The legal profession is regulated by state bars. However, some of that regulation comes from lawyers themselves, who may be expected to self-report if they have violated the rules of professional conduct or to report if they know that other lawyers (whether colleagues or opposing counsel) have committed similar breaches.

A few states have adopted a permissive standard, whereby lawyers are encouraged to report misconduct but are not required to do so.

What are lawyers’ obligations when they observe incidents of misconduct by other attorneys? Even for jurisdictions where reporting is “mandatory,” there are a number of considerations that can impact whether reporting is actually required.

For example, even in a “mandatory” reporting jurisdiction, that obligation may be relieved in some states if reporting another lawyer would pose a risk to a client’s confidential or privileged information. And in permissive jurisdictions, the question of whether reporting is appropriate involves a number of considerations, dependent on the circumstances.

Below are some tips for identifying whether there is an obligation to report a lawyer’s misconduct and whether reporting should occur.

What Do the Rules Say?

American Bar Association Model Rule 8.3, adopted in most states, provides that a lawyer “who knows that another lawyer has committed 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 in other respects, shall inform the appropriate professional authority.”  This is considered a mandatory rule, subject to the limitations therein.

Georgia, which is a permissive jurisdiction, provides in Georgia Rule of Professional Conduct 8.3(a) that a lawyer in those circumstances “should inform the appropriate professional authority.”

Thus, in Georgia, the duty to report misconduct is not mandatory.

What About Mandatory Jurisdictions?

Model Rule 8.3(c) recognizes that the rule “does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.”

Thus, in states that have adopted the model rule as drafted, it is accepted that there may be circumstances where reporting is not required, even in a so-called mandatory reporting jurisdiction, if such disclosure would reveal client confidences or privileged information, where the information was learned through a lawyers assistance program, or (as recognized in the comments to the rule) where a lawyer learned of the misconduct because he or she was retained to represent the lawyer whose professional conduct is in question.

Some other states, however, require disclosure even where it would implicate confidential information. Thus, caution and a thoughtful approach is recommended.

Indeed, the comments to Model Rule 8.3 recognize that “[a] measure of judgment is, therefore, required in complying with the provisions of this Rule.” For instance, some mandatory reporting jurisdictions have made clear that reporting is not triggered unless the reporting lawyer “has a clear belief that misconduct has occurred, and possesses actual knowledge of the pertinent facts.”

D.C. Ethical Op. 246 (internal citation omitted). Thus, mere suspicion that another lawyer has engaged in misconduct may not rise to the level of reportable misconduct. And if disclosure of a lawyer’s misconduct would implicate a client’s confidential information, the disclosing lawyer can ask the client to consent to disclosure, as reflected in the comments to Model Rule 8.3.

Lawyers in these jurisdictions have also been advised that reporting is not to be used as a weapon or tactic because “accusing another lawyer of misconduct is a serious matter that should not be undertaken lightly,” according to South Carolina Bar Ethics Adv. Op. 02-13. And in California, which is the only state not to have adopted some version of Rule 8.3, filing a complaint with the State Bar while “knowing the report or complaint to be false and malicious” is a misdemeanor offense.

When Should You Report?

Even where reporting is not mandatory, it is encouraged where an attorney has observed misconduct by another lawyer. For instance, the comments to Georgia Rule of Professional Conduct 8.3 identify why such reporting is encouraged: “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.”  Notably, though, there is no disciplinary penalty in Georgia for a violation of Rule 8.3 (i.e., for an attorney’s failure to report misconduct when he or she “should” do so). The Georgia version of Rule 8.3 does not specifically note the risks of violating the duty to maintain confidences in Rule 1.6 in making a disclosure, but it is still a consideration.

Lawyers who have knowledge that could trigger a reporting obligation may consider discussing the issues with their firm’s in-house counsel, risk manager or other outside counsel. Regardless of whether the misconduct is discovered internally or elsewhere, counsel can help advise on the risks to the firm and to the client posed by reporting.

Where an opposing counsel appears to have engaged in misconduct, an outside view may help reveal whether the report could look punitive or appear to be an improper effort to impact ongoing litigation. And where the report relates to a lawyer’s partner or colleague, discussing the matter internally may help trigger any reporting obligations to a firm’s insurer—or to help ensure that the firm can ensure that its clients’ interests are being protected, notwithstanding the purported misconduct.

By considering the requirements of the jurisdiction and the interests of any involved clients, lawyers can determine whether and how to report misconduct by others.

Shari L. Klevens is a partner at Dentons and serves on the firm’s U.S. board of directors. She represents and advises lawyers and insurers on complex claims, is co-chair of Dentons’ global insurance sector team and is co-author of “California Legal Malpractice Law” (2014).

Alanna Clair is a partner at the firm and focuses on professional liability defense. 

Klevens and Clair are co-authors of “The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance.”