RULE 8.3:  REPORTING PROFESSIONAL MISCONDUCT

Comment

[1] [Washington revision] Self-regulation of the legal profession requires that members of the profession, when they know of a violation of the Rules of Professional Conduct, initiate disciplinary investigation by reporting lawyer misconduct to the appropriate disciplinary authority. Lawyers have a similar obligation with respect to judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense.

[2] [Washington revision] A report about misconduct is prohibited if it would involve violation of Rule 1.6. However, a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client’s interests.

[3] [Washington revision] This Rule does not oblige a lawyer to report every violation of the Rules, but instead 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. And reporting is required only when a lawyer knows about reportable misconduct. See Rule 1.0(f) for the definition of “knows”; see Rule 1.0(l) for the definition of “substantial.” Similar considerations apply to the reporting of judicial misconduct.

[4] The duty to report professional misconduct does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question. Such a situation is governed by the Rules applicable to the client-lawyer relationship.

[5] [Washington revision] 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, the reporting requirements of paragraphs (a) and (b) of this Rule do not apply. Lawyers and judges should not hesitate to seek assistance from these programs in order to prevent additional harm to their professional careers and additional injury to the welfare of clients and the public. Admission to Practice Rule 19(b) provides that confidential communications between lawyer-clients and staff or peer counselors of the Lawyers’ Assistance Program (LAP) of the Washington State Bar Association are privileged. Likewise, Discipline Rule for Judges 14(e) provides that confidential communications between judges and peer counselors of the Judicial Assistance Committees of the various judges associations or the LAP are privileged.