Legal Ethics Opinion No. 1450

Duty to Report Misconduct of Other Attorney; Firm's Involvement
in              Attorney's Carrying Out Obligation

You have presented a hypothetical situation in which a Virginia
attorney ("the complaining attorney"), who practices with a firm,
has filed or is considering filing an ethical grievance against
another Virginia attorney ("the subject"), who practices with
another firm.  The complaining attorney consults with other
attorneys participating in the matter out of which the grievance
arose but does not seek advice or permission from his firm before
filing the grievance.  The complaining attorney believes that,
ethically and legally, such grievances should be kept
confidential and that they are the individual responsibility of
each attorney. 

After the grievance is filed, the subject of the grievance, or
another attorney in his firm, communicates with the complaining
attorney's firm.  The intent of this communication may be
disputed.  Afterwards, however, the complaining attorney's firm
requests or implies that the attorney consider withdrawing the
complaint because of possible ramifications to the firm's
business (e.g., referrals from the subject attorney's firm).  The
firm also instructs all firm attorneys to consult with firm
management before filing any future grievances.  You state that
firm management's role in this process is not clear, however, you
are concerned that this incident suggests that firm management
would consider potential impact on firm business to be a
consideration before filing a grievance. 

The appropriate and controlling Disciplinary Rules related to
your inquiry are DR 1-103(A), which provides that a lawyer having
information indicating that another lawyer has committed a
violation of the Disciplinary Rules that raises a substantial
question as to that lawyer's fitness to practice law in other
respects, shall report such information to the appropriate
professional authority, except as provided in DR 4-101; and DR
l-l02(A)(2), (3) and (4) which respectively prohibit a lawyer
from circumventing a Disciplinary Rule through the actions of
another, from committing a crime or other deliberately wrongful
act, and from engaging in conduct involving dishonesty, fraud,
deceit, or misrepresentation when any of those activities reflect
adversely on a lawyer's fitness to practice law. 

The committee responds to your inquiries relative to the facts
you have presented as follows:

     1.   With regard to whether an attorney may consult with
          other attorneys of his firm before deciding whether to
          file an ethical complaint with the Bar, the committee
          directs your attention to EC 4-2.  Ethical
          Consideration 4-2 provides that unless the client
          otherwise directs, a lawyer may disclose the affairs of
          his client to partners or associates of his firm. Thus,
          the committee is of the opinion that an attorney mayconsult with other attorneys in his firm before making
          the decision whether to file an ethical complaint.   

     2.   With regard to whether an attorney may be required to
          consult with firm members before filing an ethical
          complaint, the committee is of the opinion that such
          requirement would be in violation of DR l-l03(A) in
          that the employer/firm may be perceived as pressure on
          the lawyer to refrain from reporting misconduct in
          derogation of his obligation to do so.  Since such a
          requirement may have a chilling effect on the
          attorney's responsibility to report misconduct, the
          committee is of the opinion that the law firm may not
          require such consultation, but recognizes that
          reasonable policies which encourage it do not violate
          DR l-l03(A). 

     3.   As to the obligations of an attorney who believes
          another attorney has committed an ethical violation but
          who has been requested or instructed by his firm not to
          pursue an ethical complaint, the committee believes
          that DR 1-103(A) is controlling.  The committee directs
          your attention to Ethical Consideration 1-4 which
          advises that the integrity of the legal profession can
          be maintained only if conduct of lawyers in violation
          of the Disciplinary Rules is brought to the attention 
          of the proper officials.  The committee has also
          previously opined that an attorney has an obligation to
          report violations of the Disciplinary Rules even when
                    the attorney          believes or has cause to believe that some other party
          has reported the misconduct.  See LEO #838.  In the
          facts you present, therefore, the committee opines that
          an attorney who believes that another attorney has
          committed a disciplinary violation that raises a
          substantial question as to that lawyer's fitness to
          practice law in other respects has an obligation to
          report the misconduct, regardless of whether his firm
          has requested or instructed him not to do so.

     4.   In response to your inquiry as to the factors to be
          considered by an attorney before making an ethical
          complaint, the committee refers you to prior LEO #1004
          which articulates the two-prong test to be satisfied
          under DR 1-103(A) before the obligation to report
          misconduct arises: (l) the lawyer must have information
          indicating that another lawyer's conduct has violated
          one of the Disciplinary Rules and (2) that violation
          must raise a substantial question as to that lawyer's
          fitness to practice law in other respects.  

     5.   With regard to whether it is appropriate for the
          attorney to consider the potential economic or business
          impact upon his firm in deciding whether to make an
          ethical complaint, the committee believes that the
          attorney's obligation towards maintaining the integrity
          of the profession clearly should override such
          considerations.  Thus, the committee is of the opinion
          that potential economic or business impact is not an
          appropriate factor to consider in deciding whether to
          make a complaint.

     6.   As to whether it is appropriate for the reported
          attorney to contact the reporting attorney or his firm
          about the grievance, the committee is unaware of any
          Disciplinary Rules which would prohibit such
          communication.  The committee is of the view that if
          the reported attorney asserts or implies that the
          reporting attorney or his firm will be economically
          impacted unless the complaint is withdrawn, the
          reported attorney may be violating DR l-l02(A)(2, 3, or
          4). 

     7.   Finally, with regard to whether it is appropriate for
          an attorney to request withdrawal of an ethical
          complaint at the request of other firm members, the
          committee is of the opinion that the decision to make
          or request the withdrawal of an ethical complaint rests
          with the individual attorney, and that it is improper
          for the attorney's firm to direct that decision. 
          Moreover, the committee cautions that any request by
          the reporting attorney to withdraw a complaint may not
          be controlling.  See Virginia State Bar Council Rules
          of Disciplinary Procedure, Rule V(E).  The committee
          also opines that since economic or business reasons are
                    not appropriate          considerations in deciding whether to make a complaint,
          they are likewise not appropriate concerns in deciding
          whether to withdraw one.

Committee Opinion
March 23, 1992