Must a lawyer report opposing counsel's improper contact with the client's employees, including an alleged misidentification, under Rule 8.3?

Plain-English summary

Opposing counsel (Lawyer B) contacted two of the defendant's employees, an upper-level employee and then a lower-level one. The lower-level employee claimed B intentionally misidentified himself, but had given various versions of the contact and was likely not credible. Lawyer A, representing the defendant, reasonably believed B was telling the truth about his identification and had not thought he was violating Rule 4.2 with the second contact. Lawyer A asked whether Rule 8.3 required reporting either the contact with the lower-level employee or the alleged misidentification.

The committee explained that Rule 8.3(a) keys on the reporting lawyer's knowledge of a violation that raises a substantial question as to honesty, trustworthiness, or fitness, not on whether the violator realized the conduct was improper. The reporting obligation is limited to offenses a self-regulating profession must vigorously prevent, and the seriousness of the offense matters. The committee noted that the acknowledged earlier contact supported reporting the second contact, and that, per the Comment, an apparently isolated violation may signal a pattern that only a disciplinary investigation can uncover, so a lawyer should leave that determination to investigators rather than make it himself.

On the alleged misidentification, the committee reasoned that if Lawyer A truly believed Lawyer B purposely and knowingly misidentified himself, that would raise a substantial question as to honesty and fitness and would require a report. But because the only witness gave varying accounts and Lawyer A reasonably believed the witness was not telling the truth, Lawyer A lacked firm knowledge that a violation occurred, so the rule did not require reporting the alleged misidentification. The committee stressed that the reporting lawyer must always exercise a measure of judgment.

Currency note

This opinion was issued in 1995, 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 Treat this page as historical context, not current guidance.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: Does the reporting duty depend on whether the other lawyer knew the conduct was wrong?

A: The committee concluded no. Rule 8.3(a) keys on the reporting lawyer's knowledge of the violation, not the violator's awareness of the Rules.

Q: Must a lawyer report a contact that may have violated Rule 4.2?

A: The committee indicated the acknowledged earlier contact supported reporting the second contact, and a lawyer should leave any pattern determination to a disciplinary investigation.

Q: What about an alleged misidentification the lawyer doubts occurred?

A: The committee concluded that because the witness gave conflicting accounts and the reporting lawyer lacked firm knowledge, the rule did not require reporting it.

Background and rules framework

The opinion applied Rule 8.3(a) (reporting misconduct that raises a substantial question of fitness, keyed to the reporting lawyer's knowledge) in the context of an alleged Rule 4.2 violation (communication with a represented person's employees), each corresponding to the like-numbered Model Rule.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 8.3(a) / Model Rule 8.3: reporting professional misconduct; firm-knowledge requirement.
• South Carolina RPC 4.2 / Model Rule 4.2: communication with a represented person.

See also

• SC Bar Ethics Op. 95-13: Reporting Misconduct From Hearsay
• SC Bar Ethics Op. 95-12: Reporting a Lawyer's Tax Liens

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-95-07/

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 95-07

Lawyer B has made contact with employees of defendant. The first contact was with an upper echelon employee. The second contact was with a lower level employee. The lower level employee claims that Lawyer B intentionally misidentified himself. However, this employee has given various versions of the contact and is likely not credible. Lawyer A, representing the defendant, reasonably believes that Lawyer B is telling the truth as far as his identification to the employee. Lawyer A also believes that Lawyer B did not think that he was violating Rule 4.2 as to making the second contact.

Questions:

1. Does Rule 8.3 require that Lawyer A report unethical conduct as far as Lawyer B's contact of the lower level employee?
2. Does Lawyer A have an ethical obligation to report Lawyer B for having misidentified himself?

Summary:
If Lawyer A has knowledge that Lawyer B committed a violation of the Rules of Professional Conduct and such conduct raises a substantial question as to Lawyer B's honesty, trustworthiness or fitness as an attorney, Lawyer A is required to report the violation. Under these circumstances, the report should be made regardless of whether Lawyer A realized the conduct was unethical. The reporting lawyer should always use a measure of judgment. If the lawyer has reason to believe that a violation was not truly committed, although alleged, the lawyer would not be required to report the violation.

Opinion:
Rule 8.3 (a) of the Rules of Professional Conduct addresses the reporting of professional misconduct. The Rule states "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." The Rule specifies the reporting lawyer's knowledge, not whether the perpetrator realized there was an impropriety. The Comment to the Rule states that disciplinary investigations are to be initiated when a lawyer knows of a violation of the Rules. The Comment says that self-regulation of the legal profession requires such action. The issue then is the reporting lawyer's knowledge of the violation, not the violator's awareness of the Rules. The reporting lawyer must also consider whether the conduct has raised a substantial question as to the violator's honesty, trustworthiness or fitness as a lawyer. A lawyer must use a measure of judgment before making a report under his rule. The Comment to the Rule points out that in the past, many jurisdictions, by virtue of requiring reporting of every violation of the rules, have made a failure to report violations in itself a professional offense. Such requirement has proved to be unenforceable. The Rule states "This rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent." The seriousness of the offense is a point to be considered.

The inquirer has described a previous contact by Lawyer B which seems to be a clear violation. It is not asked whether Lawyer A should report that contact. The fact that such contact is acknowledged supports a reporting of the second contact by Lawyer B.

The Comment states "An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover." This explanation directs those in the position of Lawyer A to leave it to a disciplinary investigation to determine whether there is a pattern of misconduct and not to make such a determination themselves. Certainly then, if a lawyer is aware of multiple incidents, there would be more reason for making a report.

The second question involves an alleged intentional misidentification by a lawyer. If Lawyer A truly believes that lawyer B purposely and knowingly took such an action, Lawyer A would be required to inform the appropriate professional authority. Such action by Lawyer B does raise a substantial question as to his honesty, trustworthiness and fitness as a lawyer.

On the other hand, the facts of this particular situation are that the witness has given various versions of the disputed activity. Further, Lawyer A reasonably believes that the witness is not telling the truth. Given these circumstances, Lawyer A must use a degree of judgment. Since Lawyer A does not have firm knowledge that a violation was committed, the Rule would not require him to report this alleged misidentification.