If a government lawyer seems to stonewall a public-records request, has that lawyer committed misconduct, and must a lawyer-requester who only suspects it report it?

Plain-English summary

A taxpayer appealing his home assessment asked a county Board to subpoena witnesses, and the Board said it was not its "policy" to do so. Through a Freedom of Information Act request, the taxpayer sought records of any subpoenas issued and the Board's policies and procedures; he was told there were no subpoena records and was given the policies and procedures, which made no reference to a subpoena policy. Over many months the taxpayer pressed county Attorney X and his supervisor Attorney Y for the date the "policy" was adopted and the minutes of that meeting, accusing them of being intentionally untruthful and of feigning FOIA compliance. The taxpayer, himself a Virginia lawyer, asked the committee whether Attorneys X and Y violated DR 7-102(A)(3) or (A)(5), whether he had a duty to report them under DR 1-103, and whether he had to file a bar complaint or instead bring a FOIA action.

The controlling rules were DR 7-102(A)(3) (no concealing or knowingly failing to disclose what the law requires the lawyer to reveal), DR 7-102(A)(5) (no knowingly making a false statement of law or fact), and DR 1-103(A) (duty to report misconduct). The committee concluded that Attorneys X and Y did not violate DR 7-102(A)(3), because they had responded sufficiently to the subpoena-records question by stating there were no such records and providing the policies and procedures. As to DR 7-102(A)(5), the committee found the taxpayer may have read "policy" too narrowly: a policy can be custom or practice and need not be reduced to writing, so even an unwritten subpoena "policy" could exist, and the attorneys did not knowingly make a false statement.

Because no violation was found, the committee treated the reporting question as moot, but it addressed the broader threshold: a lawyer is obligated to report misconduct under DR 1-103(A) only when the information rests on a substantial degree of certainty rather than rumor or suspicion. Since the taxpayer's belief was based on suspicion, no reporting obligation arose (LE Op. 1338, 1545). Whether the taxpayer must bring a FOIA action raised a legal question beyond the committee's purview.

Currency note

This opinion was issued in 1993, under Virginia's former Code of Professional Responsibility (the disciplinary rules and ethical considerations it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. The reporting standard itself later changed: as the committee notes record, current Rule 8.3(a) requires reporting where the lawyer has "reliable information" about another lawyer's violation. 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 a government lawyer commit misconduct by citing an unwritten "policy" in response to a records request?

A: Under this 1993 opinion, not on these facts. The committee held a policy can exist as custom or practice without being written, so the attorneys did not knowingly make a false statement when they referred to an unwritten subpoena policy.

Q: Did the government lawyers conceal records by how they answered the FOIA request?

A: The committee found no violation of DR 7-102(A)(3), concluding the attorneys responded sufficiently by stating there were no subpoena records and providing the Board's policies and procedures.

Q: If a lawyer only suspects another lawyer lied, must the lawyer report it?

A: No. The committee held the duty to report arises only on information held to a substantial degree of certainty, not rumor or suspicion, so a suspicion-based belief triggers no obligation.

Background and rules framework

The opinion interpreted former Virginia DR 7-102(A)(3) (no concealing or failing to disclose what the law requires), DR 7-102(A)(5) (no knowing false statement of law or fact), and DR 1-103(A) (duty to report misconduct), against the Virginia Freedom of Information Act. The reporting duty is now carried forward in Virginia Rule 8.3(a), which (as the committee notes record) turns on the lawyer's possession of "reliable information," and the litigation-conduct concerns track Rule 3.4.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 7-102(A)(3), (A)(5); DR 1-103(A); EC 1-5 (Code of Professional Responsibility)
• ABA Model Rule 8.3 (reporting misconduct); Model Rule 3.4 (fairness to opposing party)

Statutes:

• Virginia Freedom of Information Act, Va. Code § 2.1-342 et seq. (as then codified); Va. Code § 58.1-3386 (board subpoenas).

Other opinions cited:

• Virginia LE Op. 1338, 1545: the duty to report arises only on information held to a substantial degree of certainty, not suspicion.

See also

• VA LEO 1646: Reporting Misconduct in a Civil Case
• VA LEO 1582: Prosecutor's Threatening Civil Letter
• VA LEO 1840: Fraudulent Deed and Duty to Report

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1566.pdf

Original opinion text

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

Committee Opinion
December 14, 1993
Affirmed
April 11, 1994
Reaffirmed
July 20, 1994
LEGAL ETHICS OPINION 1566

ZEALOUS REPRESENTATION — DUTY
TO REPORT: REFUSAL OF LOCAL
GOVERNMENT ATTORNEY TO
COMPLY WITH FREEDOM OF
INFORMATION ACT REQUEST.

You have presented a hypothetical situation in which Taxpayer, resident in County A,
has appealed the assessed value on his home to the Board of Real Estate Review and
Equalization (“Board”) of County A. Pursuant to § 58.1-3386 of the Code of Virginia
(“Code”), Taxpayer has asked Board to subpoena witnesses to offer evidence at the
hearing. Taxpayer is informed that it is not the “policy” of the Board to subpoena
witnesses. Taxpayer continuously asks, in writing, how Board can fulfill its statutory
charge to hear the case of Taxpayer and refuse to subpoena the witnesses Taxpayer needs
to present his case.
Approximately four months later, Taxpayer asks in writing, pursuant to the Freedom of
Information Act (“FOIA”), if Board has ever issued a subpoena and for a copy of all
policies and procedures under which Board operates. One day after the written request is
made, Taxpayer is informed that there are no records relating to the issuance of any
subpoena and is provided with a copy of the policies and procedures of Board. You state
that the policies and procedures contained no reference to a policy concerning subpoenae.
Approximately seven months later, Taxpayer is advised by the Assistant Real Estate
Director of Board that it is not Board's “policy” to subpoena witnesses. Shortly thereafter,
Taxpayer questions that policy, in response to which Attorney X of County A states:
The Board's policy concerning use of its authority to summons witnesses has been
explained to you both last year and this year in previous correspondence. I find no
violation of law or procedure in this policy.
Approximately three weeks later, Taxpayer asks Attorney X to provide the date Board
adopted its “policy” and a copy of the minutes of that meeting. Taxpayer prompts
Attorney X for a response to that request twice in the next month. You state that, three
weeks after the last prompt, Attorney X responds, but does not provide the documents
originally requested.
Approximately one month later, Taxpayer reminds Attorney X that the explicit FOIA
request has not been fulfilled, to which Attorney X informs Taxpayer that he may inspect
the records of Board or he may pay $1,450 for a copy of all 38 years of records of Board.
Taxpayer then advises Attorney X that that response is not in compliance with the FOIA,
to which Taxpayer states as follows:

Committee Opinion
December 14, 1993
Affirmed
April 11, 1994
Reaffirmed
July 20, 1994
The adoption of the “policy” either predates my dealing with the Board or does not
exist. I believe it is the latter and that you are therefore caught with your earlier
statements. I am stating that I believe you have been intentionally untruthful to me.
You are invited to prove me wrong. You can do so by telling me the date of the
adoption of the “policy” and to send me those minutes. Further, your response is
incorrect as a matter of law. Re-read Section A. The minutes allegedly exist and you
have not been asked to abstract or summarize records or to convert records into
another form. A meeting is a discrete, discernible, segregatable event. Section 2.1342.A provides that “any reasonably segregatable portion of an official record shall
be provided to any person requesting the record after the deletion of the exempt
portion.” Quit wasting my time. Provide me with the minutes of the meeting at
which the “policy” was adopted or confirm that such records do not exist.
Shortly thereafter, Attorney Y, supervisor of Attorney X, advises Taxpayer that
Attorney X has not been intentionally untruthful. Attorney Y advises Taxpayer, who is a
licensed Virginia lawyer, that a lawyer should be temperate and dignified and that
Taxpayer should cease making ad hominem attacks on Attorney X.
In response to Attorney Y, Taxpayer points out that EC:1-5 of the Virginia Code of
Professional Responsibility also encourages obedience to the law. Taxpayer specifically
demands compliance with the FOIA as to the “policy” and that the minutes at which the
“policy” was adopted be provided. Taxpayer reiterates that demand to Attorney Y six
times during the succeeding eight weeks. At the conclusion of that time period, Attorney
Y states “. . . in my opinion, the County has complied with your FOIA request.” Shortly
thereafter, Taxpayer, by certified mail, advises Attorney Y as follows:
For the first time, you have asserted your “opinion” that the County has complied
with my FOIA request. Your “opinion” is not correct and if you do not already know
that, you should. You have not been asked to “abstract” or “summarize” a record.
The record, minutes of each meeting, exists. You have asserted the existence of a
“policy”. Therefore, you must be aware that the policy has been adopted. Therefore,
you should be able to provide me with the minutes of the meeting at which the policy
was adopted. You have not been asked to “create” a record. Additionally, FOIA is
full of language about the intent of the Act and about cooperation by the
governmental body. Further, you have previously provided me with minutes of
meetings. In short, I believe no reasonable person would believe your “opinion” has
been arrived at in good faith. Therefore, I believe your “opinion” is yet another
deliberate deception as you know it is not correct. It is one thing to represent the
County zealously; it quite another to ignore mandatory language in the law and to
pretend you are in compliance. Please comply with FOIA.

Committee Opinion
December 14, 1993
Affirmed
April 11, 1994
Reaffirmed
July 20, 1994
You state that the above certified mailing was received by Attorney Y and no response
had been received within six weeks.
You have asked the committee to opine under the facts of the inquiry, (1) whether
Attorneys X and Y have violated DR:7-102(A)(3) by failing to produce documents
covered by FOIA; (2) whether, if the “policy” does not exist, Attorney X or Attorney Y
has violated DR:7-102(A)(5); (3) whether, if either DR:7-102(A)(3) or (5) has been
violated, Taxpayer, as a licensed Virginia lawyer, has a duty to report such misconduct
pursuant to DR:1-103; and (4) whether, if Taxpayer suspects a violation of DR:7-102(A)
but cannot prove it because the County refuses to comply with FOIA, Taxpayer must (i)
complain to the Bar about Attorneys X and Y, or (ii) bring a FOIA action in County A
courts to compel compliance with FOIA to determine the veracity of Attorneys X and Y
The appropriate and controlling Disciplinary Rules related to your inquiry are DRs 1103(A), 7-102(A)(3) and 7-102(A)(5) which state, respectively, that a lawyer shall not
conceal or knowingly fail to disclose that which he is required by law to reveal or
knowingly make a false statement of law or fact; and Disciplinary Rule 1-103(A) which
provides that a lawyer having information indicating that another lawyer has committed a
violation of the Disciplinary Rules that raises a substantial question as to that lawyer's
honesty, trustworthiness, or fitness to practice law in other respects shall report such
information to the appropriate professional authority.
The committee responds relative to your inquiries as follows:

1. As to whether Attorneys X and Y have violated DR:7-102(A)(3), the committee is of
   the opinion that Attorneys X and Y responded sufficiently on September 9, 1992, April
   12, 1993, and September 17, 1993 to Taxpayer's question as to the issuance of
   subpoenae. The facts indicate that on September 9, 1992, Board informed Taxpayer that
   there were no records relating to the issuance of any subpoenae and provided him with a
   copy of the policies and procedures of the Board. The committee believes, then, that
   Attorneys X and Y have not violated DR:7-102(A)(3).
2. Regarding your second inquiry, the committee believes that Taxpayer may have
   adopted an excessively narrow interpretation of “policy”. Black's Law Dictionary, 5th
   Edition, defines “policy” as “the general principles by which a government is guided in
   its management of public affairs, or the legislature in its measures.” There is no reference
   to “policy” being defined in terms of an official action memorialized in written form. The
   committee recognizes that while some “policies” may be written, others may more
   simply be “custom” or “practice” and, thus, not in writing.
   The facts indicate that the policies and procedures, provided to Taxpayer by the Board,
   contained no reference to a policy concerning subpoenae. The committee is of the
   opinion that even if the “policy” has not been reduced to print, it may still exist. The

Committee Opinion
December 14, 1993
Affirmed
April 11, 1994
Reaffirmed
July 20, 1994
committee believes, then, that Attorneys X and Y have not violated DR:7-102(A)(5), i.e.,
they have not knowingly made a false statement of law or fact.

3. In the committee's view, therefore, your third inquiry, regarding the obligation to
   report misconduct under DR:1-103, has been rendered moot, based upon the committee's
   conclusion that no violation of DR:7-102(A)(3) and (5) has occurred.
4. Finally, you inquire whether Taxpayer must file a complaint with the Bar, or file a
   FOIA action in County A, if he suspects, but is unable to prove, a violation of DR:7102(A) by Attorneys X and Y.
   The committee opines that Taxpayer is obligated to report misconduct, under DR:1103(A), if he possesses information, based on a substantial degree of certainty and not on
   rumor or suspicion, that another lawyer has committed a violation of the Disciplinary
   Rules that raises a substantial question as to that lawyer's honesty, trustworthiness, or
   fitness to practice law in other respects. [emphasis added] Since Taxpayer's information
   is based on suspicion, the obligation to report misconduct does not arise. See LE Op.
   1338, LE Op. 1545.
   The question as to whether Taxpayer must bring a FOIA action in County A, if he
   suspects but is unable to prove a violation by Attorneys X and Y, raises a legal issue the
   determination of which is beyond the purview of the committee.
   Committee Opinion
   December 14, 1993
   Affirmed
   April 11, 1994
   Reaffirmed
   July 20, 1994
   Legal Ethics Committee Notes. – Rule 8.3(a) requires a lawyer to report another
   lawyer’s ethics violation under certain circumstances if the lawyer has “reliable
   information” about the breach.