Wisconsin Lawyer
Vol. 80, No. 5, May 2007

Question

I heard that the new Rules of Professional Conduct prevent a lawyer from reporting on the misconduct of another lawyer. Is that true?

Answer

There have been some changes to SCR 20:8.3, entitled "Reporting Professional Misconduct," but those changes are not designed to prevent a lawyer from reporting on the professional misconduct of another lawyer.

The lawyer oversight system is designed to be self-regulatory and lawyers are expected to report on the misconduct of another lawyer. In the Preamble to the Rules of Professional Conduct Chapter 20 (as amended effective July 1, 2007), all lawyers are reminded of their ethical obligation to monitor and report the conduct of other lawyers. This obligation is highlighted in the Preamble:

"[12] The legal profession's relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves."

Clarifying current duties and obligations to report misconduct. There have been several changes to SCR 20:8.3 relating to the reporting of professional misconduct of another lawyer, but these changes only clarify the current duties and obligations of a Wisconsin lawyer. Under SCR 20: 8.3(a), a lawyer "who knows 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." A subtle language change in this provision acknowledges the first requirement, that a lawyer "knows" that another lawyer has committed a violation of the rules. This has always been the standard looked to when determining whether a lawyer has a duty to report conduct of another lawyer to the Office of Lawyer Regulation (OLR). There is still the requirement that the violation must raise "a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects" for the conduct to warrant the reporting of information to the OLR.

Consulting with affected clients before reporting lawyer misconduct. New language has been added to SCR 20:8.3. The language is found in SCR 20:8.3(c):

"(c) If the information revealing misconduct under subs. (a) or (b) is confidential under SCR 20:1.6, the lawyer shall consult with the client about the matter and abide by the client's wishes to the extent required by SCR 20:1.6."

This language clearly delineates the requirement that a lawyer consult with the client when the information about another lawyer's misconduct arises from the representation of the client. The lawyer must consult with the client and receive the client's informed consent to release confidential information to the OLR. This duty to consult with the client and receive the client's informed consent or permission to release the information to the OLR has always been the obligation of the lawyer. The new language has been inserted into SCR 20: 8.3 to remind lawyers of the obligation to consult with the client before releasing client confidential information as part of the action to "inform the appropriate professional authority." If the client does not give permission by informed consent to the release of confidential information, the lawyer may not release that information to the OLR. The lawyer must remember that the standard of "informed consent" requires the lawyer to discuss the pros and cons of releasing the confidential information to the OLR and the availability of other options or alternatives.

It also is important to remember that SCR 20:8.3 does not require disclosure of information "gained by a lawyer while participating in a confidential lawyers' assistance program" or "acquired by a person selected to mediate or arbitrate disputes between lawyers … where such information is acquired in the course of mediating or arbitrating the dispute between lawyers." SCR 20:8.3(d). The Wisconsin Comment to SCR 20:8.3 also acknowledges that information received during consultations with the State Bar of Wisconsin Ethics Hotline or the Law Office Management Assistance Program (LOMAP) would be information that was gained while participating in a confidential lawyers' assistance program. Wisconsin lawyers can feel confident that a consultation with the Ethics Hotline or LOMAP will not result in information being reported to the OLR.

The new Rules of Professional Conduct become effective July 1, 2007. While there are several changes to the rules that address the duty of lawyers to communicate with their clients, the changes to SCR 20:8.3 recognize and preserve the client confidentiality rules. A lawyer may not report information about the apparent misconduct of another lawyer if the information is gained while representing a client unless the client gives informed consent to the disclosure of the confidential information. Lawyers should encourage clients to allow the disclosure of such information when necessary to report on the apparent misconduct of another lawyer. One must always recognize the sanctity of the confidentiality of attorney-client information.

Wisconsin Lawyer