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Ethics Opinion

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RI-314

October 19, 1999

SYLLABUS

    A lawyer is not exposed to disciplinary charges for failing to report conduct of another lawyer which is subject to the reporting requirements of MRPC 8.3(a), if the lawyer's reason for failing to disclose is that the information is protected by MRPC 1.6.

    Good faith decisions by a client to withhold the information necessary to discipline a lawyer must be respected, but manipulation of such decisions should be considered a violation of MRPC 8.3 by the lawyer manipulating the client in this fashion.

    A would-be reporting lawyer is excused from submitting a redacted or generic report to the Attorney Grievance Commission if that redacted or generic report would lead to the disclosure of information the client has requested be held inviolate.

    References: MRPC 1.6(a), (b) and (c). 8.3(a) and (c); RI-77, RI-232; In Re Himmel, 553 NE2d 790 (Ill, 1980); The Law of Lawyering, Hazard & Hodes § 8.3:202.

TEXT

Lawyers A, B, C and Z are employed at law firm. Lawyer A, while auditing a law firm client's file, discovered Lawyer Z had billed for work that Lawyer Z had not done. Lawyer A reported Lawyer Z's conduct to Lawyers B and C, also employed at law firm. Lawyers B and C confronted Lawyer Z, who denied any intentional misbilling. Lawyers

B and C determined that Lawyer Z could not have unintentionally billed client. Lawyer C terminated Lawyer Z's employment with law firm. Lawyer B informed client of what occurred and credited the client for the work Lawyer Z had billed for, but had not done.

Lawyer C and inquirer (lawyer who represents law firm and Lawyers A, B, and C) have determined that Lawyer Z's conduct involved violations of the Michigan Rules of Professional Conduct that were subject to MRPC 8.3(a)'s reporting requirement.

Because a full report to the Attorney Grievance Commission would require disclosure of information arguably protected by MRPC 1.6, Lawyer B contacted client and requested client's consent for the disclosures necessary in making such a report. Lawyer B explained the seriousness of Lawyer Z's misconduct and encouraged client to consent to the necessary disclosures. In particular, Lawyer B requested consent to disclose client's identity, the billings involved, and the file materials in client's files related to the work at issue. Because the work involved sensitive product information, client instructed Lawyer B that law firm was to keep the files confidential and not to include client's identity in any reporting of Lawyer Z's misconduct.

This committee is asked, what if anything, law firm, Lawyers A, B, C and lawyer inquirer are required to report concerning Lawyer Z's misconduct.

MRPC 8.3 states in pertinent part:

    "(a) A lawyer having knowledge that another lawyer has committed a significant violation of the Rules of Professional Conduct that raises a substantial question as to the lawyer's honesty, trustworthiness, or fitness as a lawyer shall inform the Attorney Grievance Commission.

    ". . .

    "(c) This rule does not require disclosure of:

      (1) information otherwise protected by Rule 1.6; . . . ."

The inquirer has determined that Lawyer Z's conduct involved violations of the Michigan Code of Professional Conduct that were subject to the reporting requirements of MRPC 8.3(a). Consequently, the analysis then shifts to a determination of what information concerning Lawyer Z's misconduct is information protected by MRPC 1.6, i.e., "confidence" or "secret."

MRPC 1.6 (a), (b) and (c) state:

    "(a) "Confidence" refers to information protected by the client-lawyer privilege under applicable law, and "secret" refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.

    "(b) Except when permitted under paragraph (c), a lawyer shall not knowingly:

      (1) reveal a confidence or secret of a client;

      (2) use a confidence or secret of a client to the disadvantage of the client; or

      (3) use a confidence or secret of a client for the advantage of the lawyer or of a third person, unless the client consents after full disclosure.

    "(c) A lawyer may reveal:

      (1) confidences or secrets with the consent of the client or clients affected, but only after full disclosure to them:

      (2) confidences or secrets when permitted or required by these rules, or when required by law or by court order;

      (3) confidences and secrets to the extent reasonably necessary to rectify the consequences of a client's illegal or fraudulent act in the furtherance of which the lawyer's services have been used;

      (4) the intention of a client to commit a crime and the information necessary to prevent the crime; and

      (5) confidences or secrets necessary to establish or collect a fee, or to defend the lawyer or the lawyer's employees or associates against an accusation of wrongful conduct."

Because client instructed Lawyer B that law firm was to keep client's files confidential and not to include client's identity in any reporting of Lawyer Z's misconduct, any information or documents falling within this umbrella, without addressing what may also be a "confidence," are, at least, a "secret" under MRPC 1.6(a). This specifically includes the client's identity. RI-77. Therefore, because the facts provided by this inquirer do not fall within one of the discretionary exceptions in MRPC 1.6(c), disclosure of the protected information to the Attorney Grievance Commission is not required. As this committee opined in RI-232:

    "The import of MRPC 8.3(c) is that a lawyer is not exposed to disciplinary charges for failing to report conduct of another which falls within MRPC 8.3(a), if the lawyer's reason for failing to disclose is that the information is protected by MRPC 1.6"

Good faith decisions by a client to withhold the information necessary to discipline a lawyer must be respected, but manipulation of such decisions should be considered a violation of MRPC 8.3 by the lawyer manipulating the client in this fashion. In Re Himmel, 553 NE2d 790 (Ill, 1980), The Law of Lawyering, Hazard & Hodes § 8.3:202. If the violation that should be reported is serious enough, the lawyer has at least, a moral duty to urge the client to come forward, or permit the lawyer to come forward, in the public interest. The Law of Lawyering, Hazard & Hodes § 8.3:202. The inquirer appears to have satisfied this obligation. While a client may not prevent a lawyer from reporting misconduct that should be reported, a client can prevent the client's lawyer from relying on confidential information in doing so. Generally, this means that the client will be able to exercise a practical veto, since typically the would-be reporting lawyer will have only confidential information at the lawyer's disposal. The Law of Lawyering, Hazard & Hodes § 8.3:202.

While reluctant to do so, this committee believes a would-be reporting lawyer is also excused from submitting a redacted or generic report to the Attorney Grievance Commission if that redacted or generic report would lead to the disclosure of information the client has requested be held inviolate. For example, lawyer inquirer could submit a redacted report to the Attorney Grievance Commission containing the facts as stated in this opinion with one exception, Lawyer Z's name is identified. Obviously, Lawyer Z would defend the charges, and in the process, Lawyer Z would disclose the information law firm client asked to be held inviolate, in large part.

 
     

 

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