Legal Ethics Opinion #1545
Duty To Report Misconduct: Threatening Disciplinary Charges
You have presented a hypothetical situation in which an attorney
represents a mother, who was the custodial parent of a daughter.
On January 1, 1991, the father, living in California, refused to
return the daughter from visitation. The mother went to
California and successfully sued in the California courts to get
her daughter back (The California courts also held that custody
jurisdiction was in Virginia.). The client/mother told the
attorney that she had spent all her money on expenses related to
the California litigation, having returned to Virginia
impoverished, moved in with her parents but moved out again when
her father was laid off from his job. The client then lost her
own job and was left without funds or a place to live.
The client has related to the attorney that the father's Virginia
lawyer then approached her and represented that the father could
take the daughter temporarily while the mother found a job. You
state that the client was unrepresented at this time and that the
client alleges that the father's attorney induced her to sign a
consent order by means of numerous misrepresentations. You
indicate that the juvenile court consent order that the client
signed was extremely disadvantageous to her, giving her very
little, and barely enforceable, visitation. The client also has
told the attorney that when she tried to insist on provisions
which would allow her communication with the child and specified
means and dates for making travel arrangements, the father's
attorney told her that the inclusion of such clauses was not
customary because of her obvious right to such communication.
Immediately upon entry of the order, the father began denying the
mother both visitation and communication with the child.
The mother then began litigation to get the order reversed. The
mother employed two previous attorneys, but neither of them was
successful in even getting the matter to trial. Your facts
indicate that, since that time, the father has used various
delaying tactics to precently been retained to appeal a juvenile
court ruling which held that because of the child's lengthy stay
there, California, rather than Virginia, should now hear the
case. The appeal will be heard in circuit court.
The client/mother has volunteered the unsolicited opinion that
the father's lawyer's overreaching conduct by means of
misrepresentations is unethical. The client has asked the
attorney whether or not there is a state agency which could
provide her recourse or provide a forum for her complaints. The
attorney has not told that client that she may pursue a complaint
with the Virginia State Bar.
You have asked the committee to opine under the facts of the
inquiry, (1) whether the attorney has an obligation to tell the
client that she may make a complaint to the Virginia State Bar;
(2) whether the attorney may wait until the current litigation is
completed before telling the client how she can report an alleged
ethics violation to the Bar; (3) whether the attorney has an
obligation to report the father's lawyer's conduct, since the
attorney does not know the other lawyer and was not then
representing the client at the time of the alleged misconduct;
and (4) whether, assuming the attorney's obligation to report,
the attorney may wait until the completion of the litigation to
report the father's lawyer's conduct.
The appropriate and controlling Disciplinary Rules related to
your inquiry are DRs 1-103(A) which requires 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; 6-101(B)
which states that a lawyer shall attend promptly to matters
undertaken for a client until completed or until the lawyer has
properly and completely withdrawn from representing the client;
and 6-101(C) which states that a lawyer shall keep a client
reasonably informed about matters in which the lawyer's services
are being rendered.
The committee responds to your inquiries relative to the facts
you have presented as follows:
1. The committee is of the opinion that the attorney has
an obligation, under DR 6-101(C), to inform the client
that she may make a complaint to the Virginia State
Bar. Since the attorney is required to keep his client
reasonably informed about matters in which his services
are being rendered, the committee believes that
information as to available recourse the client may
have against opposing counsel is related to the matters
for which the attorney has been retained.
2. The committee is similarly of the opinion that the
attorney may not wait until the completion of the
current litigation before informing the client as to
the Bar complaint process. Under DR 6-101(B), an
attorney shall promptly attend to matters undertaken
for a client, which would otherwise prejudice the
client's rights if unattended. See also LEO #1144. The
committee further believes that there is no valid
reason to delay informing client of the complaint
process and that, in any case, it is the client'sdecision whether or not to proceed against opposing
counsel.
3. As to whether or not the attorney has an obligation to
report the father's lawyer's alleged misconduct, the
committee refers to DR 1-103(A). Under that Rule, an
attorney 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 Bar.
You state, however, that the attorney does not know the
father's lawyer and that the alleged misconduct
occurred prior to his representation of the
client/mother. Your facts, then, raise doubts as to
the certainty of the attorney's information regarding
the father's lawyer's conduct. The committee has
previously opined that the duty to report attorney
misconduct attaches when the information possessed by
the reporting lawyer is based upon a substantial degree
of certainty and not on rumors and suspicion. See LEOs
#1338, #1528. The committee opines, then, that if the
attorney's information is based upon a substantial
degree of certainty, and if the information is not
construed to be a secret or confidence under DR 4-l0l,
he has an obligation to report the father's lawyer's
alleged misconduct. See LEO #l468.
In addition, the committee cautions that the reporting
lawyer must be vigilant in observing the DR 7-104
prohibition against presenting or threatening to
present disciplinary charges solely to obtain an
advantage in a civil matter.
4. As to whether the attorney may wait until the
completion of the civil litigation to report the
ethical violation, the committee believes that LEO
#1338 is dispositive in that it opines that should an
attorney conclude both that opposing counsel's conduct
is in fact improper and that the impropriety raises a
substantial question as to his fitness to practice law
in other respects, the attorney is obligated to report
such misconduct without any unnecessary delay. A
singular exception to the obligation would exist if the
filing of such a complaint would constitute the
attorney's intentionally prejudicing or damaging of his
client during the course of the professional
relationship. See DR 7-l0l(A)(3); LEO #l338.
Committee Opinion
August 12, 1993
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