Must a lawyer report another lawyer's misconduct when doing so would reveal a client secret and harm a former client?

Plain-English summary

The inquiry asked whether the lawyer could disclose possible misconduct by another lawyer when that disclosure might damage a client or former client. The committee weighed the reporting duty in RPC 8.3 against the confidentiality protection in RPC 1.6.

The committee was of the opinion that, under RPC 8.3, the lawyer has an ethical duty to report another lawyer's misconduct unless the disclosure would violate RPC 1.6. Here, it found, disclosure clearly would violate RPC 1.6, because the information to be disclosed was a client secret and disclosing it would harm the former client. The committee added that, in the event it became necessary to disclose the information in order to protect the lawyer from accusations of wrongdoing, RPC 1.6(b)(2) would permit such disclosure.

Currency note

This opinion was issued in 1988, before the 2006 revisions to the Washington 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 Treat this page as historical context, not current guidance.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 a lawyer always have to report another lawyer's misconduct?

A: Not under this opinion. The committee read RPC 8.3 to require reporting unless doing so would violate the confidentiality protection of RPC 1.6.

Q: Why did confidentiality win here?

A: Because the information to be disclosed was a client secret and disclosing it would harm the former client, so reporting would violate RPC 1.6.

Q: Could the lawyer ever disclose the information?

A: Yes, in self-defense. The committee said RPC 1.6(b)(2) would permit disclosure if it became necessary to protect the lawyer from accusations of wrongdoing.

Background and rules framework

RPC 8.3, Washington's version of ABA Model Rule 8.3, requires a lawyer who knows of another lawyer's misconduct to report it, but expressly excepts information protected by RPC 1.6. RPC 1.6, Washington's confidentiality rule, protects client confidences and secrets and contains exceptions, including the self-defense exception the committee identified at RPC 1.6(b)(2). The committee applied the interaction of those two rules to a reporting question that would expose a former client's secret.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 8.3 (reporting professional misconduct)
• ABA Model Rule 1.6 (confidentiality of information)
• Washington RPC 8.3, RPC 1.6, and RPC 1.6(b)(2)

See also

• ABA Formal Op. 04-433: Reporting a non-practicing lawyer
• ABA Formal Op. 03-431: Reporting an impaired lawyer outside the firm

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=327

Original opinion text

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

The Committee reviewed your inquiry concerning whether you could disclose possible misconduct by another lawyer when such disclosure might cause damage to a client or former client. The Committee was of the opinion that under RPC 8.3 you have an ethical duty to report the misconduct of the other lawyer unless such disclosure would violate RPC 1.6, which, in this case, it clearly would because the information which would be disclosed is a client secret and such disclosure would harm the former client. It is further the opinion that in the event that it became necessary to disclose such information in order to protect yourself from accusations or wrongdoing, RPC 1.6(b)(2) would permit such disclosure.