When a new client describes possible misconduct by their prior lawyer, must the lawyer report it, and will the committee judge the prior lawyer's past conduct?

Plain-English summary

An injured worker, originally contacted at home by Attorney B (who was brought there by an officer of the employer and who also represented the employer), retained B on a contingency basis. The worker alleged B delayed a workers' compensation hearing so that a third party, rather than the employer, would bear liability; nearly two years on, no hearing had occurred and no settlement reached. The worker then sought advice from Attorney X, who asked whether B's conduct violated the Rules and what X should do.

The committee said it could not address whether B's past conduct violated the Rules, because the Ethics Advisory Committee provides opinions on prospective conduct only and does not sit in judgment on the past conduct of the inquiring attorney or any other attorney. As to what X should do, the committee pointed to Rule 8.3(a): a lawyer who knows that another lawyer has committed a violation raising a substantial question as to that lawyer's honesty, trustworthiness, or fitness must inform the appropriate professional authority. The committee said X may wish to review the Rules closely before forming an opinion on whether B violated them, and if X concludes B did, the duty to report arises. The committee added that X might gather more information from the client or the other attorney, or discuss aspects of the Rules with the client and let the client decide whether to raise the matter with B or report it.

Currency note

This opinion was issued in 1990, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Will the ethics committee tell me whether another lawyer's past conduct was improper?

A: No. The committee said it opines only on prospective conduct and does not sit in judgment on the past conduct of the inquiring attorney or any other attorney.

Q: When must a lawyer report another lawyer's misconduct?

A: The committee said Rule 8.3(a) requires reporting when the lawyer knows of a violation that raises a substantial question as to the other lawyer's honesty, trustworthiness, or fitness as a lawyer.

Q: What can a lawyer do before deciding to report?

A: The committee said the lawyer may review the Rules, gather more information from the client or the other attorney, or discuss the Rules with the client and let the client decide whether to raise or report the matter.

Background and rules framework

The opinion applies Rule 8.3(a) (reporting professional misconduct), corresponding to Model Rule 8.3, and explains the committee's own jurisdictional limit to prospective conduct. The reporting duty turns on knowledge of a violation that raises a substantial question about the other lawyer's honesty, trustworthiness, or fitness.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 8.3(a) / Model Rule 8.3: a lawyer who knows another lawyer committed a violation raising a substantial question as to honesty, trustworthiness, or fitness shall inform the appropriate professional authority.

See also

• SC Bar Ethics Op. 05-03: Reporting a Lawyer's Lie
• SC Bar Ethics Op. 02-15: Duty to Report and Rule 1.6
• SC Bar Ethics Op. 13-01: Reporting an Altered Document

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-90-38/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 90-38

Client C.D.S. (employee) is employed by C.C. (employer) and is injured on the job by a machine which is maintained, under contract, by H (maintenance company). H's maintenance of the machine include the improper removal of a safety switch without the knowledge of C.C. or C.D.S. C.D.S. is seriously injured. Attorney B contacts C.D.S in C.D.S.'s home, when an officer of C.C. brings B there; and B takes C.D. as a client on a contingency fee basis. Attorney B is also C.C.'s attorney.

A Workers Compensation hearing is scheduled, but attorney B delays this hearing so that, hopefully, H, alone (and not C.C.) will be liable (as third party who caused the injury). This hearing has never taken place (after more than six months). Settlement with H, has not been reached (after nearly two years). C.D.S. has now come to Attorney X for advice.

Questions:
Is the conduct of Attorney B any violation of the Rules of Professional Conduct? If these facts should be taken as improper ethical conduct, what action should be taken under the Rules by Attorney X?

Summary:
Question as to Attorney B's conduct are not prospective in nature and are consequently not appropriate for comment by the committee.

If Attorney X's believes that Attorney B has committed a violation of the Rules of Professional Conduct that raises a substantial question as to his honesty, trustworthiness, or fitness as a lawyer, Rule 8.3 (a) requires that Attorney X inform the appropriate professional authority.

Opinion:
The Ethics Advisory Committee exists to provide attorneys with opinions as to prospective conduct only. The committee does not sit in judgment on past conduct of the inquiring attorney or any other attorney.

Rule 8.3 (a) provides that a lawyer having knowledge 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. Attorney X may wish to review the Rules of Professional Conduct closely before forming an opinion as to whether Attorney B has violated any portion of the rules. If Attorney X concludes that he has, there would then be a duty to inform the appropriate professional authority.

After reviewing the rules, Attorney X may wish to secure further information from your client or from the other attorney. In the alternative, Attorney X may prefer to discuss aspects of the rules with the client and allow the client to determine whether to discuss the actions of Attorney B with that attorney or to report them to the appropriate professional authority.