would satisfy that obligation. In our opinion, while
lawyers are to be encouraged to refer to an LAP lawyers who are abusing
alcohol or other substances or who face mental health issues, such a
referral would not satisfy the ethical reporting requirement.[3]
6. DR
1-103 requires reporting to a tribunal or other authority empowered to
investigate or act upon such violation. Although the Code does not
further specify to whom reporting is required, the phrase
“investigate or act” suggests that the
“authority” must be a court of competent jurisdiction or a
body having enforceable subpoena powers. Thus, a violation
in the course of litigation could be reported to the tribunal before
which the action is pending. In both a litigation and a
non-litigation context, the report could be filed with a grievance or
disciplinary committee operating under the powers granted to them by the
Appellate Division of the State Supreme Court pursuant to Section 90 of
the Judiciary Law and court rules.[4] The report could be
filed with the grievance committee in the Appellate Department in which
litigation is pending or with the grievance committee in the Department
where the lawyer is admitted or where the prohibited conduct
occurred.
7. The
report need not be made immediately or without some reasonable effort at
remediation, particularly where the consequences of reporting the
violation may be more harmful to the lawyer’s client than some
alternative course of action.[5] Once a report has
been made to an appropriate authority, notwithstanding the existence of
other authorities to which the report could have been made, the
reporting lawyer’s obligation under the Code will be deemed
satisfied.[6]
8. In
N.Y. State 531 (1981), the Committee, in holding that members of an LAP
may ethically refrain from reporting professional misconduct, noted that
the LAP “committee of the bar stands in a position analogous to
that of ‘a tribunal or other authority empowered to investigate or
act.’” In this opinion we clarify that an LAP is not
an appropriate authority to which misconduct can be reported. In
contrast to a tribunal or grievance committee, an LAP has no formal
powers. LAP services are voluntary. Although an LAP may seek
to assist a lawyer in need of assistance, the lawyer does not need to
respond and may refuse the assistance of the LAP. Furthermore,
without the assistance of the affected lawyer, the LAP has no power to
investigate whether the impairment has resulted in a violation of a
Disciplinary Rule.
9. The
purpose of the reporting requirement is to assist courts, disciplinary
agencies and other authorities in policing members of the bar.[7] The focus of an LAP is on assisting in the
lawyer’s recovery process, not on any code violations that may
have resulted from the lawyer’s impairment. Disciplining a
lawyer for a Code violation may be at odds with the recovery
process. The fact that a lawyer’s impairment has resulted in
a violation of the profession’s disciplinary rules may be a lever
to convince the lawyer that he or she needs help. The process of
obtaining that help, however, will not satisfy the profession’s
obligation to regulate itself.
CONCLUSION
10. A lawyer who
is required under DR 1-103(A) to report knowledge of misconduct
“that raises a substantial question as to another lawyer’s
honesty, trustworthiness or fitness as a lawyer” may report that
knowledge to those agencies described above. Reporting the
lawyer’s conduct to a lawyer assistance program, while salutary,
does not satisfy the lawyer’s ethical reporting
requirement.
(4-08)
[1]
See
http://www.nysba.org/Content/NavigationMenu/ForAttorneys
/LawyerAssistanceProgramLAP /
Lawyer_Assistance_Pr.htm.
[2]
DR 1-103(A); see also
Judiciary Law § 499 (treating the confidential information provided
to lawyers on such committees as privileged).
[3]
We note that lawyers may refer other lawyers to an LAP in situations
where the alcohol or substance abuse or mental health issue has not
resulted in any violation of a Disciplinary Rule. A lawyer in such a
situation may not be so impaired that the lawyer’s representation
of clients is affected. For example, the lawyer may suffer from
stress and depression and need assistance but still be able to perform
legal work competently. See
generally ABA Formal Op. 03-429 (obligations with respect to
mentally impaired lawyer within a law firm); ABA Formal Op. 03-431
(lawyer’s duty to report rule violations by another lawyer who may
suffer from disability or impairment).
[4]
See, e.g., Nassau County
98-12 (if reporting is required, lawyer can report to the court or
to the grievance committee); N.Y. City 1995-5 (misconduct should be
reported to the appropriate disciplinary or grievance committee).
Cf. People v. Romero, 91 N.Y.2d 750, 698
N.E.2d 424, 675 N.Y.S.2d 588 (1998) (holding that N.Y. Jud. Law §
476-a(1) authorized the attorney general to bring a civil action for
unauthorized practice of law).
[5]
See, e.g., U.S. v. Cantor, 897 F.
Supp. 110 (S.D.N.Y. 1995) (“DR 1-103 must be read to require
reporting . . . within a reasonable time under the
circumstances”); N.Y. City 1990-3 (“While it may be permissible in
certain limited circumstances to postpone reporting for a brief period
of time, we reiterate our caution . . . that ‘once a lawyer
decides that he or she must disclose under DR 1-103(A), any substantial
delay in reporting would be improper.’”); N.Y. City 81-40.
Cf. U.S. v. Turkish, 470
F. Supp. 903, 909 n.7 (S.D.N.Y. 1978) (prosecutor who believes defense
counsel’s representation of multiple clients is a conflict problem could
“in most instances” satisfy DR 1-103(A) by raising the
problem directly with the attorney, and then, if necessary, the clients
themselves).
[6]
See Nassau County 88–10 (“The code
requires that the matter be brought to the attention of the grievance
committee, but does not require that it also be reported to the district
attorney or other appropriate prosecuting agency having jurisdiction of
such matters”).
[7]
EC 1-4
(“The integrity of the profession can be maintained only if
conduct of lawyers in violation of the Disciplinary Rules is brought to
the attention of the proper officials”); see also Restatement Third, The Law Governing
Lawyers § 5 cmt i (collecting authorities regarding the reporting
obligation); Matter of
Wieder, 80 N.Y.2d 628, 636, 609 N.E.2d 105, 108, 593 N.Y.S.2d 752,
755 (1992) (noting that the legal profession relies upon lawyers to
report appropriate cases to protect the public and the integrity of the
Bar).
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