Synopsis

Wisconsin lawyers have a duty to report misconduct by other lawyers and judges to the appropriate disciplinary agency. This duty is not absolute. Instead, it is triggered when certain conditions are satisfied: (1) the lawyer “knows” the violation occurred, (2) the conduct “raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer” and (3) the lawyer’s client gives informed consent to disclosure if reporting requires disclosing information relating to the representation of the client.

Although this duty is a central part of our system of self-regulation it has been the source of confusion among practicing lawyers. This opinion seeks to clarify the duty by addressing several of the most common questions that arise in its application, including (1) what constitutes knowledge of a disciplinary rule violation, (2) what types of misconduct are serious enough to require reporting, (3) the duty to consult with the client about whether they consent to disclose information relating to the representation if necessary to report the misconduct, (4) whether the duty extends to conduct unrelated to the practice of law, lawyers not currently licensed, or lawyers within the same firm, or the lawyer’s own conduct and (5) to whom and when the report should be made.

Introduction

Most lawyers are aware that there exists a “duty to report” misconduct of other lawyers and judges in Wisconsin’s Rules of Professional Conduct for Attorneys but are unsure of its exact parameters. In this opinion, the State Bar’s Standing Committee on Professional Ethics (the “committee”) discusses the parameters of a Wisconsin lawyer’s duty to report another lawyer or a judge and addresses several questions that may arise when considering that duty. For purposes of this opinion, “misconduct” means a violation of Supreme Court Rule (“SCR”) 20:8.4^[1] or a violation of Chapter 60 of the supreme court rules.^[2]

Opinion

Wisconsin, like all other states, includes a provision in its’ Rules of Professional Conduct for Attorneys (the “rules”), found in Chapter 20 of the Supreme Court Rules (“SCRs”), requiring lawyers to report the misconduct of other lawyers and judges. This duty derives from the notion that lawyers, as officers of the court and part of the judicial branch of government, are not subject to regulation by the executive and legislative branches and thus must be self-regulating.^[3] This self-regulation is enacted by the Wisconsin Supreme Court in promulgating disciplinary rules and establishing a disciplinary agency, the Office of Lawyer Regulation (“OLR”). The duty is set forth in SCR 20:8.3, which states:

“(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.

(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.

(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.

(d) This rule does not require disclosure of any of the following:

(1) Information gained by a lawyer while participating in a confidential lawyers’ assistance program.

(2) Information acquired by any person selected to mediate or arbitrate disputes between lawyers arising out of a professional or economic dispute involving law firm dissolutions, termination or departure of one or more lawyers from a law firm where such information is acquired in the course of mediating or arbitrating the dispute between lawyers.”

SCR 20:8.3 makes clear the mandatory nature of the reporting requirement, but it also makes clear that there are certain conditions and exceptions to that duty. Importantly, as discussed below, SCR 20:8.3 does not require lawyers to report all misconduct of other lawyers. Thus, while lawyers do have a duty to report, it is a conditional duty and subject to exceptions.

The rule sets forth a two-step analysis for determining whether the duty to report has arisen. First, a lawyer must determine whether the lawyer knows that another lawyer has violated a rule (i.e. committed misconduct). Second, the lawyer must determine whether that misconduct raises a substantial question about the other lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects. If the answer to both questions is yes, then a mandatory duty to report has arisen. Both prongs of this analysis are discussed below.

1) The duty to report applies when a lawyer has knowledge of misconduct committed by another lawyer or judge. The first prong of the analysis requires that a lawyer know of the misconduct of another lawyer or judge, so it must first be determined what it means to have knowledge of another lawyer’s misconduct. This may prove to be difficult because, when considering the possible misconduct of another lawyer or judge, a lawyer may be faced with uncertainty over both the facts and the relevant law. The questions of when a lawyer “knows” something can be particularly fraught in connection with the misconduct of others because it requires both legal and factual determinations. “Misconduct” has a relatively straightforward definition in SCR 20:8.4, but when a lawyer has “knowledge” of misconduct is more difficult to determine.^[4]

SCR 20:1.0(g) defines “knows” as “actual knowledge of the fact in question,” and further notes that knowledge “may be inferred from circumstances.” This seemingly circular definition (a lawyer knows when the lawyer has knowledge) is not immediately helpful in determining when a lawyer knows that another lawyer or judge has committed misconduct. While it seems clear from the requirement of “actual knowledge” that suspicion will not suffice, it does not reveal what degree of certainty is sufficient to constitute knowledge. This puts the lawyer in the difficult position of trying to determine whether they have actual knowledge of both the facts and the relevant law. That said, SCR 20:1.0(g) states that a lawyer’s knowledge can be inferred from the circumstances. Further, knowledge is to be judged from the standpoint of a lawyer. As explained in Section 1.24 of The Law Governing Lawyers (Hazard, Hodes and Jarvis, 4th Ed.):

“Apart from moral bases of responsibility, lawyers must also consider the problem of ‘what a lawyer knows’ from the pragmatic viewpoint of self-protection, as intimated above. After the fact, a lawyer’s conduct will be assessed according to a legal standard that assumes a lawyer can ‘know’ the truth of a situation, even if he cannot be absolutely sure. Even the criminal law, after all, does not require absolute certainty; it requires only a conclusion that is beyond a reasonable doubt. As noted earlier in this section, the law of lawyering as set forth in Model Rule 1.0 permits a disciplinary authority to ‘infer from circumstances’ that a lawyer knows what a reasonable person would know. Moreover, the law takes account of a lawyer’s legal training and experience in assessing his state of mind. A lawyer is an adult, a man or woman of the world, not a child. He is also better educated than most people, more sophisticated and more sharply sensitized to the legal implications of a situation. The law will make inferences as to a lawyer’s knowledge with those considerations in mind.”

There are no explanatory comments in either SCR 20:1.0(g) or SCR 20:8.3 which help to explain the knowledge standard, nor is there any Wisconsin case law on point. There are, however, cases and ethics opinions from other jurisdictions. In Attorney U v. the Mississippi Bar,^[5] the Mississippi Supreme Court reviewed various ethics opinions and other secondary authorities, discussing at length the difference between suspicion, reasonable belief and knowledge, and is worth reading in full. After considering these sources, the court arrived at the following definition of knowledge for purposes of Rule 8.3:

“U would have this court define ‘actual knowledge’ as ‘personal knowledge.’ Only if a lawyer had such knowledge as would enable him to testify as a witness that another lawyer had violated the Rules of Professional Conduct would he have to inform the proper authorities. We believe that a higher standard may be fairly inferred to be required. That standard must be an objective one, however, not tied to the subjective beliefs of the lawyer in question. The supporting evidence must be such that a reasonable lawyer under the circumstances would have formed a firm opinion that the conduct in question had more likely than not occurred and that the conduct, if it did occur, raises a substantial question as to the purported offender’s honesty, trustworthiness or fitness to practice law in other respects.” (Footnotes omitted)

Other attempts to define knowledge illustrate the difficulty of this question.^[6] Another useful discussion can be found in Louisiana Ethics Op. 06-RPCC-010 (2006), which discusses In re Riehlman, 891 So.2d 1239 (La. 2004)[:]

“An absolute certainty of ethical misconduct is not necessary to trigger the reporting requirement; yet, a lawyer must base his report on more than a mere suspicion of improper behavior. The Riehlmann Court held that ‘…a lawyer will be found to have knowledge of reportable misconduct, and thus reporting is required, where the supporting evidence is such that a reasonable lawyer under the circumstances would form a firm belief that the conduct in question had more likely than not occurred...’ The standard of determining ‘knowledge’ is measured objectively and not according to the subjective beliefs of the lawyer reporting the misconduct.

In some cases, a lawyer will not have clear and convincing evidence of a colleague’s wrongdoing. The Rule relaxes the standard of certainty to one in which a reasonable lawyer could infer that improper behavior more than likely occurred. It is important to keep in mind, however, that a report of misconduct should not be based on a mere suspicion. A lawyer should have a legitimate degree of knowledge of another’s misconduct in order to file a report with the Office of Disciplinary Counsel.” (footnotes omitted)

Further opinions and case law can be cited, but it may be said that general consensus appears to be that a lawyer has knowledge of another lawyer’s misconduct when the lawyer has a firm opinion or belief that it is more likely than not, based upon facts and circumstances as known at the time, that another lawyer has violated one or more rules.^[7] This is essentially the position of the Restatement §5, comment i, which discussed the knowledge requirement as follows:

“The requirement applies when a lawyer has knowledge, which may be inferred from the circumstances (see Comment d). Knowledge is assessed on an objective standard. It includes more than a suspicion that misconduct has occurred, and mere suspicion does not impose a duty of inquiry. Compare § 11 (duties of supervision). Knowledge exists in an instance in which a reasonable lawyer in the circumstances would have a firm opinion that the conduct in question more likely than not occurred.”

In the opinion of the committee, the position of the Restatement best represents the knowledge requirement.

A lawyer has knowledge of another lawyer’s misconduct when the lawyer has a firm belief that the misconduct more likely than not occurred. This means that the lawyer must have a firm belief, grounded on articulable facts, that the conduct in question occurred or is occurring and that the conduct meets the definition of misconduct as set forth in SCR 20:8.4. This definition does not mean the lawyer has certainty that misconduct occurred, but the lawyer likewise may not close their eyes to the obvious or actively seek to avoid knowledge. Suspicion alone does not trigger mandatory reporting, nor does it trigger a duty of further inquiry. Thus, a lawyer who believes that another lawyer’s conduct may be questionable, but is uncertain, does not have a duty to report nor must the lawyer conduct further inquiry into the conduct of the lawyer in question.^[8]

2) The rule requires reporting of misconduct that raises a substantial question as to a lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects. SCR 20:8.3(a) does not require the reporting of all known misconduct. Rather, the rule only requires the reporting of misconduct that raises a substantial question as to the other lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects. The language of the rule itself does not define what type of misconduct raises a “substantial question” as to a lawyer’s fitness, ABA Comment [3], however, provides as follows:

“If a lawyer were obliged to report every violation of the Rules, the failure to report any violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term ‘substantial’ refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances. Similar considerations apply to the reporting of judicial misconduct.”

This makes plain that a lawyer is not required to report instances of minor misconduct that do not call into question a lawyer’s fitness. Types of misconduct that have been found not to raise a substantial question about the lawyer’s fitness as a lawyer include the fact that a lawyer has acknowledged providing ineffective assistance of counsel,^[9] missing deadlines for the filing of final divorce judgments,^[10] ex parte contact with a judges clerk on a housekeeping matter^[11] or mistakes or isolated instances of neglect.^[12] Similarly, mistakes properly attributable to a new lawyer’s lack of experience may not raise a substantial question about that lawyer’s fitness to practice law.

Examples of misconduct requiring reporting include knowingly undertaking a representation involving a conflict of interest,^[13] a grossly excessive fee in a simple uncontested matter,^[14] a violation of confidentiality involving self-dealing,^[15] sexual relations with a client^[16] and intentionally false advertising.^[17]

Any sort of misconduct involving intentional deceit or misrepresentation, such as backdating documents, falsifying signatures or conversion of trust account funds will trigger the duty to report because such conduct raises a substantial question as to honesty and trustworthiness. Similarly, misconduct involving the solicitation or presentation of false evidence will almost always justify a report, as such conduct implicates the integrity of our legal system and the veracity of the results it produces.

As to other misconduct, the rule states that reporting is required when the misconduct raises a substantial question of the lawyer’s “honesty, trustworthiness or fitness as a lawyer in other respects.” The committee believes that this language is intended to focus the inquiry on someone’s fitness as a lawyer. A lawyer who makes an important mistake, such as missing a deadline, in a specific matter may have failed to provide competent representation in that matter and the consequences to the affected client may be severe, but the lawyer herself may still be capable and have simply made a mistake. Similarly, it is possible that a lawyer may make a misstatement of law or fact that is simply the result of an innocent mistake and thus does not warrant a report. On the other hand, a series of minor but consistently recurring errors may reflect adversely on the lawyer’s fitness, demonstrating a repeated failure to conform to the requirements of minimally competent representation, and thus trigger the reporting requirement.

Lawyers are fiduciaries of clients’ information, property, and trust and also officers of the court, and conduct that evinces a willingness to betray a client’s trust or an intentional disregard for the rules or law would normally trigger the duty to report.

Ultimately, resolution of this question requires judgment from the lawyer, but given the importance of self-regulation by the legal profession, lawyers should normally err on the side of reporting.

3) The duty to report is subordinate to the duty of confidentiality owed to current and former clients. The duty of confidentiality lawyers owe to their current and former clients is exceptionally broad, and there may be many circumstances in which the duty of confidentiality may conflict with the duty to report. This is explicitly recognized in SCR 20:8.3(c), which provides as follows:

“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.”

Thus, by rule, a lawyer’s duty to report is subordinate to the duty of confidentiality owed to clients. For this reason, a lawyer must determine whether a report would require the lawyer to disclose information that relates to the representation of a current or former client, which is protected under SCR 20:1.6. The scope of information protected by SCR 20:1.6 is discussed in Wisconsin Formal Ethics Opinion EF-17-02:

“SCR 20:1.6 is noteworthy in that it does not categorize information as ‘confidential’ and ‘non-confidential’ information – it simply prohibits lawyers from revealing information relating to the representation of a client. It is therefore necessary to determine the scope of ‘information relating to the representation of a client’ and whether client identity falls within this category.

While the Rule itself does not define ‘information relating to the representation of a client, Comment [3] states, ‘The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.’ Thus, information received from third parties, learned from opposing parties or gathered from other sources is protected, provided that the information relates to the representation of the client.”

As further discussed in EF-17-02, two other points bear mentioning. First, whether information may be subject to the lawyer-client privilege is not relevant to the analysis, only whether the information relates to the representation of a current or former client.^[18] Second, the protections of SCR 20:1.6 apply to information that has been disclosed to third parties or is otherwise publicly available, as long as it relates to the representation of a client.^[19]

It is likely that in most instances where lawyers learn of the misconduct of other lawyers it will be in connection with the representation of a client, and therefore the information concerning that misconduct will be protected by SCR 20:1.6. If so, SCR 20:8.3(c) imposes an affirmative duty to consult with the client about the lawyer’s duty to report. The Wisconsin Comment to the rule discusses that obligation as follows:^[20]

“A lawyer who consults with a client pursuant to subsection (c) should not discourage a client from consenting to reporting a violation unless the lawyer believes there is a reasonable possibility that it would compromise the attorney-client privilege or otherwise prejudice the client. Lawyers should also be mindful of the obligation not to use the threat of a report as a bargaining chip (see Wisconsin Ethics Opinion E-01-01) and the obligation not to seek to contractually limit a person from reporting professional misconduct. See SCR 20:1.8 (h) (3).”

Such a consultation should normally begin with an explanation that the lawyer believes she has a duty to report another lawyer and the reasons therefore, with a further explanation that the lawyer may not make the report without the informed consent, as required by SCR 20:1.6(a), of the client. “Informed consent” is defined by SCR 20:1.0(f) as follows:

“‘Informed consent’ denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

It is important to note here that obtaining the informed consent of the client requires a discussion of the “material risks” of a proposed course of conduct Therefore, a lawyer must discuss with a client the possible adverse consequences to the client in making the report. ABA Formal Ethics Opinion 04-443 (2004) provides useful guidance on this subject:

“If the lawyer determines that the information necessary to report the misconduct is protected by Rule 1.6, what should the lawyer do? Comment [2] to Rule 8.3 entreats a lawyer to ‘encourage a client to consent to disclosure where prosecution would not substantially prejudice the client’s interests.’ Any discussion of consent to disclosure, therefore, must include the potential adverse impact that disclosure may have on the client, including the effect on the client’s ultimate recovery in a malpractice action, for example.

Clients may have a variety of reasons for not wanting to consent to disclosure of information. For example, they may be embarrassed by the matter, hesitant to become entangled in the controversy, or simply want the matter to come to an end. As a practical matter, there may be little benefit for the client in consenting to report the misconduct to the disciplinary authorities.” (footnotes omitted)

Given that a report to the disciplinary agency is a separate matter from any action pending before a tribunal, it is important that clients understand that making a report is almost certain to have no effect on the underlying matter, as the disciplinary agency does not have authority to intervene in the underlying matter. What this means practically for clients is that they cannot expect the report to result in things like opposing counsel being disqualified, the judicial officer ruling in a certain way or any other tangible effect in the matter. It is important that the lawyer explains to the client clearly that the disciplinary process will not affect the outcome of their case.

Sometimes this puts the lawyer in a position of explaining to the client the duty to report, and that such a report will not result in any perceived benefit to the client in the matter, but that the lawyer who is subject of the report will be notified,^[21] perhaps making that lawyer more antagonistic. This may cause the client to question why they would give consent in such circumstances. The lawyer should normally explain to the client the lawyer self-regulation serves an important purpose in protecting the public apart from any effect on a specific case. Nonetheless, when appropriate, the lawyer may suggest that the client delay consent to the report until the underlying matter is concluded if that is consistent with protecting the client’s interests in the matter.^[22]

In most situations the risks to clients in making a report will be minimal, and many clients will be eager to report the lawyer. But when the risks are low and the client hesitant, the lawyer should strongly urge the client to consent. Without such consent, however, a report that discloses information protected by SCR 20:1.6 violates that rule and the lawyer must abide by the client’s decision not to report.

4) If the lawyer does not believe a mandatory duty to report exists, the lawyer may still have duties to inform any affected client. A lawyer may in good faith believe that another lawyer or judge may have committed misconduct, but that it does not raise a substantial question about fitness. Or the lawyer may lack the degree of certainty necessary to constitute “knowledge.” That may relieve the lawyer of a mandatory duty to report, but the lawyer must evaluate whether the perceived misconduct has impacted the case of any client.

SCR 20:1.4 requires lawyers to keep clients reasonably apprised of the status of a matter and to provide sufficient information to clients to make informed decisions about the matter. The lawyer must consider whether SCR 20:1.4 requires the lawyer to discuss the possible misconduct with the client. Obviously, in such situations the lawyer must explain any potential impact on the client’s matter, and client’s option to file a grievance against the lawyer.^[23] This discussion should include any reasonably foreseeable consequences of filing a grievance, but because the lawyer does not have a duty to report the other lawyer themselves, they need not assist the client in so doing if the lawyer does not wish.

A lawyer also is not prohibited from reporting possible misconduct even in the absence of a mandatory duty to do so. Of course, the lawyer must still have a reasonable basis to believe that misconduct has occurred and, if necessary, obtain the informed consent to disclose any information protected by SCR 20:1.6.

5) The threat of a report may not be used as a bargaining chip. As discussed above, SCR 20:8.3 often requires consultation with a client and the client’s informed consent before a report may be made, even though the lawyer believes she has a mandatory duty to report. Clients in certain situations may ask the lawyer to use the threat of a report to gain advantage in the matter. In Wisconsin Formal Ethics Opinion EF-21-01, the committee addressed whether a lawyer may use the threat of a report, or an agreement not to report, the misconduct of another lawyer to gain advantage in a matter:

“The committee reaffirms that position in consideration of the current Rules. In 2001 when Formal Opinion E-01-01 was drafted, there was no express prohibition in the Rules on using the threat of reporting a lawyer’s conduct to disciplinary authorities, but that opinion relied on lawyer’s mandatory duty to report serious misconduct under SCR 20:8.3, and lawyer’s obligations in ‘not advancing claims or factual positions that the lawyer knows are frivolous, SCR 20:3.1; not using means that have no substantial purpose other than to embarrass, delay, or burden a third person, SCR 20: 4.4; or engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, SCR 20:8.4(c).’ Those obligations continue to exist, but an express prohibition now exists in the rules. SCR 20:1.8(h)(3) prohibits lawyers from making ‘an agreement that limiting a person’s right to report the lawyer’s conduct to disciplinary authorities.’ Moreover, every lawyer has a mandatory duty to ‘cooperate with the office of lawyer regulation in the investigation, prosecution and disposition of grievances.’ Thus, offering or making any agreement that purports to limit any person’s right to report a lawyer to the disciplinary authorities, such as an agreement to refrain from reporting misconduct if certain demands are met, is itself misconduct.” (footnotes omitted)

This prohibition on the use of a threat to report misconduct to gain advantage is the position of other jurisdictions^[24] and is widely accepted despite the lack of language in SCR 20:8.3 explicitly prohibiting the practice.^[25]

It should also be noted here that SCR 20:1.8(h)(3) prohibits a lawyer from “making an agreement that limits a person’s right to report the lawyer’s conduct to disciplinary authorities” irrespective of whether a client wishes to make such an agreement as part of the settlement of a dispute. Further, SCR 20:8.4(a) makes it misconduct for a lawyer to assist or induce another in violating the Rules. Thus, any attempt to make an agreement in which a client agrees contractually to not report a lawyer’s misconduct violates the rules.

6) The duty to report applies to misconduct unrelated to the practice of law. SCR 20:8.3 contains no exception for conduct unrelated to the practice of law, and conduct such as securities or tax fraud, that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer must be reported irrespective of whether the conduct is related to the practice of law.^[26]

Lawyers are subject to the rules at all times by virtue of their admission to the Bar, and therefore may commit misconduct regardless of whether the lawyer is engaged in the practice of law.^[27] While many Rules, such as those requiring diligence (SCR 20:1.3) and communication (SCR 20:14) are client specific, others, such as the rules prohibiting misrepresentation [SCR 20:8.4(c)] and criminal conduct [SCR 20:8.4(b)] apply at all times. SCR 20:8.3 contains no exception for the conduct of non-practicing lawyers. In Formal Ethics Op. 04-443 (2004), the ABA’s ethics committee opined as follows:

“We interpret Rule 8.3 as requiring a lawyer to report professional misconduct committed at any time by a licensed but non-practicing lawyer. Even misconduct arising from purely personal activity must be reported if it reflects adversely on the lawyer’s fitness to practice law. A lawyer violates the Model Rules and is subject to professional discipline when she fails to report such professional misconduct, in circumstances in which Rule 8.3 requires such reports.

The committee agrees with this analysis.”

7) The duty to report applies to misconduct committed by suspended, inactive or non-practicing lawyers. The duty to report also applies to misconduct committed by suspended, inactive, or non-practicing lawyers as all such lawyers are still members of the Bar. Suspended lawyers, whether for disciplinary or administrative reasons, at some point will be eligible to seek reinstatement, and misconduct committed during the period of suspension will be relevant at that time.^[28] Likewise, inactive lawyers may seek to transfer back to active status. If a lawyer has resigned from the Bar and thus is no longer a lawyer, there can be no misconduct as defined by SCR 20:8.4 because that person is no longer bound by the rules.

8) The duty to report applies to misconduct that may be the result of the lawyer’s impairment. Lawyers who suffer from substance abuse or some other form of impairment may engage in misconduct that seems intricately connected to the impairment, and the question arises as to whether a lawyer must report the impaired lawyer. The fact that misconduct may be the result of a lawyer’s impairment, whether by substance abuse, mental illness, or some other reason, does not eliminate the duty to report. The ABA reached this conclusion in Formal Ethics Op. 03-341 (2003) stating as follows:

“… a lawyer’s failure to withdraw from representation while suffering from a condition materially impairing her ability to practice, as required by Rule 1.16(a)(2), ordinarily would raise a substantial question requiring reporting under Rule 8.3.

When considering his obligation under Rule 8.3(a), a lawyer should recognize that, in most cases, lack of fitness will evidence itself through a pattern of conduct that makes clear that the lawyer is not meeting her obligations under the Model Rules, for example, Rule 1.1 (Competence) or Rule 1.3 (Diligence). A lawyer suffering from an impairment may, among other things, repeatedly miss court deadlines, fail to make filings required to complete a transaction, fail to perform tasks agreed to be performed, or fail to raise issues that competent counsel would be expected to raise. On occasion, however, a single act by a lawyer may evidence her lack of fitness.” (footnotes omitted)

The ethics committees of various state bars have agreed with this position.^[29]

It is important to note, however, that SCR 20:8.3 does not impose an obligation to report the mere fact of the impairment, only misconduct resulting from the impairment that raises a substantial question about the lawyer’s fitness. For example, there is no obligation to report a lawyer with a substance abuse problem when no accompanying misconduct is known. Nor is there a duty to report an impaired lawyer who takes steps, such as seeking treatment, reducing workload or if necessary, temporarily ceasing to practice, to avoid serious misconduct. If, for example, the impairment prevents the lawyer from being able to provide competent representation and the lawyer nonetheless continues practicing law, then a report must be made. As discussed below, such a report must be made to the disciplinary agency.

9) What about the misconduct of other lawyers in a firm? SCR 20:8.3 contains no exceptions for one’s partners or associates in a law firm, and misconduct by a member of one’s firm that meets the criteria must be reported. Such a situation can, however, pose special problems that may be particularly acute for a subordinate lawyer, such as an associate, who becomes aware of the misconduct of a partner or other senior lawyer. If the associate has done the analysis under SCR 20:8.3 and has concluded that the duty to report a partner has arisen, direction of another partner in the firm or the firm’s management not to make the report does not excuse the associates from reporting, and, if necessary, consulting with the firm’s client. SCR 20:5.2, which governs the responsibilities of subordinate lawyers, provides as follows:

“(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.

(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.”

SCR 20:5.2(a) thus explicitly requires that the associate make a required report even if directed not to do so.^[30] Moreover, in most cases, the associate has an independent duty to inform the affected client of the misconduct in addition to the consultation required. Pursuant to SCR 20:1.4, lawyers have a duty to promptly inform the clients with respect to all matters requiring the client’s informed consent and to ensure that clients have sufficient information in order to make informed decisions about the representation. Thus, for example, an associate must inform a client of a partner’s falsified copies of correspondence^[31] or of a partner’s intentionally false statements to federal agencies made for the client’s benefit^[32] because such information is necessary to keep the client reasonably informed about the status of the matter.

The question then arises as to whether the associate would have any recourse if fired for abiding by their obligations under the rules. Because the answer to that question depends on other bodies of law, such as employment law, that question is beyond the scope of this opinion. That said, there is some case law from other jurisdictions holds that lawyers’ employment contracts contain an implied term allowing compliance with the rules, including the duty to report.^[33] There is, however, some case law to the contrary.^[34] Wisconsin courts have not addressed this issue, but have voided contracts that are in conflict with lawyer’s professional responsibilities.^[35]

10) The report must be made to the disciplinary agency. SCR 20:8.3(a) requires that the report be made to the “appropriate professional authority.” Comment [3] states that the report should be made to the “bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate under the circumstances.” In Wisconsin, the “bar disciplinary agency” is the Office of Lawyer Regulation (“OLR”), and reports arising under SCR 20:8.3 must be made to the OLR.^[36] The question remains however, as to what other agency might be appropriate and in what circumstances?

This often arises in connection with lawyers whose impairment is seemingly the cause of the misconduct at issue. In such circumstances, a lawyer may wish to report the lawyer to the Wisconsin Lawyer’s Assistance Program (“WisLAP”) rather than the OLR. While there is no Wisconsin authority on this question, other states have consistently opined that 8.3 reports must be made to disciplinary agencies, not lawyer assistance programs.^[37] This is because the purpose of the disciplinary rules is to protect the public and clients, and disciplinary agencies are charged with protecting the public from lawyer’s misconduct, regardless of what caused that misconduct. Lawyer assistance programs, on the other hand, exist to provide aid to the impaired lawyer and lack the disciplinary agency’s authority to suspend a lawyer’s license or impose conditions on a lawyer’s practice and are thus not in a position to perform the function of protecting the public.

The fact that a report to a lawyer’s assistance program does not suffice to fulfill a lawyer’s duty under SCR 20:8.3 does not mean that such a referral should not be made along with the report to the disciplinary agency. Such dual reporting is certainly permissible and may be appropriate in some circumstances, with client informed consent if necessary.

If the misconduct occurs in connection with proceedings before a court or other tribunal, the question arises as to whether a report to the court suffices to discharge a lawyer’s duty under SCR 20:8.3. Again the answer is no.^[38] This is because, like lawyer assistance programs, trial courts do not have the authority to enforce disciplinary Rules.^[39]

There is scant authority that a report to any agency other than the state lawyer disciplinary agency suffices under Rule 8.3 – what little there is tends to involve very unusual situations, such as with respect to lawyers who must abide by certain federal regulations in their practice.^[40] Whether an additional report must or should be made to another agency, other than the OLR, is dependent on the facts of each situation, but the report to OLR is what is needed to fulfill the lawyer’s obligation under SCR 20:8.3. Further, if a lawyer is licensed in multiple states, the report must be made to the disciplinary authority of each state in which the lawyer is licensed as well as the state in which the conduct occurred.^[41]

11) The report should be made in a timely fashion, consistent with protecting the interests of any affected client. There is no mention of when a report must be made in the language of SCR 20:8.3, nor is there any reference to a time frame in the comments to the rule. A five-year delay has, unsurprisingly, been found to be too long,^[42] as has nine months.^[43] On the other hand, a delay of three weeks has been found to be acceptable.^[44]

Some discussions of the timing issue have stated that the report should be made promptly,^[45] or within a reasonable time under the circumstances.^[46] The committee believes that the report should be made as promptly as possible, consistent with the interests of the client. Because SCR 20:8.3 already gives the client the ability to veto any report that discloses information protected by SCR 20:1.6, it stands to reason that some delay, such as to the end of litigation or negotiations, so as to not prejudice the client’s interests is permissible. However, delay to serve the lawyer’s interests, or if there is no client involved, is not permitted by the rule.

12) A lawyer is not required to report their own misconduct. SCR 20:8.3 does not impose a duty to self-report. By its plain language, the rule imposes a reporting requirement only when a lawyer knows that “another lawyer” has committed misconduct that raises a substantial question about that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects. There is no language in SCR 20:8.3 that requires a lawyer to report their own misconduct and thus no self-reporting requirement in Wisconsin.^[47] There are, however, two special circumstances in which a lawyer must report their own conduct to the OLR.

First, pursuant to SCR 21:1.15(5), any Wisconsin lawyer found guilty of or convicted of a crime must notify the OLR and the Clerk of the Supreme Court of the conviction within five days. Failure to make this required report is misconduct itself.

Second, pursuant to SCR 22.22(1), a Wisconsin lawyer who is also licensed in another jurisdiction must report any public discipline or medical incapacity suspension imposed in another jurisdiction within 20 days. Again, failure to make this required report is misconduct.

13) Exceptions to the duty to report. There are two specific exceptions to the duty to report. SCR 20:8.3(d) provides as follows:

“(d) This rule does not require disclosure of any of the following:

(1) Information gained by a lawyer while participating in a confidential lawyers’ assistance program.

(2) Information acquired by any person selected to mediate or arbitrate disputes between lawyers arising out of a professional or economic dispute involving law firm dissolutions, termination or departure of one or more lawyers from a law firm where such information is acquired in the course of mediating or arbitrating the dispute between lawyers.”

The comments to the rule provide guidance with respect to these exceptions. The Wisconsin Comment states:

“Paragraph (d)(1) differs slightly from the Model Rule. It deletes reference to judges. The reference to confidential lawyers’ assistance programs includes programs such as the state bar sponsored Wisconsin Lawyers’ Assistance Program (WISLAP), the Law Office Management Assistance Program (LOMAP), or the Ethics Hotline.”

Comment [5] further provides:

“Information about a lawyer’s or judge’s misconduct or fitness may be received by a lawyer in the course of that lawyer’s participation in an approved lawyers’ or judges’ assistance program. In that circumstance, providing for an exception to the reporting requirements of paragraphs (a) and (b) of this Rule encourages lawyers and judges to seek treatment through such a program. Conversely, without such an exception, lawyers and judges may hesitate to seek assistance from these programs, which may then result in additional harm to their professional careers and additional injury to the welfare of clients and the public. These Rules do not otherwise address the confidentiality of information received by a lawyer or judge participating in an approved lawyers’ assistance program; such an obligation, however, may be imposed by the rules of the program or other law.”

While the rule does not define specifically what is meant by a “confidential lawyers’ assistance program,” the Wisconsin Comments reference to three State Bar programs (WisLAP, LOMAP and the Ethics Hotline) reinforce the notion put forth in Comment [5] that these programs are official or semi-official programs which assist lawyers and promise confidentiality. It has long been held that lawyers who participate in lawyers’ assistance programs do not have a duty to report the misconduct of lawyers to whom assistance is being provided, and the explicit recognition of other confidential assistance programs is in keeping with the policy behind providing the exception, i.e. encouraging participation in beneficial programs by eliminating the fear of a disciplinary report. The second exception for those who mediate or arbitrate disputes between lawyers rests upon similar policy considerations.

Also, lawyers representing other lawyers are not required to report their clients. See SCR 20:8.3, Comment [4].

14) Lawyers must report misconduct as required by SCR 20:8.3 even if they believe the misconduct has been reported by others. The rule itself contains no exception for misconduct that may have been reported by others and opinions from other jurisdictions have held that if the lawyers must report even if they believe the misconduct has been reported by others.^[48] The committee agrees with this position.

15) The duty to report applies to misconduct committed by judges. SCR 20:8.3(b) explicitly requires the reporting of misconduct by judges subject to the same analysis discussed above. The only differences are that in Wisconsin, judges conduct is governed by Chapter 60 of the Supreme Court Rules (the Code of Judicial Conduct) and judges’ misconduct must be reported to the Judicial Commission rather than the OLR.

Conclusion

The duty to report under SCR 20:8.3 is not absolute, and lawyers considering the possible serious misconduct of another lawyer or judge must inform themselves of what is required by the rule and the possible effects on any client.

Endnotes

[1] SCR 20:8.4 states: “It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law;
(e) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or
(f) violate a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers;
(g) violate the attorney’s oath;
(h) fail to cooperate in the investigation of a grievance filed with the office of lawyer regulation as required by SCR 21.15(4), SCR 22.001(9)(b), SCR 22.03(2), SCR 22.03(6), or SCR 22.04(1); or
(i) harass a person on the basis of sex, race, age, creed, religion, color, national origin, disability, sexual preference or marital status in connection with the lawyer’s professional activities. Legitimate advocacy respecting the foregoing factors does not violate par. (i).” ↩

[2] Chapter 60 is the Code of Judicial Conduct. ↩

[3] See SCR 20:8.3, ABA Comment [1]. ↩

[4] Judicial misconduct is governed by Chapter 60 of the SCRs. ↩

[5] 678 So.2d 963 (1996). ↩

[6] See e.g., Vermont Ethics Op. 2004-1 (“knowledge” as used in the Code exists where the acts and circumstances of which an attorney is aware give rise to a “good faith or substantial belief on the part of the attorney ... that a violation has occurred.); Texas Ethics Op. 520 (1997) (A report of misconduct must be based upon such objective facts that are likely to have evidentiary support). ↩

[7] It is worth noting that SCR 20:1.6(b) requires a lawyer to reveal, if necessary, otherwise confidential information to prevent the client from committing a criminal or fraudulent act the lawyer reasonably believes is likely to result in death or substantial injury to another. Therefore, the Rule that requires a lawyer to report a client uses a “likely” standard. ↩

[8] This assumes that competent representation of an affected client does not require such inquiry. ↩

[9] See Arizona Ethics Op, 98-02 (1998). ↩

[10] See Rhode Island Ethics Op. 2006-04. ↩

[11] See Connecticut Informal Ethics Op. 94-33 (1994). ↩

[12] See Texas Ethics Op. 523 (1997). ↩

[13] See Missouri Informal Ethics Op. 2005-0051 and Virginia Ethics Op. 1785 (2003). ↩

[14] See New Mexico Ethics Op. 2005-2. ↩

[15] See South Carolina Ethics Op. 02-15 (2002). ↩

[16] See Kansas Ethics Op 94-13 (1994). ↩

[17] See Missouri Informal Ethics Op. 2006-0074. ↩

[18] Attorney client privilege essentially protects communications between a lawyer and a client, and sometimes certain third parties, made for the purpose [of] facilitating legal representation and intended to be confidential. See [Wis. Stat.] 905.03. By contrast, SCR 20:1.6 applies “not only matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.” Much information relating to the representation of a client is normally not covered by the attorney-client privilege but nonetheless is confidential. See Wis. Eth. Op EF-17-02. ↩

[19] See ABA Formal Ethics Op. 04-430: “We also note that Rule 1.6 is not limited to communications protected by the attorney-client privilege or work-product doctrine. Rather, it applies to all information, whatever its source, relating to the representation. Indeed, the protection afforded by Rule 1.6 is not forfeited even when the information is available from other sources or publicly filed, such as in a malpractice action against the offending lawyer.” See also Disciplinary Proceedings against Harman, 244 Wis.2d 438, 628 N.W.2d 351 (2001). ↩

[20] Whether disclosure of otherwise privileged communications to the disciplinary agency waives the privilege is beyond the scope of this opinion. There is case law from other jurisdictions, however, that holds that disclosures made by lawyers pursuant to exceptions to the confidentiality rule do not waive the privilege. See e.g., Newman v. Maryland, 863 A.2d 321 (Md. 2004). ↩

[21] The Office of Lawyer Regulation is normally required to notify a lawyer that a grievance has been filed against them. See SCR 22.03(2). ↩

[22] See e.g., South Carolina Ethics Op. 16-04 (2016). ↩

[23] Lawyers have a mandatory duty to refer persons wishing to file a grievance to the Office of Lawyer Regulation. See SCR 21.15(3). ↩

[24] See e.g., Pearson v. Linden Lumber Co, 2006 WL 997153 (S.D. Ala. 2006); In re Pyle, 91 P.3d 1222 (Kan. 2004); In re Eicher, 661 N.W.2d 354 (S.D. 2003); ABA Formal Ethics Op. 94-343 (1994); North Carolina Formal Ethics Op. 84 (1990). ↩

[25] Some states, such as Connecticut, do prohibit this by Rule. ↩

[26] See Kathryn Tate, The Boundaries of Professional Self-Policing: Must a Law Firm Prevent and Report a Firm Member’s Securities Trading on the Basis of Client Confidences?, 40 U.K.C.L. Rev. 807 (1992) and ABA Formal Op. 04-443 (2004). ↩

[27] See State v. Preston, 38 Wis.2d 582, 157 N.W.2d 615 (1968); State v. Posterino, 53 Wis.2d 412, 193 N.W.2d 1 (1972). ↩

[28] See Philadelphia Ethics Op. 2003-14. ↩

[29] See South Carolina Ethics Op 02-13 (2002); Utah Ethics Op. 98-12 (1998). ↩

[30] In some circumstances, SCR 20:5.2(b) may allow an associate to rely on a partner’s reasonable decision that certain conduct does not violate a rule or does not raise a substantial question about a lawyer’s fitness as a lawyer. For example, an associate may rely on a partner’s decision that a representation does not involve a conflict, as long as that decision is reasonable. ↩

[31] See District of Columbia Ethics Op. 270 (1997). ↩

[32] See Massachusetts Ethics Op. 99-2 (1999). ↩

[33] See Weider v. Skala, 80 N.Y.2d 628, 609 N.E.2d 628 (1992). ↩

[34] See Jacobson v. Knepper & Moga, 706 N.E.2d 491 (Ill. 1998). ↩

[35] See Abbott v. Marker, 295 Wis.2d 636, 722 N.W.2d 162 (Wis. App. 2006). But see also Sands v. Menard, 2017 WI 110. ↩

[36] Note that the OLR has no connection with the State Bar of Wisconsin, which has no role in lawyer discipline, and reports of misconduct may not be made to the State Bar. ↩

[37] See Utah Ethics Op. 98-12 (1998); ABA Formal Ethics 03-431 (2003). ↩

[38] See Skolnick v. Altheimer & Gray, 730 N.E.2d 4 (Ill. 2000); Ohio Ethics Op. 2007-1. ↩

[39] The committee notes that various rules permitting courts to sanction lawyers, including certain rules in the Wisconsin Rules of Civil Procedure as well as local court rules, contain language similar to the disciplinary rules, such as rules requiring candor to the tribunal and prohibiting false statements of fact or law. While these rules allow courts to address misconduct occurring in their courtrooms or in matters before them, they are not part of the system of self-regulation of our profession. ↩

[40] See Iowa Ethics Op. 97-30 (1998). ↩

[41] See Mississippi Ethics Op. 247 (2000). ↩

[42] See In re Riehlmann, 891 So.2d 1239 (La. 2005). ↩

[43] See In re Anderson, 769 A.2d 1282 (Vt. 2000). ↩

[44] See In re Comfort, 159 P.3d 1011 (Kan. 2007). ↩

[45] See New York City Ethics Op.1990-3. ↩

[46] See United States v. Cantor, 897 F.Supp 110 (S.D.N.Y 1995). ↩

[47] Some other states, such as Kansas and Ohio, do not limit the reporting requirement to conduct of another lawyer. ↩

[48] See e.g., Kentucky Ethics Op. E-430 (2010) (obligation not satisfied because someone else has made a report); Maryland Ethics Op. 2003-11 (2003).↩