Must a South Carolina lawyer report another lawyer's misconduct learned only secondhand from a friend or former client?

Plain-English summary

Over lunch, a casual friend and past client described in detail a transaction in which another attorney allegedly engaged in conduct that probably would have to be reported. The inquiring attorney had no firsthand knowledge of the transaction and had no prior reason to think the other attorney untrustworthy. He asked whether he had to report, and whether various alternatives (telling the friend how to file, or mailing the grievance for him) would satisfy his obligations.

The committee explained that Rule 8.3(a) imposes a mandatory ("shall") duty to report another lawyer's violation that raises a substantial question as to honesty, trustworthiness, or fitness, and that failing to report can itself violate Rule 8.4(a). It noted (per Opinion 89-04 and out-of-state authority including In re Himmel) that the duty is not relieved because the client or another lawyer might also report. But the duty is limited to "knowledge," which the Preamble defines as actual knowledge; hearsay is not knowledge, and the committee's prior Opinion 95-07 required "firm knowledge." Because the inquiring attorney had only secondhand information from the friend, he had no Rule 8.3(a) duty to report.

The committee added a second, independent limit: Rule 8.3(c) does not require disclosing information protected by Rule 1.6. If an attorney-client relationship existed between the inquirer and the friend (which does not require a formal agreement, and a former client who sought advice may still be protected), the information could be confidential and reportable only with the friend's consent, which lawyers should encourage clients to give. Assuming for argument a duty did exist, the committee concluded that merely giving the friend the Board's address and filing instructions, even with the lawyer personally mailing the grievance, would not satisfy Rule 8.3(a), which requires the lawyer himself to report. The committee declined to address questions about filing in the friend's name (matters under Rule 413) but cautioned that filing an unjustified grievance without actual knowledge could run afoul of Rule 413's section 11(C).

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: Must a lawyer report misconduct described to them secondhand?

A: The committee concluded no. Rule 8.3's duty requires actual knowledge, and hearsay from a friend or client does not qualify.

Q: Does it matter if the source is a client or former client?

A: Yes. The committee noted that if the source qualifies as a client, Rule 8.3(c) and Rule 1.6 may protect the information, making it reportable only with the client's consent.

Q: Is referring the source to the grievance board enough if a duty did apply?

A: The committee concluded no. Rule 8.3(a) requires the lawyer himself to report; giving the source filing instructions, even mailing the grievance, would not satisfy the duty.

Background and rules framework

The opinion applied Rule 8.3 (reporting professional misconduct, including the actual-knowledge requirement and the Rule 8.3(c) confidentiality exception), Rule 8.4(a) (misconduct, including violating the Rules), and Rule 1.6 (confidentiality), each corresponding to the like-numbered Model Rule, and relied on the Preamble's definition of "knowledge."

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 8.3(a), (c) / Model Rule 8.3: reporting misconduct; actual knowledge; confidentiality exception.
• South Carolina RPC 8.4(a) / Model Rule 8.4: misconduct.
• South Carolina RPC 1.6 / Model Rule 1.6: confidentiality of information.

Cases:

• In re Himmel, 533 N.E.2d 790 (Ill. 1989): a lawyer may not circumvent the reporting duty at a client's request.
• Marshall v. Marshall, 320 S.E.2d 44 (S.C. Ct. App. 1984): definition of a client.

Other opinions cited:

• SC Bar Adv. Ops. 89-04, 95-07, 91-03; ABA Formal Opinion 94-383; Arizona Op. 94-12; N.M. Op. 1988-8.

See also

• SC Bar Ethics Op. 95-12: Reporting a Lawyer's Tax Liens
• SC Bar Ethics Op. 95-07: Reporting and Firm Knowledge

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-95-13/

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 95-13

Attorney A was invited by a casual friend (F) for whom he has done some work in the past to have lunch. During lunch F indicated to attorney A that the primary purpose of the invitation was to seek his advice concerning a matter involving another attorney (B). F then went on to explain in detail a transaction in which he was involved with other parties wherein attorney B was handling the legal aspects. As related by F to attorney A, attorney B during his representation of the parties in the transaction engaged in unethical conduct which probably would be required to be reported under the South Carolina Rules of Professional Conduct.

F was known to attorney A to be honest, and he was sufficiently intelligent and sophisticated in the type of transaction involved to be able to accurately comprehend and relate the details of the transaction and the conduct involved.

Attorney B is a prominent attorney who has practiced law for many years with whom attorney A deals with on a professional basis in his law practice. Attorney A has no independent first hand personal knowledge of what the transaction involved, and prior to the lunch meeting with F was unaware of any reason to consider attorney B untrustworthy, dishonest, or otherwise unethical.

Questions:

1. Does Attorney A have an obligation to report this information to the Board of Commissioners on Grievances and Discipline?
2. Would attorney A satisfy his obligations under the Rules of Professional Conduct by apprising F of the address of the Board of Commissioners on Grievances and Discipline and instructing him as to how to file a formal grievance?
3. Would attorney A satisfy his obligations under the Rules of Professional Conduct by apprising F of the address of the Board of Commissioners on Grievances and Discipline and instructing him how to file a formal grievance and by taking personal responsibility for the actual delivery or mailing of the grievance to the Board of Commissioners on Grievances and Discipline?
4. If F indicates that he is not inclined to file the grievance but has no objection to attorney A filing one on his behalf, may attorney A file the grievance in the name of F (with the permission of F) without disclosing his own name?
5. If F specifically asked attorney A to file the grievance without using F's name, is attorney A required to do so in his own name?

Summary:
Attorney A is not obligated to report the alleged misconduct of Attorney B. Although a lawyer has a general ethical duty to report another attorney's misconduct, the attorney should have actual knowledge of the unethical conduct rather than mere hearsay and must not divulge information protected by the attorney-client privilege. The duty to report is further limited to conduct raising a "substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." Misconduct failing to raise such a substantial question need not be reported. Also, this duty may not be relieved even if a client has already personally reported the misconduct.

Opinion:
1) There is a general duty to report the misconduct of a fellow attorney under Rule 8.3(a) of the South Carolina Rules of Professional Conduct. Rule 8.3(a), as modeled after the Model Rules of Professional Conduct, provides as follows: "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 states that the attorney "shall" not "may" inform, thus making the Rule imperative rather than discretionary. South Carolina Rules, Preamble: Scope.

Failure to report constitutes a violation of Rule 8.4(a) which renders any violation or attempted violation of the Rules as professional misconduct. The attorney would then be subject to disciplinary proceedings.

The Committee also notes that this duty to report is not relinquished merely because the attorney's client or another lawyer may also file a grievance. In considering South Carolina's former rule DR 1-103(A), also requiring the reporting of misconduct, this Committee decided in Opinion 89-04 that if a client personally reports to the Grievance Committee, the lawyer still has a duty to report as well.

Other states substantially adopting the Model Rules of Professional Conduct have similarly opined that this duty still exists even when the client directs the lawyer not to file a grievance. Arizona Ethics Opinion 94-12 (finding that absent any confidentiality conflicts, an attorney is required to report regardless of the client's contrary direction). See also, In re Himmel, 533 N.E.2d 790 (Ill. 1989)("A lawyer may not choose to circumvent the rules by simply asserting that his client asked him not to do it." Here confidentiality of information was not an issue since attorney-client privilege does not extend to information given in presence of third parties-namely, client's mother and fiance).

Despite this general duty to report, other factors must be considered given the fact pattern at hand. The duty is limited to "knowledge" which the Preamble to the South Carolina Rules of Professional Conduct defines as "actual knowledge of the fact in question." Hearsay, thus, is not considered knowledge under Rule 8.3. In their formal opinion 94-383, the ABA also stated that the duty to report is limited to actual knowledge. In SC Bar Advisory Opinion 95-07, this Committee decided that Rule 8.3 does not require reporting absent "firm knowledge." New Mexico, in adopting Model Rule 8.3, applies a substantial basis test for knowledge where "mere suspicion" or "probable cause" is insufficient. N.M. Ethics Opinion 1988-8.

Attorney A's knowledge of Attorney B's misconduct includes only second hand information obtained through the words of F.

As such, Attorney A does not have an obligation to report the information under Rule 8.3(a).

Rule 8.3(c) further limits this duty to report by providing that "[t]his Rule does not require disclosure of information otherwise protected by Rule 1.6." Rule 1.6 protects information "relating to representation of a client unless the client consents." An attorney, then, is unable absent client consent to report misconduct if the information in question is protected by the attorney-client privilege. Attorney A may be exempt from any reporting obligation, if it is found that an attorney-client relationship existed between himself and F at the time of the disclosure. In SC Bar Advisory Opinion 91-03, this Committee found that the attorney-client relationship does not depend on the existence of a formal agreement and further notes that depending on the nature of the prior relationship and the length of time since its termination, a former client may still be protected by the attorney-client privilege. The South Carolina Court of Appeals defines a client as someone who "seeks legal advice by communicating in confidence with an attorney for the purpose of obtaining such advice." Marshall v. Marshall, 320 S.E.2d 44 (S.C. Ct. App. 1984). As a former client who admittedly sought legal advice, F could be deemed a client under Rule 1.6 and as such F may have to consent in order for attorney A to reveal any confidential information. The comments to Rule 8.3 do add that lawyers should encourage their clients to consent.

See also, In re Ethics Advisory Panel Opinion, 627 A.2d 317 (R.I. 1993)(duty of confidentiality prohibits the attorney from reporting another without the client's consent).

Because the fact pattern explicitly stipulates that the conduct referred to "would probably be required to be reported," it is assumed that this conduct "raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer" under Rule 8.3(a).

It is the opinion of the South Carolina Bar Ethics Advisory Committee that attorney A would not have a duty to report due to the lack of actual knowledge of attorney B's conduct or due to questions of attorney-client confidentiality absent F's express consent. Assuming, however, that such an obligation did exist in this situation:

(2) Attorney A would not satisfy his obligations under Rule 8.3(a) by merely apprising F of the address of the Board of Commissioners on Grievances and Discipline and instructing him on the procedure for the filing of a formal complaint. The Rule mandates that the attorney himself report the misconduct. See South Carolina Bar Advisory Opinion 89-04; Arizona Ethics Opinion 94-12; In re Himmel, 533 N.E.2d 790 (1989).

(3) For the same reasons set forth above, it would also be insufficient for Attorney A to give F the Board's address and instruct him on grievance filing procedures as well as personally overseeing the delivery or mailing of the grievance.

(4) and (5) It is not within the scope of this Committee to comment on disciplinary proceedings under South Carolina Appellate Court Rule 413. The Committee, however, warns attorneys of section 11(C) of Rule 413 which provides:

Any person who files an unjustified Complaint or Grievance, or otherwise brings unjustified proceedings against an attorney alleging misconduct may, if such charges are found by the Court to be groundless, be enjoined from filing further Complaints, Grievances, or proceedings.

An attorney without actual knowledge of the facts may run afoul of this provision.