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ER 8.3 Reporting Professional Misconduct

The Standard

ER 8.3(a) provides that 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, except as otherwise provided in these Rules or by law.” (emphasis added)

The ER provides a higher standard for reportable conduct than many lawyers initially contemplate, limiting the duty to “offenses that a self-regulating profession must vigorously endeavor to prevent,” chiefly misconduct that goes to honesty or fitness. The commentary and ethics opinions describe it as a “measure of judgment,” to be applied with reason and caution. Given the high standard, discipline for failure to report is infrequent.

The Limitation

ER 8.3(d) relieves a lawyer of the duty to report another lawyer if the report would require disclosure of confidential client information, the client does not consent, and there is no ER 1.6 exception. However, a lawyer should encourage a client to consent to disclosure where it would not substantially prejudice the client’s interests.

FAQs

If I conclude I must report another lawyer’s misconduct, when do I report?

Reasonably promptly. If possible, it is generally best to conclude a case before reporting, unless the associated harm is too grave or otherwise presents urgency. Sometimes you may need to first address an attorney’s ethical misconduct with the assigned judicial officer during the representation, for example, if opposing counsel is directly contacting your client without your consent.

Am I required to self-report?

Although lawyers have a duty to report the serious misconduct of other lawyers, the duty to self-report arises pursuant to other rules and is limited to 1) convictions for felonies and serious misdemeanors and 2) attorney discipline in another state. That said, if you are concerned about how to handle your own misconduct or possible malpractice, consider consulting counsel about the prudence of any self-report.

Must I report attorney misconduct if someone else already did?

If you are reasonably confident that the misconduct has been adequately reported, there is no need to make a duplicative report. Ariz. Ethics Op. 90-13 n. 8. However, consider that your additional report may be helpful if you have a different perspective about harm caused by the misconduct or additional facts.

I think the misconduct was inadvertent or due to inexperience; must I report?

Probably not. The ER limits the reporting obligation to substantial or serious misconduct that causes you significant concern about the lawyer’s honesty or fitness. However, consider that a borderline violation may be part of a pattern of misconduct. It’s also reasonable to err on the side of reporting if there is a victim of the attorney’s misconduct who is otherwise unlikely to discover the offense. Keep in mind that even if you’re not mandated by ER 8.3, you may still make a discretionary report.

I believe I have a duty to report, or I want to report, but my client does not want me to; may I report?

Not if your report will involve disclosure of client information protected by ER 1.6. However, you should encourage your client to allow your report if it will not substantially prejudice the client’s interests. Additionally, consider whether it’s possible to make the report without disclosing confidential client information.

Do I have to report misconduct that occurs outside of law practice?

Yes, if the misconduct raises a substantial question about the lawyer’s honesty or fitness.

Do I have to report the misconduct of a suspended, inactive, retired, foreign or disbarred lawyer?

The requirement applies to all lawyers. Those disbarred are no longer lawyers but may be subject to investigation for unauthorized practice of law.

Do I have to report unauthorized practice of law by a nonlawyer?

This is not required by ER 8.3 but the best practice is to report suspected UPL for protection of the public, after obtaining the necessary client consent to the disclosure of any confidential information.

Do I have a duty to report judicial misconduct?

Yes, if it raises a substantial question as to the judge’s fitness. However, the Bar does not investigate judges. Allegations of misconduct against Arizona judges should be made to the Arizona Commission on Judicial Conduct.

May I report anonymously?

Although Lawyer Regulation does periodically receive and investigate anonymous reports, an anonymous report will not likely satisfy your ER 8.3 mandatory reporting duty.

What happens after I report?

Lawyer Regulation’s Intake Department will pre-screen the charge to determine whether it may be quickly and informally resolved or whether it should be forwarded to Bar Counsel for further investigation. Many charges are closed at the intake level, with only those that suggest more serious misconduct advancing for a formal screening investigation. Keep in mind that at any stage, you may be required to provide further information to Bar Counsel.

Can I agree not to report opposing counsel as part of a settlement agreement on behalf of a client or seek a stipulation that the other side won’t report me?

No, this is unethical, as well as likely unenforceable as a matter of public policy. Ariz. Ethics Op. 90-06.

Can the lawyer I report sue me?

The litigation privilege applies to the contents of a bar charge. Goldman v. Sahl, 248 Ariz. 512 (App. 2020); Drummond v. Stahl, 127 Ariz. 122 (App. 1980).

May I advise opposing counsel that I plan to report the misconduct?

Yes, and sometimes civilly discussing the situation with the other lawyer may further inform your ER 8.3 analysis. However, avoid any appearance that you are threatening a bar complaint for tactical or retaliatory reasons, which is unethical. Ariz. Ethics Op. 90-13 n. 17; ABA Op. 94-383.

What about reporting ABS and LP?

Beginning January 1, 2021, lawyers must also report Alternate Business Structures (ABS) and legal paraprofessionals (LP) whose acts raise a substantial question as to compliance with the applicable codes of conduct outlined in the Arizona Code of Judicial Administration (ACJA).

This page is managed by Patricia Seguin