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Ohio Legal Ethics Narrative
VIII Maintaining the integrity of the profession
Each of the three divisions of Ohio Rule 8.3 contains provisions different from the Model Rule. The differences are as follows:
Division (a): after "A lawyer who", Ohio substitutes "possesses unprivileged knowledge of" for the Model Rule language "knows that another lawyer has committed". After the insertion of "Ohio" before "Rules", Ohio division (a) deletes the word "substantial" before "question"; it further substitutes "any" for "that" before "lawyer's"; and it substitutes "a disciplinary authority empowered to investigate or act upon such a violation." for the Model Rule language "the appropriate professional authority."
Division (b): After "A lawyer who", Ohio substitutes "possesses unprivileged knowledge" for the Model Rule language "knows"; adds the words "the Ohio Rules of Professional Conduct or" after "violation of"; and deletes the Model Rule language "that raises a substantial question as to the judge's fitness for office" after "judicial conduct".
Division (c): This division has been completely rewritten. Ohio Rule 8.3(c) states:
Any information obtained by a member of a committee or subcommittee of a bar association, or by a member, employee, or agent of a nonprofit corporation established by a bar association, designed to assist lawyers with substance abuse or mental health problems, provided the information was obtained while the member, employee, or agent was performing duties as a member, employee, or agent of the committee, subcommittee, or nonprofit corporation, shall be privileged for all purposes under this rule.",
in lieu of the MR 8.3(c) language:
This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.
The following section of the Ohio Code of Professional Responsibility is listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 8.3: DR 1-103.
- Primary Ohio References: Ohio Rule 8.3(a)
- Background References: ABA Model Rule 8.3(a)
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 1.40-1.44, 1.47
- Commentary: ABA/BNA § 101:201, ALI-LGL § 5, Wolfram § 12.10
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 1.40-1.44, 1.47 (1996).
The duty to report - In general: Ohio Rule 8.3 addresses the duty of an attorney to report lawyer misconduct. Rule 8.3(a) deals with the duty of a lawyer to volunteer information about lawyer misconduct in certain circumstances and is discussed in this section. Rule 8.3(b) is concerned with reporting misconduct by judges and is discussed in section 8.3:300. Division (c) provides that information received by members, employees, and agents of lawyer-assistance organizations helping lawyers with substance abuse or mental-health problems is privileged under the Rule. Division (c) and the privilege issue as applied in Rule 8.3 matters is discussed in section 8.3:400. Rule 8.1(b) sets forth the duty to respond to demands from disciplinary authorities concerning another lawyer or judge and is discussed in section 8.1:400. Other provisions in the Rules contain reporting requirements not directly addressing lawyer misconduct, but possibly including it, such as Rule 3.3(b) (requiring disclosure of fraud or criminal conduct by a client or other person, relating to a proceeding before a tribunal) and Rule 3.5(b) (requiring disclosure, inter alia, of improper conduct directed toward jurors, prospective jurors, or their families). For a discussion of these provisions, see sections 3.3:610 and 3.5:500, respectively.
The idea underlying Ohio Rule 8.3 is that as part of a self-regulating profession lawyers should police the conduct of their peers, both because of a professional duty to promote the integrity of the profession and because, as a practical matter, they are in the best position to identify violations that occur. See, under the former OHCPR, Bd. of Comm'rs on Grievances & Discipline Op. 89-09, 1989 Ohio Griev. Discip. LEXIS 16 (Apr. 14, 1989).
The very first ethics advisory opinion considering and interpreting the OHRCP deals with Rule 8.3. This Opinion, Bd. of Commr's on Grievances & Discipline Op. 2007-1, 2007 Ohio Griev. Discip. LEXIS 1 (Feb. 9, 2007), will be referred to as appropriate throughout this discussion.
Comparison of Ohio Rule 8.3(a), MR 8.3(a), and former OH DR 1-103(A): The major differences from the Model Rule are (1) the Ohio Rule requires self reporting; MR 8.3(a) does not. (2) In Ohio the modifier "substantial" before "question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects" has been deleted. (This change is noted, but not explained, in the Task Force's Ohio Code Comparison to Rule 8.3.) (3) The Ohio Rule excepts "privileged knowledge" from the disclosure requirement; in the Model Rule, the exception is phrased in terms of "information otherwise protected by Rule 1.6." MR 8.3(c). See discussion at section 8.3:400. Read literally, the former Code provision, OH DR 1-103A, required self-reporting (but see Ohio Code Comparison to Rule 8.3, discussed below). DR 1-103(A) also called for reporting of any violation, not just those raising a question as to honesty, trustworthiness, or fitness in other respects.
The misconduct that must be reported: Ohio Rule 8.3(a) requires a lawyer to report any violation of the Ohio Rules of Professional Conduct where the lawyer has "unprivileged knowledge" of the violation and the violation is one that "raises a question as to any lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects." As to the former, see this section infra at "The certainty required that a violation occurred"; as to the latter see Board Opinion 2007-1, 2007 Ohio Griev. Discip. LEXIS 1, at *11-12 (noting that review of disciplinary cases will provide "ample guidance" and that if lawyer has doubts whether the misconduct raises questions as to honesty, etc., he or she should err on side of reporting).
Self-reporting: Since the Rule requires a lawyer to report the specified misconduct of "any" lawyer, this includes the lawyer's own misconduct; failure to do so would constitute a separate offense. Board Opinion 2007-1, 2007 Ohio Griev. Discip. LEXIS 1, at *18-19. While self-reporting was rare, it was not unheard of under the Code. See Cincinnati Bar Ass’n v. Farrell, 119 Ohio St.3d 529, 2008 Ohio 4540, 895 N.E.2d 800 (at urging of wife’s attorney, “respondent reported his fabrications and forgory to relator,” id. at para. 13); Disciplinary Counsel v. Niermeyer, 119 Ohio St.3d 99, 2008 Ohio 3824, 892 N.E.2d 434 (full disclosure to relator by respondent of his fabrication of supposedly timely-filed workers’ compensation refiling on behalf of client; Court emphasizes self-reporting aspect in staying suspension for 1-102(A)(4) violation, which ordinarily calls for actual suspension); Office of Disciplinary Counsel v. Markijohn, 99 Ohio St.3d 24, 2003 Ohio 4129, 794 N.E.2d 24, at para. 2 ("[r]espondent initiated the investigation that led to this complaint by advising relator of his illict reporting practices relative to his former law firm's retirement plan"); Stark County Bar Ass'n v. Miller, 44 Ohio St.3d 134, 134, 541 N.E.2d 607, 608 (1989) (respondent "filed a grievance against himself."). Cf. Office of Disciplinary Counsel v. DeLong, 98 Ohio St.3d 470, 2003 Ohio 1743, 786 N.E.2d 1280 (fact that respondent belatedly "reported his own misconduct" after practicing for over nine years while license to practice suspended noted as mitigating factor). See also, under the former OHCPR, Cincinnati Bar Ass'n v. Fidler, 83 Ohio St.3d 396, 700 N.E.2d 323 (1998) (OH DR 1-103(A) violation found for lawyer's failure to report his past criminal conviction when specifically questioned by disciplinary authorities about past crimes); Office of Disciplinary Counsel v. Morford, 46 Ohio St.3d 173, 545 N.E.2d 1254 (1989) (failure to cooperate in disciplinary investigation); Toledo Bar Ass'n v. Viren, 25 Ohio St.3d 200, 496 N.E.2d 243 (1986) (same). Compare Disciplinary Counsel v. Bein, 105 Ohio St.3d 62, 2004 Ohio 7012, 822 N.E.2d 358, where the Court stated without comment that
the panel . . . found that the alleged violation of DR 1-103(A) [respondent had pled guilty to and been convicted of two federal felonies] had not been proven by clear and convincing evidence. That charge was therefore dismissed.
Id. at ¶ 7 (bracketed material added). (Perhaps this improbable result can be explained by the fact that respondent was disbarred anyway, based on numerous other violations, including OH DR 1-102(A)(3) (illegal conduct involving moral turpitude).)
In its Ohio Code Comparison to Rule 8.3, the Task Force states that with respect to self-reporting, "Rule 8.3 differs from DR 1-103." We think this is inaccurate, both under a literal reading of 1-103(A), as well as the case law discussed above. Compare the language of DR 1-103(A) (“A lawyer possessing unprivileged knowledge of a violation of DR 1-102 shall report”), with that of DR 1-103(B) (“A lawyer possessing unprivileged knowledge or evidence concerning another lawyer . . . shall fully reveal such knowledge . . . upon proper request”) (emphasis added). See Arthur F. Greenbaum, The Attorney's Duty to Report Professional Misconduct: A Roadmap for Reform, 16 Geo. J. Legal Ethics 259, 294 (2003) (citing ABA Informal Op. 1279 (1973)). The 3/11/05 minutes of the Task Force correctly noted that self-reporting “is required by existing DR 1-103(A).”
The certainty required that a violation occurred: The major limitation on this otherwise broad duty to report is that the duty arises only where the lawyer has "unprivileged knowledge" of a violation. Ohio Rule 8.3(a). The "unprivileged" portion of the test is discussed in section 8.3:400. "Knowledge" is addressed here.
Under this standard, which is identical to that in former OH DR 1-103(A), the lawyer need not speak unless he has "knowledge" that a violation has taken place; a mere suspicion, however strong, is not enough. As is stated in Ohio Rule 1.0(g), "actual knowledge of the fact in question" is required, but "[a] person's knowledge may be inferred from the circumstances." Board Opinion 2007-1, 2007 Ohio Griev. Discip. LEXIS 1, at *18. See generally, under the Code, Bd. of Comm'rs on Grievances & Discipline Op. 90-1, 1990 Ohio Griev. Discip. LEXIS 8, at *4 (Feb. 23, 1990) ("The knowledge requirement seems to exclude the lawyer 'who has good faith questions about whether a violation has actually occurred."). See also Toledo Bar Ass'n Op. 92-2 (Jan. 17, 1992) (mere "suspicion" that another lawyer has engaged in fraud in arranging for assets of debtor corporation to be conveyed to new corporation to defraud creditors of first corporation does not trigger duty to report); Toledo Bar Ass'n Op. 90-11, at 2 (n.d.) ("'Knowledge' does not mean information that results in an absolute certainty of the truth. It should, however, rise above a mere suspicion."). For example, where the only information an attorney has of another lawyer's misconduct is derived from a written memorandum of a third person now deceased, that "at best constitutes a suspicion, but, does not constitute knowledge of a violation." Cleveland Bar Ass'n Op. 85-1, at 4 (Mar. 29, 1985). Note, however, that the Supreme Court did not pause over the knowledge element in finding that a lawyer's "concern" that a lawyer with whom he shared office space had abandoned his practice triggered the duty to report, "as required by DR 1-103(A)." Columbus Bar Ass'n v. McCorkle, 105 Ohio St.3d 430, 2005 Ohio 2588, 828 N.E.2d 99, at ¶ 4.
The Ohio Supreme Court further addressed the "knowledge" issue in Cincinnati Bar Ass'n v. Statzer, 101 Ohio St.3d 14, 2003 Ohio 6649, 800 N.E.2d 1117. In Statzer, one of the counts against respondent was that she violated former OH DR 1-103(A) by failing to report the misconduct (allegedly directing a legal assistant to testify falsely) of respondent's former associate. The panel found no clear and convincing evidence of a violation, and the Board adopted the panel's finding. In the Supreme Court, relator argued that this count should not have been dismissed. The Court's response was as follows:
We disagree, . . . out of deference to the panel. The panel found that the allegations in Count II depended "in large part" on the legal assistant's "frail credibility." We take it from this that the panel considered the legal assistant's claim so inherently unreliable that, in retrospect, it did not invoke the reporting requirement in DR 1-103(A), regardless of whether the claim ultimately turned out to be true. Moreover, the panel found that respondent's counsel did report to relator other allegations of misconduct against the associate that were based on respondent's personal experience. Accordingly, relator's . . . objection is . . . overruled, and Count II is dismissed.
Id. at ¶ 10 (ellipses added).
Even if the lawyer knows that another attorney has engaged in certain conduct, a secondary question that must be addressed is whether such conduct in fact violates the Rules. The degree of certainty required was described in former OH EC 1-4 as one in which the lawyer knew of conduct that the lawyer "believes clearly to be in violation of the disciplinary rules." See generally Toledo Bar Ass'n Op. 96-1(n.d.) (noting this standard).
The time frame in which the duty to report must be exercised: While neither Rule 8.3(a) nor former OH DR 1-103(A) set any time period in which reporting must take place, the Board of Commissioners interpreted the former disciplinary rule as requiring reporting "within a reasonable time" after the lawyer acquires unprivileged knowledge of a violation. Bd. of Comm'rs on Grievances & Discipline Op. 90-1, 1990 Ohio Griev. Discip. LEXIS 8, at *3 (Feb. 23, 1990). As is demonstrated by Office of Disciplinary Counsel v. Bozanich, 95 Ohio St.3d 109, 766 N.E.2d 145 (2002) (knowledge that judge committed extortion in 1992 but respondent did not report it to disciplinary authorities until 1999), a seven-year delay did not constitute reporting within a "reasonable time." Instead, a reasonable time is probably measured in weeks or months, not years. See In re Anderson, 769 A.2d 1282 (Vt. 2000) (nine months too long). See generally ABA, Annotated Model Rules of Professional Conduct 598 (5th ed. 2003) (commentary). Nationwide, there is some debate over whether waiting until the end of the proceeding to report misconduct observed in litigation constitutes reporting "within a reasonable time." See Arthur F. Greenbaum, The Attorney's Duty to Report Professional Misconduct: A Roadmap for Reform, 16 Geo. J. Legal Ethics 259, 298-300 (2003).
The entity to which the report should be made: Where a duty arises, Rule 8.3(a) provides that the lawyer is to report the misconduct to "a disciplinary authority empowered to investigate or act upon such violation." This would include the Office of Disciplinary Counsel or a bar association's certified grievance committee. Bd. of Comm'rs on Grievances & Discipline Op. 2007-1, 2007 Ohio Griev. Discip. LEXIS 1, at *6-9 (Feb. 9, 2007) (also noting that, while 8.3 duty to report is not satisfied by reporting to tribunal, there may be instances when such disclosure to tribunal also is required, pursuant to Rule 3.3 (candor toward tribunal)). To the extent the violation involves commission of a felony, there is an independent statutory duty imposed on all persons, including lawyers, to report that knowledge, unless the information is privileged, to appropriate law enforcement officials. ORC 2921.22(A), (G)(1). Bd. of Comm'rs on Grievances & Discipline Op. 86-001, 1987 Ohio Griev. Discip. LEXIS 29 (May 5, 1987) (applying this concept to felonies discovered by Certified Grievance Committee during the course of a disciplinary investigation). It should be reported to disciplinary authorities as well.
The individual nature of the duty to report: The duty to report attorney misconduct is an individual obligation of each lawyer. The fact that another lawyer also may have the duty does not absolve an attorney of the duty to report. See Columbus Bar Ass'n v. McCorkle, 105 Ohio St.3d 430, 2005 Ohio 2588, 828 N.E.2d 99, at para. 4 ("Topper, an attorney with whom respondent shared office space, became concerned that respondent had abandoned his practice, and as required by DR 1-103(A), he reported the problem to relator."). Cf. Howard v. Spore, 91 Ohio St.3d 131, 742 N.E.2d 649 (2001) (writ of mandamus to compel judge to report misconduct denied because complaining lawyer had adequate remedy at law by filing grievance himself). Whether one should be allowed to report on behalf of another is discussed in Arthur F. Greenbaum, The Attorney's Duty to Report Professional Misconduct: A Roadmap for Reform, 16 Geo. J. Legal Ethics 259, 320-22 (2003).
Attorney status and role and the duty to report: It has been opined that the duty to report attaches to lawyers licensed to practice in the state regardless of whether they are on active status. As the Toledo Bar Association commented, the duty to report attaches, regardless of registration status, "until a lawyer ceases to be admitted to the practice of law in Ohio by virtue of death, resignation, or disbarment." Toledo Bar Ass'n Op. 96-1 (n.d.). On the one hand, given the problematical aspect of enforcement of this Rule as a general matter, such a reading seems a bit unrealistic. If the reporting rule is for the most part not acted on or enforced by the profession as a whole, see Charles W. Wolfram, Modern Legal Ethics § 12.10.1, at 683 (1986) ("[p]robably no other professional requirement is as widely ignored by lawyers subject to it"), does it make sense to impose such a duty on a lawyer who is on inactive or retired status? And what is the sanction to be for such a violation? Even a public reprimand seems like overkill in the circumstances; suspensions of whatever length appear to be meaningless, inasmuch as inactive or retired status lawyers are not authorized to practice law in any event. But cf. Disciplinary Counsel v. Taft, 112 Ohio St.3d 155, 2006 Ohio 6525, 858 N.E.2d 414 (public reprimand imposed on inactive lawyer for violation of former DR 1-102(A)(6)), and Cleveland Bar Ass'n v. Greenberg, 112 Ohio St.3d 138, 2006 Ohio 6519, 858 N.E.2d 400, where the Court attempted to avoid or reduce the "meaninglessness" of suspending a retired lawyer by ordering that the imposed 18-month suspension commence on the date respondent resumes active status, if he ever chooses to do so. Accord, as to the effective date of a six-month sanction imposed on an inactive attorney, Cincinnati Bar Ass’n v. Rose, 114 Ohio St.3d 177, 2007 Ohio 3606, 870 N.E.2d 1168. On the other hand, the duty to report is arguably at the core of the profession's right of self-regulation. While practicing lawyers are not obligated to report privileged knowledge of such conduct, inactive or retired lawyers, having no clients, might be expected to report more freely. At bottom, it may come down to whether it is fair or unfair to ask lawyers on inactive or retired status to choose between severing their connection with the profession or following the duty to report. Greenberg and Rose, while not cases involving violation of the reporting rule, would certainly seem to provide support for the view that retired or inactive lawyers carry with them the ethical duties imposed by the Code (and now the Rules), including, presumably, the duty to report. The plot thickens, however, with the amendments to the Rules for the Government of the Bar, effective September 1, 2007. While a lawyer on inactive status (such as Rose) can still be granted reinstatement, Gov Bar R VI 2(A), this is no longer the case for an attorney (such as Greenberg) who chooses to retire. Gov Bar R VI 6(A)(1)(c) now provides that retirement is “irrevocable”; thus the sanction imposed in Greenberg would indeed be “meaningless” under current Gov Bar R VI 6(A).
The duty to report applies not only to lawyers but to judges as well. See, e.g., Columbus Bar Ass’n v. Gueli, 119 Ohio St.3d 434, 2008 Ohio 4786, 894 N.E.2d 1231 (grievance filed by judge); Jones v. Am. Employers Ins. Co., 106 Ohio App.3d 636, 641 n.3, 666 N.E.2d 1152, 1156 n.3 (Hamilton 1995) (applying duty). The duty of judges is addressed further in OH CJC Canon 3(D)(2). See generally Bd. of Comm'rs on Grievances & Discipline Op. 2001-6, 2001 Ohio Griev. Discip. LEXIS 7 (Dec. 7, 2001) (discussing judicial reporting of prosecutorial misconduct under both the Code and the CJC). In its most detailed opinion on the subject of judicial reporting of lawyer misconduct, the Board of Commissioners advised that a judge need not be disqualified for reporting misconduct of those appearing before the court; the duty is absolute and is not evidence of partiality. Bd. of Comm'rs on Grievances & Discipline Op. 89-32, 1989 Ohio Griev. Discip. LEXIS 2, at *2 (Oct. 13, 1989). The Board also commented that the judge was under no duty to inform the parties when the judge reported misconduct to disciplinary authorities. Id.
The duty to report applied: Sometimes the duty arises with respect to opposing counsel. For example, where opposing counsel lies in discovery, denying the existence of an insurance policy applicable in the litigation, that conduct violated former OH DR 1-102, and if the lawyer knew that her opponent was guilty of misconduct, it had to be reported because it was based on unprivileged information. Toledo Bar Ass'n Op. 90-11 (n.d.). See also Ohio State Bar Ass'n Informal Op. 02-01 (Mar. 15, 2002) (duty to report attached where attorney had unprivileged knowledge that opponent forged his clients' signatures on settlement releases).
At other times the duty arises from knowledge of the activities of others in the legal community. For example, under the former OHCPR, where a lawyer knew that a criminal defense attorney was employed in the same law firm as the county prosecutor and was therefore precluded from handling criminal defense work because of that association, the lawyer had a duty to report such knowledge to a tribunal or other body authorized to act upon the matter. Bd. of Comm'rs on Grievances & Discipline Op. 89-09, 1989 Ohio Griev. Discip. LEXIS 16 (Apr. 14, 1989).
Occasionally the duty to report arises from knowledge about co-workers. Where partners reviewing the partnership records found that one of the partners padded his expense account with the partnership and claimed false reimbursements, that misconduct should be reported because the underlying conduct involved dishonesty, fraud, deceit, or misrepresentation under former OH DR 1-102(A)(4), and the information was unprivileged because it was not obtained in a lawyer-client relationship. Toledo Bar Ass'n Op. 90-12 (May 23, 1990). From a practical perspective, of course, reporting co-workers can be particularly difficult. Not only are friendships and a sense of loyalty compromised, but associates may fear they will be fired, particularly if the reporting involves a partner, and partners may fear expulsion from the partnership. See generally Arthur F. Greenbaum, The Attorney's Duty to Report Professional Misconduct: A Roadmap for Reform, 16 Geo. J. Legal Ethics 259, 320 (2003) (discussing these issues). While there is substantial variation nationwide on whether a lawyer may be able to sue if fired for carrying out the duty to report, at least some Ohio case law suggests an action will lie in this state. Cf. Chapman v. Adia Servs., Inc., 116 Ohio App.3d 534, 688 N.E.2d 604 (Hamilton 1997) (recognizing public-policy exception to employee-at-will doctrine in wrongful discharge case brought by nonlawyer fired for consulting attorney; OHCPR (right of access to attorney) cited as source from which to derive public policy). See generally Kulch v. Structural Fibers, Inc., 78 Ohio St.3d 134, 677 N.E.2d 308 (1997) (recognizing common-law public-policy exception to employment-at-will doctrine).
Reporting duties of disciplinary authorities: In the context of investigating alleged lawyer misconduct, those involved may uncover possible criminal violations by lawyers. In Opinion 86-001, the Board of Commissioners on Grievances and Discipline sought to rationalize this provision with the privacy provision governing the conduct of disciplinary investigations, which, in its current form, provides: "All proceedings and documents relating to review and investigation of grievances made under these rules shall be private [with exceptions not relevant here]." Gov Bar R V 11(E)(1). Once a complaint has been certified to the Secretary of the Board by a probable cause panel, however, the complaint and all subsequent proceedings are for the most part public. Gov Bar R V 11(E)(2). Thus, at that point the conflict is no longer present. Stressing the fact that under ORC 2921.22 all persons knowing a felony has been committed are required to report that fact to law enforcement authorities and that the Rules for the Government of the Bar are to be construed for the protection of the public, the Board determined that disclosure considerations outweighed the privacy interests involved. Bd. of Comm'rs on Grievances & Discipline Op. 86-001, 1987 Ohio Griev. Discip. LEXIS 29 (May 5, 1987).
Protections for reporting: Ohio law recognizes an absolute privilege from civil liability for any statement made in connection with a disciplinary proceeding, as long as the statement bears some reasonable relation to the proceeding. Hecht v. Levin, 66 Ohio St.3d 458, 613 N.E.2d 585 (1993); accord Gruenspan v. Seitz, 124 Ohio App.3d 197, 705 N.E.2d 1255 (Cuyahoga 1997). Pursuing such a civil liability claim in the face of the privilege may itself warrant discipline. Columbus Bar Ass'n v. Elsass, 86 Ohio St.3d 195, 713 N.E.2d 421 (1999) (conduct may violate former OH DR 1-102(A)(5) (engaging in conduct prejudicial to the administration of justice), OH DR 7-102(A)(1) (filing a suit, asserting a position, or taking action knowing that such action would serve merely to harass or maliciously injure another), and OH DR 7-102(A)(2) (knowingly advancing an unwarranted claim)). See sections 3.1:200 and 8.4:500.
Abuses of the reporting duty: Filing a grievance simply to gain an advantage over opposing counsel in civil litigation was a disciplinary offense under the Code, Hecht v. Levin, 66 Ohio St.3d 458, 613 N.E.2d 585 (1993), and remains so under the Rules. See Ohio Rule 1.2(e) and section 1.2:900. Compromising one's duties to one's client to avoid an opponent's threat to file disciplinary charges also would violate the Rules. See Cincinnati Bar Ass'n v. Buckley, 94 Ohio St.3d 333, 763 N.E.2d 116 (2002) (finding that such conduct violated numerous provisions of former OHCPR).
- Primary Ohio References: Ohio Rule 8.3(b)
- Background References: ABA Model Rule 8.3(b)
- Commentary: ABA/BNA § 101:206, ALI-LGL § 5, Wolfram § 12.10
The former OH DR 1-103(A) duty to report lawyer misconduct was read as applying to misconduct by a judge. See, e.g., Office of Disciplinary Counsel v. Bozanich, 95 Ohio St.3d 109, 766 N.E.2d 145 (2002) (lawyer disciplined, inter alia, for failure to report in timely fashion that judge had extorted money from the lawyer).
Ohio Rule 8.3(b) now expressly deals with the matter and obligates a lawyer possessing unprivileged knowledge that a judge has violated any Rule of Professional Conduct or applicable rule of judicial conduct to "inform the appropriate authority." This duty runs to "any ethical violation by a judge," see the Task Force ABA Model Rules Comparison to Rule 8.3, not just those that raise "a substantial question as to the judge's fitness for office," as in MR 8.3(b).
- Primary Ohio References: Ohio Rule 8.3(a)-(c)
- Background References: ABA Model Rule 8.3(c)
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 1.42, 1.46
- Commentary: ABA/BNA § 101:204, ALI-LGL § 5, Wolfram § 12.10
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 1.42, 1.46 (1996).
Duty limited to instances where lawyer has unprivileged knowledge: The duty to report attaches only when an attorney's knowledge of a disciplinary violation by an attorney is "unprivileged." The knowledge aspect of the test is addressed in section 8.3:200. The "unprivileged" aspect is addressed here.
Disagreement exists nationally over how broad the "privilege" exception to the reporting requirement should be. Under Model Rule 8.3(c) reporting is not required if it would require the disclosure of "information otherwise protected by Rule 1.6 . . . ." Model Rule 1.6, subject to certain exceptions, sets forth a broad standard that protects from disclosure "any information relating to the representation."
In adopting its version of the reporting rule, Ohio did not use the Model Rule formulation but instead retained language from OH DR 1-103 that limited the lawyer's reporting duty to one who possesses "unprivileged knowledge" of the reportable misconduct. That phrase, in turn, had been interpreted under the Code to exclude both confidences (defined in the OHCPR as information protected by the attorney-client privilege) and secrets (defined in the OHCPR as other information gained in the professional relationship that the client has asked to be kept confidential or the release of which would likely embarrass or otherwise harm the client), OH DR 4-101(A), because confidences and secrets were "privileged information" and thus were excepted from the duty to report "unprivileged knowledge." E.g., Bd. of Comm'rs Op. 90-1, 1990 Ohio Griev. Discip. LEXIS 8, at *1 (Feb. 23, 1990) ("A lawyer is not required to report privileged information obtained in a confidential relationship. Privileged information would include both confidences and secrets as defined in DR 4-101(A)." That interpretation was the common one for all states employing the "unprivileged knowledge" language except Illinois, which, in a highly controversial decision, In re Himmel, 533 N.E.2d 790 (Ill. 1988), limited the exception to confidences alone. That is, disclosure was required under Himmel unless knowledge of the violation to be reported flowed from information protected by the attorney-client privilege.
The Ohio Supreme Court's intent in retaining the DR 1-103 language is murky at best. One could argue that "unprivileged knowledge" was meant to encompass all the information not protected by Ohio Rule 1.6. After all, "unprivileged knowledge" under the OHCPR was interpreted to exclude all information then treated as confidential under the ethics rules. Ohio Rule 1.6 certainly expands the information now to be treated as confidential, but the policy of weighing client rights to confidentiality over the system's need for reporting remains the same. Some support for this comes from Comment  to Ohio Rule 1.6 which cites the reporting rule [Ohio Rule 8.3] as a rule that requires disclosure of information relating to the representation only if such disclosure is otherwise allowed by Ohio Rule 1.6(b). Nevertheless, since the drafters consciously chose to diverge from the Model Rule language that clearly ties the reporting disclosure limit to Rule 1.6, this interpretation seems unlikely.
The better interpretation is that since the "unprivileged knowledge" language was taken from the former OHCPR, the phrase was intended to retain the same meaning as it had been previously given. This is supported by the Ohio Code Comparison section accompanying Ohio Rule 8.3. It points out alleged differences between the former provision and the current one but makes no mention that the scope of "unprivileged knowledge" was meant to change. As noted, under the OHCPR the language had been interpreted to exclude from the reporting duty both confidences and secrets. Accord Susan J. Becker, Jack A. Guttenberg, Lloyd Snyder, The Law of Professional Conduct in Ohio § 4.04[c], at 4-12 (2007-08 ed.) (“common understanding” under Code was “that it barred disclosure of all confidential information granted by a lawyer in the course of representing a client”).
Surprisingly, in Bd. of Comm'rs on Grievances & Discipline Op. 2007-1, 2007 Ohio Griev. Discip. LEXIS 1, at *15-16, the Board, choosing yet a different interpretation of Ohio Rule 8.3(c), expanded the meaning of "unprivileged knowledge" to all information other than that which falls within the evidentiary attorney-client privilege or is learned in a lawyer's assistance program under 8.3(c). In reaching this conclusion the Board rejected the first interpretation above, but did not even address the second (even though its prior Opinion 90-1, construing the identical language in DR 1-103, was directly on point). Nor did it acknowledge that its interpretation (yet again) made Ohio an outlier, with Illinois, in severely limiting the scope of information to be protected from disclosure in the reporting context. Instead, it found that the comparison between Ohio Rule 8.3 cmt.  (reporting not required "where it would involve the disclosure of privileged information") and MR 8.3 cmt.  (reporting not required "where it would involve violation of Rule 1.6") called for the narrower reading. This explanation, however, seems to us to read too much into the use of "privilege" in the Ohio comment, particularly given its meaning in this context under the OHCPR. Since the language of the Ohio Rule requires reporting of "unprivileged" information, it is neither surprising nor substantively significant that, as the comment reminds, disclosure is not required of information that is not "unprivileged," i.e., "privileged."
If the view of the Board on this issue is ultimately sustained by the Supreme Court, the result will be that the exception to the reporting duty in Ohio Rule 8.3 will be not only narrower than that in MR 8.3, but also narrower than the interpretation given the identical "unprivileged knowledge" language in the former Code analog, OH DR 1-103, which was construed as excluding both confidences and secrets from the reporting duty. See Bd. of Comm'rs on Grievances & Discipline Op. 90-1, 1990 Ohio Griev. Discip. LEXIS 8 (Feb. 23, 1990) (expressly rejecting the more restrictive interpretation of the privilege exception reached in Himmel). See generally Toledo Bar Ass'n Op. 96-3 (n.d.) (lawyer who discovered misconduct of another attorney while representing client had no duty to report where client requested that information gained in the professional relationship not be disclosed); Cleveland Bar Ass'n Op. 96-01 (n.d.) (attorney for bank who uncovered another lawyer's misuse of IOLTA account with bank had no duty to report because bank's confidentiality policy concerning customer accounts made this information a "secret").
For contrasting commentary on Board Opinion 2007-1, compare Thomas M. Horwitz, File That Grievance or Else . . ., Clev. B.J., Nov. 2007, at 8 (criticizing), with Harry D. Cornett & Lloyd B. Snyder, The Duty to Report Violations of the Rules of Professional Conduct: Alternative Views, Clev. B.J., Feb. 2008, at 12 (defending).
Even if the lawyer's knowledge is based on privileged information, the client has the right to waive the privilege. If the client does so, a duty to report then will arise. See, under the Code, Bd. of Comm'rs on Grievances & Discipline Op. 90-1, 1990 Ohio Griev. Discip. LEXIS 8 (Feb. 23 1990); Toledo Bar Ass'n Op. 90-13 (May 25, 1990); Toledo Bar Ass'n Op. 89-13 (Oct. 12, 1989). Lawyers certainly have the authority to consult their clients concerning the possibility of waiver and to suggest it where waiver will do no harm to the client. Cleveland Bar Ass'n Op. 96-01 (n.d.). Even if harm might arise, the lawyer may still raise the issue and point out the competing concerns so that the client is fully informed. Id. The Rules expressly state that "a lawyer should encourage a client to consent to disclosure where it would not substantially prejudice the client's interests." Rule 8.3 cmt. .
Confidentiality and bar-approved substance-abuse committees: As an aid to lawyers with substance-abuse and mental-health problems, the Ohio State Bar Association has established a statewide lawyers' assistance committee to provide counseling in these matters. In the course of their work, lawyers who serve on this committee frequently obtain information about individual attorneys that, if obtained in other circumstances, would have to be reported to disciplinary authorities under Rule 8.3(a). To encourage lawyers with substance-abuse and mental-health problems to seek the aid of lawyers' assistance committees, Ohio Rule 8.3(c) provides that information obtained by a lawyer while serving on such a committee is privileged "for all purposes under this rule" and thus need not be disclosed. The privilege protection also extends to members of a bar committee or subcommittee designed to assist lawyers with substance-abuse problems as well as to any member, employee, or agent of a nonprofit corporation established by the bar association for such purposes. See Board Opinion 2007-1, 2007 Ohio Griev. Discip. LEXIS 1, at *17-18.
The Ohio provision appears less protective than its Model Rule counterpart, which exempts from disclosure information gained by a lawyer or judge "participating" in an approved lawyers assistance program. MR 8.3(c). Communications between lawyers being treated under such programs as might arise in the context of group therapy, for example, are clearly covered by the Model Rule but appear to fall outside the coverage of the Ohio Rule, unless those participants can be treated as "agents" of the treating organizations. See Arthur F. Greenbaum, The Attorney's Duty to Report Professional Misconduct: A Roadmap for Reform, 16 Geo. J. Legal Ethics 259, 313-314 (2003).
Confidentiality and lawyers acting as mediators: To the extent one serves as a mediator or facilitator as an approved adjunct to the lawyer-discipline process, all knowledge acquired in that role "shall be privileged for all purposes under DR 1-103 [now Rule 8.3]." Gov Bar R V 11(E)(2)(a).
But suppose a lawyer acts as a mediator in other settings or participates in any other role in any mediation. How does the duty to report lawyer misconduct apply where knowledge of reportable events arises from conduct in mediation?
Under Ohio law, mediation communications in most settings (see ORC 2710.02) are privileged in subsequent proceedings. ORC 2710.03. Proceedings include "judicial, administrative, arbitral, or other adjudicative process, including related pre-hearing and post-hearing motions, conferences, and discovery." ORC 2710.01(G)(1).
Several issues arise in trying to determine the intersection between this privilege and the duty to report lawyer misconduct. Presumably lawyer disciplinary actions fall within the "other adjudicative process" definition of a "proceeding" in which the mediation privilege applies. Less clear is whether the act of reporting itself falls within that protection. The statute identifies acts outside the proceeding, but related to it, that are covered, and lists "pre-hearing and post-hearing motions, conferences, and discovery." Reporting is none of these. Nevertheless, the statutory language can be read as providing leeway for other actions related to a proceeding to fall within the privilege as well.
Even if the privilege attaches, does it trump the duty to report? Perhaps information gleaned from mediation communications is "privileged knowledge" under Ohio Rule 8.3 and thus does not trigger a duty to report. It is not at all clear, however, that the drafters had this privilege in mind when using the phrase in Rule 8.3.
Even if the mediation communications are privileged, exceptions are provided to the mediation privilege which, if applicable, would make the knowledge "unprivileged." Exceptions to mediation communication confidentiality arise when the information is sought or offered "to prove or disprove a claim or complaint of professional misconduct or malpractice" filed against a mediator or a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation. ORC 2710.05(B)(5)&(6). Query whether information needed to report misconduct qualifies as information necessary to prove or disprove a claim or complaint of professional misconduct. Further, the last exception applies only to misconduct charges "based on conduct during a mediation," not on past conduct revealed in a mediation to which the privilege continues to attach. For a discussion of the national debate on this issue, see Arthur F. Greenbaum, The Attorney's Duty to Report Professional Misconduct: A Roadmap for Reform, 16 Geo. J. Legal Ethics 259, 316-19 (2003). The issue is examined from the Ohio perspective in Daniel G. Zeiser, Reporting Professional Misconduct Learned in ADR, Clev B.J., May 2007, at 8 (concluding, inter alia, that no privilege attaches to any form of ADR other than mediation).