Legal Ethics Opinion #1528
Obligation To Report Attorney Misconduct
You have presented a hypothetical situation in which Attorney (P)
is employed by a law firm and is contacted by a client to
represent him in a personal injury matter. The client completes
a one or two paragraph representation agreement and the client
provides the attorney with the operative facts, and documentation
in the client's possession. The claim relates to an accident on
the client's employer's premises and the facts also indicate
possible negligence by two independent third parties. You state
that P files a timely worker's compensation claim but that he
selects the date of the report as the date of injury (i.e.,
accident occurs on January 1st, but the report of injury is noted
as January 10th). You also state that P continues to use the
later date as the date of injury.
You indicate that P sends a letter and accompanying copy of a
motion for judgment ("suit" or "lawsuit") to his client about ten
days prior to the expiration of the statute of limitations and
affirmatively represents to the client that the lawsuit has been
filed. You state that P does not review the lawsuit with the
client nor request that the client sign the lawsuit papers.
You state that the lawsuit is not filed on the day the letter is
written to the client and, instead, is filed (by hand delivery)
approximately seventeen days after the statute of limitations has
passed. You indicate that P later sends client a letter, after
the suit is filed, and fails to disclose that the statute of
limitations has run.
You indicate that the defendants then each file answers asserting
the statute of limitations as an affirmative defense. The first
defendant files a plea in bar and the matter is heard before a
judge. You state that it is believed that P represents to the
court that the clerk's office made a mistake which caused the
suit to be filed late, although P does not, however, provide any
brief in opposition to the plea, or any documents, witnesses or
affidavits. The suit as to the first defendant is dismissed with
p of the statute of limitations. P notes a general objection
without setting forth specific grounds to support any appeal. No
transcript is maintained.
You state that subsequently P tells his client that the suit has
been "dismissed" and that he gives client several options as to
how to proceed. You also indicate that P does not disclose to
his client that he intends to pursue the case for the client.
The client then investigates the possibility of hiring new
counsel. You indicate that P, however, continues to represent
the client without either his knowledge or consent.
The second defendant then files a plea in bar. Again, you
indicate that it is believed that P represents that the lawsuit
was filed late due to a mistake by the clerk's office, but again
offers no exhibits, brief, witnesses or affidavits at the
hearing. You indicate that the remainder of the case as to the
second defendant is dismissed with prejudice. Again, no
transcript is maintained. You state that P notes a general
objection on the Order but fails to preserve all possible grounds
for appeal. Furthermore, you also state that P does not disclose
the actions taken by him, or the status of the case, to the
client.
The client then retains another attorney to pursue a malpractice
claim against P. The second attorney (Attorney 2) investigates
the claims and requests the file from P who then releases part of
the file, which includes a memorandum to the file drafted just
prior to release. You indicate that the memorandum sets forth
P's account of events.
The second Attorney then undertakes an investigation of the
client's claims and, as part of the investigation, procures the
complete court file which you indicate shows that the suit was
filed by hand delivery after the statute of limitations had run,
even though a cover letter is written by P on the date of the
statute of limitations.
The second Attorney then interviews the clerk's office regarding
procedures and the facts as set forth in P's memorandum to the
file. The judge who dismissed the case against the first
defendant is also interviewed. You state that the judge has a
few notes that state that there were no mitigating circumstances
proved to justify defendant's plea. You further indicate that
the judge states that the case would not have been dismissed if P
had presented evidence to support his claim as to the clerk's
mistake. You advise that the second judge has not yet been
interviewed. The new Attorney also contacts opposing counsel
for both defendants; both recall P having made re to the late
filing due to a clerk's mistake.
You state that P then produces a certified mail receipt in the
package (file) produced to the second Attorney and claims that it
is the certified mail used to send the lawsuit to the clerk's
office. You also indicate that the receipt is undated and
unsigned. Further, you indicate that the first judge, when shown
the receipt, states that the case would not have been dismissed
if such proof had been produced and corroborated.
The second Attorney investigates the receipt and determines that
a receipt bearing that number was received by the court a day
before the running of the statute of limitations. You indicate
that the receipt is unsigned and undated and that only the back
portion is produced. Furthermore, you also indicate that there
is no copy of the receipt in the court file and it is unknown if
the materials contained in the package received the day before
the running of the statute of limitations contained client's
papers or other papers.
Finally, the second Attorney notifies P and P's firm, which
previously did not have notice, of the legal malpractice claim.
The appropriate and controlling Disciplinary Rules related to
your inquiry are DRs 1-102(A)(4) which states that a lawyer shall
not engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation which reflects adversely on a lawyer's fitness
to practice law; 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; 5-102 (A)
and (B) which provide respectively that a lawyer may not continue
to serve as an advocate for his client when it is obvious that he
or a lawyer in his firm ought to be called as a witness on behalf
of his client and, where a lawyer learns that he or a lawyer in
his firm may be called as a witness other than on behalf of his
client, he may continue the representation until it is apparent
that his testimony is or may be prejudicial to his client; 7-l04
which prohibits a lawyer from presenting or threatening to
present criminal or disciplinary charges solely to obtain an
advantage in a civil matter; and DR 7-102(A)(5) which states that
a lawyer shall not knowingly make a false statement of law or
fact.
On several questions related to the facts presented, the
committee opines as follows:
. You ask whether the second Attorney has a duty to report
Attorney P's misrepresentations to the Virginia State Bar.
The facts you have provided indicate that Attorney P
represented to his client, opposing counsel, and to the
court that the suit had been filed before the running of the
statute of limitations. The facts also indicate that
Attorney P filed the suit seventeen days after the running
of the statute of limitations and that he represented that
the late filing was due to a clerk's error. Finally, the
facts indicate that the court file does not support Attorney
P's assertions. Based upon these facts, the committee is of
the opinion that Attorney P thus knowingly made a false
statement of fact, in violation of DR 7-102(A)(5). Such
conduct may also be violative of DR 1-102(A)(4). See LEO
#1429.
The committee believes, then, that the second Attorney may
have a duty to report Attorney P's misconduct under DR 1-
103(A).
Disciplinary Rule 1-103(A) contains a two-prong test. SeeLEO #1004. First, a lawyer must have information indicating
that another lawyer has committed a violation of the
Disciplinary Rules. The committee is of the opinion that
Attorney P's conduct is violative of DR 7-102(A)(5); thus
the committee believes that the first prong has been
satisfied.
The second prong of DR 1-103(A) is whether the violation of
the disciplinary rule "raises a substantial question as to
that lawyer's fitness to practice law in other respects."
Relevant factors to be considered include, but are not
limited to, the recency of the conduct, the seriousness of
the conduct, the likelihood that the behavior will be
repeated, the likelihood that it will affect the attorney's
competence and any mitigating or aggravating circumstances.
The committee is of the opinion that Attorney P's knowingly
representing to his client, opposing counsel, and to court
that the suit had been filed prior to the statute of
limitations when, in fact, it had been filed seventeen days
after the statute's running, raises a substantial question
as to his fitness to practice law in other respects.
2. As to when an attorney's duty to report possible misconduct
arises, the committee believes that the duty attaches when
the information possessed by the reporting lawyer is based
upon a substantial degree of certainty and not on rumors or
suspicion. See LEO #1338; Maine Legal Ethics Opinion No.
100 (October 4, 1989), ABA/BNA Law. Man. on Prof. Conduct,
901:4208. In addition, the committee cautions that the
reporting lawyer must be vigilant in observing the DR 7-l04
prohibition against presenting or threatening to present
disciplinary charges solely to obtain an advantage in a
civil matter.
3. You ask whether the affirmative duty to report P, if one
exists, renders the second Attorney a fact witness, thereby
precluding that attorney from representing the client in a
malpractice lawsuit. The committee believes that the answer
to this question turns on whether or not the second Attorney
either "ought to be" called as a witness on behalf of his
client (DR 5-102(A)) or "may be" called on behalf of one
other than his client (DR 5-102(B)). The committee does not
believe it to be obvious that the second Attorney "ought to
be" called as a witness by his client simply by virtue of
the Attorney's obligation to report Attorney P's misconduct.
Furthermore, even if the second Attorney "may be" called as
a witness under DR 5-102(B), he may continue representation
of his client until it is apparent that his testimony is or
may be prejudicial to his client. See LEOS #866, #1226,
#1240, #1455.
4. Finally, regarding whether or not the second Attorney has an
independent duty to file a grievance if the client instructs
him not to file, the committee believes that LEO #1468 is
applicable only where a confidence or secret is protected by
DR 4-l0l.
Committee Opinion
May 11, 1993
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