Bar Counsel Notes: Duty to Report Another Lawyer
During litigation, attorneys occasionally engage in possible professional misconduct, e.g., incivility during depositions, delay in discovery, etc. Must opposing counsel report all possible or supposed violations of Maine's Code of Responsibility? Maine Bar Rule 3.2(e)(1) states that an attorney must report misconduct only raising a "substantial question as to another lawyer's honesty, trustworthiness, or fitness to practice." For a discussion of this modified reporting rule, see Opinion No. 100 issued by the Professional Ethics Commission in 1989. The Bar Rule is silent on when to make or file such a report, so an attorney may temporarily delay reporting misconduct until the underlying matter has ended, thereby possibly avoiding coming under the cloud of a violation of Maine Bar Rule 3.6(c) (Threatening Prosecution).
*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.