Does a lawyer have to report opposing counsel's serious misconduct to the disciplinary authority if reporting it would reveal the lawyer's own client's information?

Plain-English summary

Opinion E-89-12 asked whether a lawyer must report a violation of the rules of professional conduct by opposing counsel, one that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness, to the appropriate disciplinary agency if reporting the information would prejudice the interests of the reporting lawyer's client in the representation in question. The committee answered no.

The committee concurred with Professor Charles W. Wolfram's view that the reporting obligation of SCR 20:8.3(a) is narrower than the former Code's DR 1-103(A) in one material way: because the confidentiality rule extends to all information relating to the representation of a client, with the only relevant exception being disclosures impliedly authorized to carry out the representation, reporting is foreclosed if it would entail revelation of any client information, whether or not the revelation would prejudice the client's interests. Reporting under SCR 20:8.3(a) is therefore required only when doing so would affirmatively advance a client's interests, or when it would not involve revelation of any information relating to the representation. The committee noted that although the Wisconsin confidentiality rule, SCR 20:1.6, differs from ABA Model Rule 1.6 in material respects, those differences were not relevant here, and that SCR 20:8.3(c) does not require disclosure of information protected by SCR 20:1.6, which in turn does not permit reporting the misconduct unless the client consents after consultation.

Currency note

This opinion was issued in 1989, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update). 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 Treat this page as historical context, not current guidance.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 always report opposing counsel's serious misconduct?

A: No. The committee concluded that the reporting duty under SCR 20:8.3(a) does not require disclosure of information protected by the confidentiality rule, so reporting is not required when it would reveal client information.

Q: When is reporting required?

A: Only in two situations. Concurring with Professor Wolfram, the committee concluded that reporting under SCR 20:8.3(a) is required only when it would affirmatively advance the client's interests, or when it would not involve revealing any information relating to the representation.

Q: Could the lawyer report with the client's permission?

A: Yes. The committee concluded that SCR 20:1.6 does not permit reporting the misconduct unless the client consents after consultation.

Background and rules framework

The opinion interpreted SCR 20:8.3 / Model Rule 8.3 (reporting professional misconduct), in particular the confidentiality limit in subsection (c), and SCR 20:1.6 / Model Rule 1.6 (confidentiality of information), concluding that the duty to report yields to the duty to protect client information absent the client's consent.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20:8.3 / Model Rule 8.3 (reporting professional misconduct)
• Wis. SCR 20:1.6 / Model Rule 1.6 (confidentiality of information)

Other references:

• C. Wolfram, Modern Legal Ethics 685 (West 1986)

See also

• ABA Formal Op. 04-433: Reporting Misconduct of a Non-Practicing Lawyer
• WI Ethics Op. EF-20-01: When a Grievance Is Filed
• WI Ethics Op. E-89-11: Confidences of a Deceased Client

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-89-12.pdf