NEW YORK STATE BAR ASSOCIATIONCommittee on
Opinion #531 - 04/28/1981 (9-81)
Topic: Duty to report violation of Disciplinary Rule; communication
to member of rehabilitative committee
Digest: Member of rehabilitative committee not obligated to report
evidence of professional misconduct obtained during course of
Code: Canons 1 and 4; EC 1-1, 1-4, 4-4; DR 1-102, 1-103(A), 4-101(A),
(B) and (C)
A bar association has established a committee to interview and
counsel lawyers who suffer from drug or alcohol abuse with a view toward
their rehabilitation. In the course of such counseling, the lawyers
divulge to committee members information establishing instances of their
professional misconduct stemming from such abuse.
Under the circumstances stated, are the committee members obligated
to report such information to a tribunal or other authority empowered to
investigate or act upon the misconduct?
DR 1-102 prohibits lawyers from engaging in certain conduct, while DR
1-103(A) provides that a lawyer possessing "unprivileged knowledge" of
professional misconduct by another lawyer, within the meaning of DR
1-102, must report that knowledge to a "tribunal or other authority
empowered to investigate or act" upon such misconduct. That duty of
disclosure is founded upon the first pronouncement of the Code of
Professional Responsibility: "A lawyer should assist in
maintaining the integrity and competence of the legal profession." Canon
1; cf., EC 1-1 with EC 1-4.
Consistent with the requirements of Canon 1 and in recognition of the
responsibility which it imposes, the organized bar has established the
rehabilitative committees described in the question posed. The
relationship between committee members and those they counsel is built
on confidence and trust, much as the relationship between a psychiatrist
and his patient. That trust would be destroyed and the counseling effort
seriously undermined if committee members were required to report to
disciplinary authorities evidence of misconduct disclosed to them by
those they seek to counsel.
The reference in DR 1-103(A) to "unprivileged knowledge" leads us to
DR 4-101, which deals with the preservation of confidences and secrets
of a client. It defines a "confidence" as information protected by the
attorney-client privilege under applicable law, and a "secret" as other
information gained in the professional relationship that the client has
requested be held inviolate or the disclosure of which would be
embarrassing or would likely be detrimental to the client. DR 4-101(A).
Neither confidences nor secrets of a client may be revealed by a lawyer
except in rare, specified circumstances. Cf., DR 4-101(B) with DR
It has long been recognized that a lawyer's duty to protect his
client's confidential communications is considerably broader than the
evidentiary privilege. EC 4-4. Indeed, in certain ethical contexts (most
notably that of avoiding conflicting interests), it makes little
difference whether the lawyer purports to act in a professional
capacity. See, e.g., NCK Organization Ltd. v. Bergman, 542 F. 2d 128,
133 (2d Cir. 1976) and Cord v. Smith, 338 F. 2d 516, 524 (9th Cir.
1964). On the basis of such authorities, it could well be argued that
the communications between the committee members and those they counsel
are entitled to the protection of Canon 4. The committee members, after
all, are lawyers, acting as members of the organized bar.
In our opinion, however, such a construction would force Canon 4 into
an area where it was never meant to apply. All of the foregoing
authorities dealt with situations in which the lawyer was acting as a
lawyer or was engaged in activities involving a blend of legal and
law-related activities. Those who seek counseling are not seeking legal
advice from the committee members; they seek understanding and trust and
support, but not legal services. The "professional relationship" to
which DR 4-101 refers is the relationship between an attorney and his
client. A communication is not protected from disclosure by the
strictures of Canon 4 if it comes to the attorney while he is acting in
another capacity. ABA Inf. 309 (1960).
But, the same regard for the elemental purposes of the Code restrains
us from attempting to force DR 1-103(A) into an area where it was never
intended to apply. It would thwart the clear intent of the rule to use
it to undermine and perhaps destroy a thoughtful, well-conceived effort
of the organized bar "to maintain the integrity and improve the
competence of the bar to meet the highest standards." EC 1-1; cf., N.Y.
State 456 (1977). Within the broad and evident purpose of DR 1-103(A), a
rehabilitative committee of the bar stands in a position analogous to
that of "a tribunal or other authority empowered to investigate or act"
upon information relating to professional misconduct. Since the
information has already been imparted to those who may act upon it, and
given both the institutional character and public concerns of such
committees, it would also seem rather anomalous to require that their
members be under a duty to report what they have learned to another
body. Thus, despite the literal wording of the rule, we are of the
opinion that committee members may with ethical propriety refrain from
reporting what they have learned of professional misconduct in the
For the reasons stated, the question posed is answered in the