April 7, 1995
A lawyer may not report another lawyer's ethical misconduct to the Attorney Grievance Commission if the information is confidential or secret without the client's consent.
References: MRPC 1.6(c)(2), 8.3(a) and (c), 8.4(b).
A lawyer handled a loan transaction under which the proceeds were to be used to pay off a mortgage. The lawyer was to pay off the mortgage with the loan proceeds and made several payments, but failed to do so timely and completely. The debtor received foreclosure notices and suffered denial of credit.
The debtor sought legal assistance from the inquirer, who arranged a settlement with the lawyer on the dispute. A portion of the Release and Settlement agreement which the client signed states that the agreements "shall be considered full and complete extinguishment of all causes of action, grievances and rights of the parties as same relate to each of the aforementioned causes, whatsoever." Emphasis added.
During the course of the representation, the inquirer obtained knowledge that the client's former counsel acted in contravention of MRPC 8.4(b), i.e., "engaged in conduct involving dishonesty, fraud, deceit, misrepresentation, or violation of the criminal law, where such conduct reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer." The inquirer asks whether reporting the lawyer to the Attorney Grievance Commission is prohibited without the client's consent.
MRPC 8.3(a) and (c) state:
"(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 that 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; or
"(2) information gained by a lawyer while serving as an employee or volunteer of the substance abuse counseling program of the State Bar of Michigan, to the extent the information would be protected under Rule 1.6 from disclosure if it were a communication between lawyer and client."
MRPC 1.6 generally protects confidences and secrets from disclosure unless the client consents. 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.
We do not have sufficient facts about the origin of the inquirer's information to determine whether the information concerning the other lawyer's misconduct is confidential or secret, and therefore leave that determination to the inquirer. If the information is protected by MRPC 1.6, disclosure to the Attorney Grievance Commission is not required, and in fact is prohibited without the client's consent.