Opinion Tackles Timing of Duty to Report Misconduct

By Samson Habte

July 25 — A lawyer who believes an opposing attorney in a pending matter has committed professional misconduct may wait until the proceeding concludes to make a disciplinary report, the South Carolina bar's ethics committee advised in a July 18 opinion (S.C. Bar Ethics Advisory Comm., Op. 16-04, 7/18/16).

The opinion gave the committee an opportunity to clarify an ambiguity in South Carolina Rule of Professional Conduct 8.3(a)—which, like ABA Model Rule 8.3(a) and analogous provisions in every jurisdiction, requires lawyers to alert disciplinary authorities about suspected ethical breaches committed by other lawyers.

The ambiguity concerns the timing of the Rule 8.3(a) obligation—and, more specifically, whether a lawyer who believes opposing counsel in an ongoing matter has acted unethically may wait until the conclusion of the case before making a disciplinary report.

The committee acknowledged that Rule 8.3(a) “is silent” on the question of when a lawyer must report the misconduct of another attorney.

Responding to an inquiry from a lawyer who suspects an opponent acted unethically in a pending matter, the committee ultimately concluded that “immediate reporting” may not be required.

“Because the Rule is silent regarding the timing of such report, [the inquirer] may wait until the conclusion of the matter if [the inquirer] determines immediate reporting may hurt the client,” the committee said.

‘Promptly' Report—at End of Litigation

The committee stressed the importance, as a general matter, of promptly reporting suspicions that another attorney has committed professional misconduct.

Quoting In re Riehlmann, 891 So. 2d 1239, 21 Law. Man. Prof. Conduct 61 (La. 2005), the committee said:

The need for prompt reporting flows from the need to safeguard the public and the profession against future wrongdoing by the offending lawyer. The purpose is not served unless Rule 8.3(a) is read to require timely reporting under the circumstances presented.


But the committee went on to say that “it is appropriate for a lawyer to consider any potential adverse impact to his or [her] client in determining the timing of a report against another lawyer.”

Accordingly, the committee said the inquirer who prompted this opinion “may wait until the conclusion” of his client's matter before reporting the suspected misconduct of opposing counsel.

“However, the misconduct should be reported ‘promptly' at the conclusion of the litigation or appeal,” the committee concluded.

To contact the reporter on this story: Samson Habte in Washington at shabte@bna.com

To contact the editor responsible for this story: Ethan Bowers at sbowers@bna.com

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