Bar Counsel Notes: Duty to Report Attorney Misconduct

Lawyer's business client is owed a debt by a Maine attorney (X). Lawyer subjectively feels the facts and evidence show more of a business dispute than any clear-cut serious ethical conduct violation by X. Her client, however, is very upset and has urged otherwise, claiming that "X has done this before, been reprimanded and cannot be trusted." Does Lawyer have a mandatory duty to report X to the Board of Overseers of the Bar.

Lawyer is only mandated and obligated to file a misconduct complaint with the Board if she has a subjective belief that X's conduct is as described in MRPC 8.3(a): "…(misconduct) that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness in other respects…" If Lawyer does not have such a subjective belief regarding the nature of X's conduct, she is not mandated by that Rule to file her own grievance complaint. Board of Overseers of the Bar v. Warren, 2011 ME 124. See also Advisory Opinion #100. Lawyer should be sure, however, to confirm (preferably in writing) that her client understands he may still file his own grievance complaint if he wishes to do so.

*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.