Lawyers keep secrets – many secrets. Secrets we sometimes wish we didn’t know, some that might haunt us at night. We are programed to maintain strict confidentiality for our clients. However, when we know that another lawyer has violated the Michigan Rules of Professional Conduct (“MRPC” or the “Rules”), we have an ethical duty to report them to the disciplinary authorities.¹ This duty is grounded in the necessity of self-regulation within the legal profession:

Implicit in the concept of self-regulation is the necessity that the “regulated” play a role in policing each other. Although many find the assumption of this responsibility onerous, or even “distasteful,” it still lies at the heart of professional self-regulation.²

BREAKING DOWN MRPC 8.3

MRPC 8.3(a) states:

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 that lawyer’s honesty, trustworthiness, or fitness as a lawyer shall inform the Attorney Grievance Commission.

Breaking 8.3 down into its elements gives you the following analysis: When a lawyer (1) has knowledge that another lawyer (2) has committed a significant violation of the Rules that raises (3) a substantial question as to(4) that lawyer’s honestly, trustworthiness, or fitness as a lawyer, they (5) shall report to the Attorney Grievance Commission (the “AGC”).

Knowledge

Knowledge³ does not require admissible evidence. Instead, based upon the information received, it may be inferred that the underlying facts are accurate. In the Michigan Rules of Professional Conduct 1.0, knowingly, known, or knows is defined as:

actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.

Further, contrary to some lawyers’ beliefs, filing a grievance does not necessitate an independent investigation by the reporting lawyer. Lawyers often think that the knowledge requirement of 8.3 requires the lawyer to independently investigate the allegations and provide all relevant evidence to the AGC. Instead, the lawyer provides the knowledge and information in their possession to the AGC who then performs its own investigation. As Ethics Opinion RI-45 explains:

It is clear that the Attorney Grievance Commission is in a much better position, given the tools it has available to it, to judge the circumstance of the unauthorized contact and to gather evidence as it deems appropriate. The difficulty of proof should not be confused with the duty to report.⁴

Significant Violation

The term “significant” is not defined and therefore is somewhat subjective. A mistake may not require reporting, particularly if the offending attorney rectifies the situation, but even minor repeated offenses may rise to the level of being significant. There are some instances where there is no question that a violation of the Rules is a significant one, like stealing client money or felony convictions.₅ More often, however, a determination must be made on a case-by-case basis. A significant violation can be one overt violation or engaging in a pattern of unethical conduct. The comments to MRPC 8.3 state:

An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover.

This is further explained in Ethics Opinion RI-149, where the Professional Ethics Committee determined that a supervising lawyer was required to report a subordinate lawyer who engaged in a pattern of unethical conduct, even though the individual violations were not significant.⁶

Substantial Question

The Comments to MRPC 8.3 explain that the lawyer must use professional judgment in determining if the alleged violation rises to the level of implicating a substantial question as to the other lawyer’s honesty, trustworthiness, or fitness to practice law. In making the determination as to whether a substantial question exists, the comments to MRPC 1.0 define “substantial” as “a material matter of clear and weighty importance.” The comments to MRPC 8.3 define the term “substantial” as referring “to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware.” The comments to MRPC 8.3 provide that some violations involving “moral turpitude” such as fraud, willful failure to file taxes, dishonesty, breach of trust, or serious interference with the administration of justice rise to the level of creating a substantial question about the lawyer’s ability to practice law ethically. Additionally, the comments state that a “pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation,” thus creating a substantial question as to the lawyer’s honesty, trustworthiness, or fitness to practice law.

Honesty, Trustworthiness, or Fitness as a Lawyer

Not every ethical violation must be reported. Only “those that go to the core of what is it to be a lawyer” require reporting.⁷ The Preamble, housed within the Comment to MRPC 1.0, emphasizes that all Michigan lawyers hold duties as public servants and officers of the court. Further, it provides an overview of the ethical standards each newly licensed lawyer must swear to uphold when taking the Lawyer’s Oath.⁸

Violations of the Rules that involve interactions with clients, unrepresented parties, or safekeeping of client funds clearly involve the lawyer’s ethical duties as a lawyer. However, there are many scenarios where conduct that is technically unethical may not necessarily implicate the lawyer’s honesty, trustworthiness, or fitness to practice law. For instance, a lawyer violating a minor criminal law may not rise to the level of a requirement to report.

Most lawyers are ethical and do not intend to violate the Rules. Often violations are a mistake, the result of overzealous representation, or lack of knowledge of the rules. When discussing reporting obligations, I often ask many questions, which may initially seem irrelevant, such as how long the ‘offending’ lawyer has been practicing, how contentious the matter is, and what the offending lawyer’s reputation is in the community. These questions assist the lawyer contemplating reporting with determining if the offending conduct really calls into question the lawyer’s ability to ethically practice law. Sometimes, if the conduct does not call into question the lawyer’s fitness to practice law and the conduct can be rectified, a lawyer may choose to advise the offending lawyer of the alleged misconduct, offering an opportunity to rectify before filing a request for investigation. However, the advice cannot be offered in exchange for anything other than rectification of the alleged misconduct.

Shall Report

Rule 8.3 uses the word “shall,” meaning that if the previous four elements are met, a lawyer must report that violation to the AGC. Lawyers may report other violations where not all four of the previously discussed elements are satisfied. Ethics Opinion RI-88 includes an analysis of when conduct rises to the level that it requires reporting and supports the position that the lawyer may want to report, even where there is no duty.

A lawyer may, but is not required, to report to the Attorney Grievance Commission other misconduct which (a) is not protected from disclosure by MRPC 1.6; (b) is not a significant violation of the ethics rules; or (c) does not raise a substantial question of honesty, trustworthiness or fitness.⁹

There are few opinions that assert an unequivocal duty to report. One such opinion is RI-145, which requires a lawyer to report if they have “knowledge that another lawyer has negotiated a settlement directly with a party represented by counsel but without the consent of the party’s counsel or as otherwise authorized by law[.]”¹⁰ Ethics Opinion RI-171 requires that a lawyer report another lawyer for failure to communicate a settlement offer to the client as it is a clear violation of MRPC 4.2.¹¹ Lastly, according to Ethics Opinion RI-88, A lawyer has a duty to report another lawyer who makes an offer to settle a matter where one condition of settlement is to refrain from reporting lawyer misconduct to the AGC.¹²

Also note that if the client files a request for an investigation, it does not absolve the lawyer of a duty to report. The duty to report exists whether someone else has reported the violation of the Rules or not.

Client Confidentiality vs the Duty to Report

Maintaining client confidentiality is paramount to the practice of law. Lawyers must balance the duty of confidentiality against the duty to report. Ethics Opinion RI-232 provides that a lawyer may not report another lawyer if the information supporting the allegations of misconduct is a client secret protected by MRPC 1.6 and instead must first seek client consent.¹³ Further, RI-314 provides that a lawyer is not subject to discipline for failure to report another lawyer if the client’s decision to withhold the relevant information is made in good faith.¹⁴ Lastly, Ethics Opinion RI-101 requires a lawyer to report a suspended attorney who continues to practice after suspension, except when the lawyer is representing the suspended attorney as MRPC 1.6 is implicated.¹⁵

Informing vs Threatening

Informing is legal; extortion is not.¹⁶ Ethics Opinion RI-88 illuminates the distinction.

[T]he lawyer must also consider the lawyer’s own motivations in reporting or not reporting the possible violation. An “unwillingness to get involved” is simply not an adequate reason to fail to report a significant violation of professional rules which raises a substantial question of honesty, trustworthiness or fitness of another lawyer. On the other hand, spite, anger, vengeance, or seeking advantage for a client are not adequate motivations to report the conduct of an adversary whose conduct could not be deemed to be a significant violation of the rules raising a substantial question of the lawyer’s honesty, trustworthiness or fitness.¹⁷

This opinion states the position that a lawyer cannot threaten or warn the violating lawyer that if the case is not resolved in favor of the reporting lawyer’s client that a request for investigation will be filed. It does not prevent advising the offending lawyer and providing an opportunity to rectify when the circumstances are appropriate for rectification, if the advisement is not utilized to obtain the results desired by the reporting lawyer’s client. This can be a fine line to walk, but it is for the good of the profession.

Referrals to the Lawyers and Judges Assistance Program

Sometimes, a lawyer may believe that another lawyer’s conduct is due to mental health or substance use issues. If the issues presented do not rise to the level of a duty to report, one option is to refer the lawyer to the Lawyers and Judge’s Assistance Program.¹⁸ The program’s goal is to assist lawyers with general wellbeing, including providing mental health and substance use assistance on a sliding fee scale. Referrals can be made by calling the helpline, email, or an online form located on the website.

Judicial Officers

Judicial officers are bound by the Michigan Rules of Professional Conduct and must report lawyers as provided herein. Moreover, MCJC 3(B)(3) states: “A judge should take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware.”