When a lawyer takes over another lawyer's client files, is there a confidential relationship between them, and must the new lawyer report ethical violations found in the files?
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This page answers the general question as of 1983. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Currency note
This opinion was issued in 1983, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. 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 Treat this page as historical context, not current guidance.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.
Plain-English summary
A lawyer who had taken over another lawyer's files asked whether a confidential relationship exists between the two attorneys, and what obligation he has to report ethical violations discovered after acquiring the files.
The opinion quoted Disciplinary Rule 1-103, which requires a lawyer "possessing unprivileged knowledge of a clear violation of DR 1-102" to report that knowledge "to a tribunal or other authority empowered to investigate or act upon such violation," and to reveal such knowledge or evidence fully upon proper request of an authority empowered to act on the conduct of lawyers or judges. It stated that the only exception to DR 1-103 is "knowledge or information gained in an attorney-client relationship coupled with an expectation of privilege."
The opinion concluded that there is no confidential relationship between attorneys when one is called upon to take over the files of another attorney. Because no such relationship supplies the privilege that is DR 1-103's only exception, knowledge of a clear violation discovered in the files is unprivileged.
Common questions
Q: Does taking over another lawyer's files create a confidential relationship between the two lawyers?
A: No. The opinion concluded "[t]here is no confidential relationship between attorneys when one is called upon to take over the files of another attorney."
Q: Must a lawyer report a clear ethical violation discovered in files taken over from another lawyer?
A: The opinion sets out DR 1-103's duty to report "unprivileged knowledge of a clear violation of DR 1-102" and identifies the only exception as "knowledge or information gained in an attorney-client relationship coupled with an expectation of privilege"; it found no confidential relationship between the two attorneys that would supply that privilege.
Q: What is the only exception to the DR 1-103 reporting duty?
A: Per the opinion, "knowledge or information gained in an attorney-client relationship coupled with an expectation of privilege."
Background and rules framework
The opinion applied Disciplinary Rule 1-103 (disclosure of misconduct to authorities) and its cross-reference to Disciplinary Rule 1-102 (misconduct) of the Tennessee Code of Professional Responsibility. The modern correlates are Model Rule 8.3 (reporting professional misconduct) and Model Rule 1.6 (confidentiality of information), noted here as navigational cross-references rather than rules the opinion itself applied.
Citations and references
Rules of Professional Conduct:
- DR 1-103 (disclosure of misconduct to authorities) and DR 1-102 (misconduct), Tennessee Code of Professional Responsibility
- Model Rule 8.3 (reporting professional misconduct) and Model Rule 1.6 (confidentiality of information), modern correlates
See also
- ABA Formal Op. 04-433: Reporting a Non-Practicing Lawyer
- AZ Ethics Op. 89-06: Duty to Report Misconduct
- AZ Ethics Op. 87-26: Reporting Tax-Return Failure
Source
- Landing page: https://www.tbpr.org/ethic_opinions/83-f-51
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
83-F-51 - Attorney taking over attorney files
BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE
FORMAL ETHICS OPINION 83-F-51
Inquiry is made as to whether or not a confidential relationship exists between attorneys when one is called upon to take over the files of the other and the obligation to report ethical violations discovered after having acquired the files.
Disciplinary Rule 1-103 of the Code of Professional Responsibility provides:
DR 1-103 Disclosure of Information to Authorities.
(A) A lawyer possessing unprivileged knowledge of a clear violation of DR 1-102 shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.
(B) A lawyer possessing unprivileged knowledge or evidence concerning another lawyer or a judge shall reveal fully such knowledge or evidence upon proper request of a tribunal or other authority empowered to investigate or act upon the conduct of lawyers or judges.
The only exception to the requirements of DR 1-103 is knowledge or information gained in an attorney-client relationship coupled with an expectation of privilege.
There is no confidential relationship between attorneys when one is called upon to take over the files of another attorney.
This 12th day of August , 1983.
ETHICS COMMITTEE:
Edwin C. Townsend
W. J. Flippin
Henry H. Hancock
APPROVED AND ADOPTED BY THE BOARD
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