These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
 
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  Topic: 21 - Reporting Another Lawyer's Unethical Conduct
LEO NumTopicsSummaryDate
1646

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21-Reporting Another Lawyer's Unethical Conduct

35-Threatening Criminal and Disciplinary Action

[WITHDRAWN] A former client sued a lawyer for malpractice and also filed a Bar complaint. The former client later non-suited the malpractice action but threatened to bring it again. The former client's lawyer sought a settlement from the defendant lawyer in return for withdrawing the Bar complaint. The defendant lawyer believes that this violates DR 7-104 and must be reported to the Bar, but does not want to violate DR 7-104 (by appearing to use the disciplinary charge to deter the refiling of the malpractice action).The Bar indicated that a lawyer must report another lawyer's misconduct "without any unnecessary delay." Determining if the reporting lawyer's motives are improper "requires a factual case-by-case determination." If the defendant lawyer reports the misconduct while the malpractice claim is pending, the report is "rendered suspect." However, if the reporting lawyer would not be reporting the misconduct "solely to use or threaten the Bar complaint for leverage to settle or conclude the malpractice claim," the lawyer is not required to wait until the malpractice claim is resolved before reporting the violation.9/8/1995
1571

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5-Lawyers Changing Jobs

8-Bills and Fees

12-Withdrawing Lawyers (Including Non-Compete Issues)

14-Ownership of Files and Attorney Lien Issues

21-Reporting Another Lawyer's Unethical Conduct

A client hired a lawyer who was acting as an independent contractor/associate of a law firm. The retention letter required the client to reimburse the law firm on a quantum merit basis if the client chose to terminate the relationship, and also required the client to pay one-third of any settlement amount to the law firm if negotiations had begun before the relationship was terminated. The individual lawyer left the firm and continued to represent the client. The law firm asserted an attorney's lien on any settlement amount, but refused to provide an itemization of services when requested by the client. The Bar held that the law firm's refusal was improper, and raised a substantial question about its lawyer's fitness to practice law and therefore must be reported to the Bar. 7/12/1994
1635

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21-Reporting Another Lawyer's Unethical Conduct

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

35-Threatening Criminal and Disciplinary Action

57-In-House Lawyers

63-Lawyers Acting as Corporate Officers or Directors

A company officer (who is also a lawyer) tape records a telephone conversation the officer has with a terminated corporate employee. Because the Code provision prohibiting lawyers from engaging in misrepresentation is "not specifically applicable to activities undertaken in an attorney-client relationship," the lawyer's tape recording was improper even if the officer were acting only as a corporate officer and not as the corporate lawyer.After citing the familiar list of factors for determining whether a lawyer's misconduct must be reported, the Bar concludes that the tape recording without consent "may raise a substantial question" as to the lawyer's honesty, trustworthiness or fitness to practice law in other respects. The Bar cautions that the reporting lawyer must be "vigilant" in avoiding such reporting "solely to obtain an advantage in a civil matter." [In LEO 1738, the Bar indicated that lawyers may secretly tape record telephone conversations in which they participate, but only in situations involving criminal or housing discrimination investigations or if the lawyers are protecting themselves from possible criminal action.] [If information about the ethics violation is a client confidence, a lawyer may report the other lawyer's misconduct only if the client consents under Rule 1.6(c)(3); the lawyer considering whether to report must consult with the client under that Rule.]2/7/1995
1154

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21-Reporting Another Lawyer's Unethical Conduct

41-Non-Virginia Lawyers

A foreign state bar would have jurisdiction over a foreign lawyer's actions in that state. [Rule 8.5 determines which state's disciplinary rule would apply to violations.]11/2/1988
1632

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13-Marketing - Miscellaneous

17-Fraud on the Tribunal

21-Reporting Another Lawyer's Unethical Conduct

31-Protecting and Disclosing Confidences and Secrets

42-Payments to Solicit Recommendations

50-Lawyer-Owned Businesses

A law firm may not pay a service fee to a so-called "lender service bureau" in return for obtaining legal work from the bureau. Because the bureau apparently is not engaging in fraud against a tribunal, however, the law firm is not obligated to disclose the bureau's operations to the proper authorities. If the law firm determines that the possible misconduct of lawyers holding an "ownership or management interest" in the bureau meets the proper standards, the misconduct would have to be reported. 2/7/1995
1450

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21-Reporting Another Lawyer's Unethical Conduct

45-Law Firms - Miscellaneous

A law firm may not require or prevent one of its lawyers from filing an ethical complaint against a lawyer in another firm. 3/23/1992
1429

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21-Reporting Another Lawyer's Unethical Conduct

A lawyer "may" have a duty to report an adversary who filed a motion for judgment known to contain false factual allegations. 9/16/1991
1562

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8-Bills and Fees

21-Reporting Another Lawyer's Unethical Conduct

A lawyer and client agree to submit a fee dispute to a local bar association fee arbitration committee. If the lawyer acted unethically in charging the fee or failing to explain the fee to the client, the lawyer's submission to arbitration does not in itself save the lawyer from being reported to the Bar under DR 1-103(A). Although the Bar declines to indicate whether the lawyer acted unethically in the fee matter, it rules that any member of the fee arbitration committee concluding "upon a substantial degree of certainty" that the lawyer's misconduct violates DR 1-103(A) must report the conduct, "without unreasonable delay," to the Bar. Failure to do so would violate DR 1-103(A). 2/8/1994
1840

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21-Reporting Another Lawyer's Unethical Conduct

31-Protecting and Disclosing Confidences and Secrets

58-Real Estate Lawyers

A lawyer for a purchaser would knowingly assist a client in committing fraud by helping a relocation company prepare misleading property conveyance documents (which fail to show in the chain of title the relocation company's purchase of the property from its client company's employee and its later sale to a third party -- which has the effect of avoiding the payment of recording fees and taxes). Although the purchaser's lawyer involved in this activity cannot reveal her client's past wrongdoing (except as permitted under Rule 1.6), "the lawyer is required to avoid furthering the purpose, for example, by suggesting how it might be concealed." The purchaser's lawyer cannot continue with the closing, because it involves fraudulent conduct by the relocation company and its lawyer. The purchaser's lawyer must report the relocation company's lawyer's conduct (absent some mitigating circumstances), because it clearly involves an ethics violation and raises a "substantial question" as to the relocation company's lawyer's "fitness to practice law in other respects."9/25/2007
1608

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17-Fraud on the Tribunal

21-Reporting Another Lawyer's Unethical Conduct

A lawyer has made a false statement of fact by knowingly submitting medical bills from one accident in supporting a claim arising from another accident. The plaintiff also committed perjury in describing the accidents. Another lawyer learning of such conduct "may" have a duty to report the fraud and misrepresentation to the tribunal and the lawyer's conduct to the Bar. 7/21/1994
1540

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21-Reporting Another Lawyer's Unethical Conduct

31-Protecting and Disclosing Confidences and Secrets

A lawyer improperly revealed a former client's confidences and secrets by providing a former client's litigation adversary with a complete historical bill detailing and describing services rendered to the former client. If the lawyer knowingly engaged in the disclosure, the breach would raise a substantial question as to the lawyer's fitness to practice law in other respects, and would have to be reported to the Bar. 8/12/1993
0977

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21-Reporting Another Lawyer's Unethical Conduct

A lawyer learning that another lawyer is using or possessing cocaine has a duty to report the other lawyer's criminal conduct. [If information about the ethics violation is a client confidence, a lawyer may report the other lawyer's misconduct only if the client consents under Rule 1.6(c)(3); the lawyer considering whether to report must consult with the client under that Rule.]10/7/1987
1545

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21-Reporting Another Lawyer's Unethical Conduct

A lawyer learning that opposing counsel may have acted in an unethical fashion should immediately advise the client of the client's right to complain to the Bar, and must also immediately report the other lawyer's unethical conduct if it "is based upon a substantial degree of certainty," is "not construed to be a secret or confidence" whose disclosure would damage or prejudice the client's interests. [If information about the ethics violation is a client confidence, a lawyer may report the other lawyer's misconduct only if the client consents under Rule 1.6(c)(3); the lawyer considering whether to report must consult with the client under that Rule.]8/12/1993
1133

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21-Reporting Another Lawyer's Unethical Conduct

29-Advancing Fees and Costs

A lawyer may not advance a client money against a future settlement, unless it is to cover litigation expenses. A lawyer learning in a deposition that an opponent has engaged in this unethical conduct must report the lawyer, and seek relief from a protective order covering the deposition testimony so that it can be reported. 9/2/1988
1582

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21-Reporting Another Lawyer's Unethical Conduct

35-Threatening Criminal and Disciplinary Action

A lawyer may not ethically send a letter to a client's adversary threatening to "seek assistance through law enforcement and legal avenues," because this alludes to criminal prosecution and apparently was done solely to gain an advantage in a civil matter (the lawyer had represented to the court that the lawyer had no interest in seeing a criminal prosecution begun). The Bar declines to determine if another lawyer learning of the letter must report the lawyer, but indicates that under DR 1-103(A) the other lawyer would have such a duty if the other lawyer has information "to a substantial degree of certainty" of an ethical violation that would raise a substantial question as to the lawyer's honesty, trustworthiness or fitness to practice law in other respects. 3/9/1994
0217

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21-Reporting Another Lawyer's Unethical Conduct

A lawyer may not report unethical conduct by another lawyer if the information was obtained from a client and the client does not consent to its disclosure. [Rule 1.6(c)(3) requires that lawyers consult with their clients in these circumstances.]7/17/1972
0838

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21-Reporting Another Lawyer's Unethical Conduct

A lawyer must report another lawyer's ethical violation even if the lawyer believes that someone else has already reported the violation. [If information about the ethics violation is a client confidence, a lawyer may report the other lawyer's misconduct only if the client consents under Rule 1.6(c)(3); the lawyer considering whether to report must consult with the client under that Rule.]9/4/1986
0497

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21-Reporting Another Lawyer's Unethical Conduct

A lawyer need not disclose a predecessor's ethics violation if disclosure would hurt the client and client has not consented (even if the evidence of the violation also appears in public documents). 2/15/1983
1308

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21-Reporting Another Lawyer's Unethical Conduct

A lawyer reporting another lawyer's misconduct must make the report "in concert with factual determinations and an analysis of the impact on the offending lawyer's fitness to practice law." 10/19/1990
1468

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21-Reporting Another Lawyer's Unethical Conduct

31-Protecting and Disclosing Confidences and Secrets

40-Trust Accounts

73-Family Law Lawyers

A lawyer representing the ex-wife of another lawyer in a divorce case found irregularities in the other lawyer's trust accounts. The ex-wife asked the lawyer to keep the irregularities secret, because revealing them could jeopardize the ex-wife's support payments. Although generally trust account violations must be reported, in this case the lawyer would violate the duty of confidentiality if the disclosed the husband's trust account irregularities to the Bar (the court had already been advised of the irregularities, and had placed all the information under seal). [The Bar did not discuss the circumstances under which the court had been advised of the trust irregularities.] [If information about the ethics violation is a client confidence, a lawyer may report the other lawyer's misconduct only if the client consents under Rule 1.6(c)(3); the lawyer considering whether to report must consult with the client under that Rule.]12/14/1992
1522

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17-Fraud on the Tribunal

21-Reporting Another Lawyer's Unethical Conduct

A lawyer who has misrepresented the nature of a purchase price in statements to a clerk has committed fraud on a tribunal, and the misconduct raises a substantial question as to the lawyer's fitness to practice law in other respects and therefore must be reported to the authorities. 5/11/1993
1528

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17-Fraud on the Tribunal

21-Reporting Another Lawyer's Unethical Conduct

A lawyer who lied to a client, opposing counsel and the court about whether a lawsuit had been filed before the running of the statute of limitations has committed a fraud on the tribunal and must be reported (applying an objective rather than a subjective test in determining if the fraud raises a substantial question as to fitness to practice law). A lawyer's duty to report such misconduct arises "when the information possessed by the reporting lawyer is based upon a substantial degree of certainty and not on rumors or suspicion." ) [Rule 8.3(a) requires a lawyer to report another lawyer's ethics violation under certain circumstances if the lawyer has "reliable information" about the breach.]5/11/1993
1518

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21-Reporting Another Lawyer's Unethical Conduct

58-Real Estate Lawyers

A lawyer who prepared documents necessary to transfer property in violation of an assignment has committed a fraud. Another lawyer learning of the fraud would have a duty to report it if the ethical violation raises a substantial question as to the lawyer's fitness to practice law in other respects. Relevant factors for this determination include: "the recency of the conduct, the seriousness of the offense, the likelihood that the conduct will be repeated, the likelihood that it will affect the attorney's competence, and any mitigating or aggravating circumstances." [If information about the ethics violation is a client confidence, a lawyer may report the other lawyer's misconduct only if the client consents under Rule 1.6(c)(3); the lawyer considering whether to report must consult with the client under that Rule.]5/11/1993
1338

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21-Reporting Another Lawyer's Unethical Conduct

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

35-Threatening Criminal and Disciplinary Action

A lawyer's groundless accusations of unethical conduct solely to gain an advantage in a civil matter could themselves be unethical. 4/20/1990
1185

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21-Reporting Another Lawyer's Unethical Conduct

69-Lawyers Acting as Expert Witnesses

A lawyer's participation in an abortion clinic protest did not constitute "misconduct" as defined in the Code for purposes of disbarment, but "a lawyer must comply with the applicable rules at all times, whether or not he or she is acting in a professional capacity." 2/22/1989
1566

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9-Government Lawyer Conflicts

21-Reporting Another Lawyer's Unethical Conduct

A lawyer-taxpayer complaining of a county lawyer's conduct has no obligation to report the lawyer under DR 1-103(A), because the lawyer-taxpayer's information is based on "suspicion" only. [Rule 8.3(a) requires a lawyer to report another lawyer's ethics violation under certain circumstances if the lawyer has "reliable information" about the breach.]12/14/1993
1785

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1-Adversity to Current Clients

2-Adversity to Former Clients

9-Government Lawyer Conflicts

18-Consent and Prospective Waivers

21-Reporting Another Lawyer's Unethical Conduct

36-Withdrawal from Representations

A part-time County Attorney may not represent the Board of Supervisors in a lawsuit against the county's Board of Zoning Appeals ("BZA") and a corporation which had obtained a variance from the BZA; explaining that: (1) determining whether the BZA is a current client of the County Attorney is a factual issue, but a lawyer's duty of communication and duty to protect the client's interest when the relationship ends "combine to place the onus of clarity regarding the beginning and the end of the representation on the attorney and not the client; if a client's belief that a representation is ongoing is reasonable under the circumstances, and the attorney does nothing to indicate that the relationship has terminated, an attorney may not be able to treat that client as a 'former' client for conflicts of interest analysis;" (2) the BZA is certainly a former client of the County Attorney in a substantially related matter, because the BZA received advice from the County Attorney about the public notice for the variance that is at issue in the current lawsuit against the BZA (the variance was therefore "the subject of each representation"); (3) the ethics rule prohibiting adversity to a former client "contains no notion of some parties being less real than other parties," so the County Attorney cannot avoid the conflicts rule by arguing that the corporation is the main interested party in the current litigation, and that the BZA is not a "real" party for conflicts purposes; (4) the County Attorney faced a conflict even in advising the BZA that it did not need a separate lawyer (because the Board of Supervisors would have an interest in having the BZA unrepresented); (5) the BZA could consent to the County Attorney's adversity if it was found to be a former client, but Rule 1.7 Comment [7] "prohibits representation of opposing parties in litigation," meaning that even the BZA's consent would not cure the conflict if the BZA is found to be a current client (because the County Attorney would be simultaneously representing opposite sides in the same matter); (6) determining whether the corporation's lawyer must file an ethics charge against the County Attorney is a "fact-specific judgment call" if such a duty exists, the corporation's lawyer must report the misconduct "without any unnecessary delay" [overruling any inconsistent holding in Virginia LEO 1209]. [Comment [21b] to Rule 1.6 indicates that a lawyer obligated to report another lawyer's misconduct during litigation can wait until the end of the litigation if reporting the misconduct earlier would harm the client's interests].11/14/2003
1205

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9-Government Lawyer Conflicts

21-Reporting Another Lawyer's Unethical Conduct

31-Protecting and Disclosing Confidences and Secrets

A proposed FOIA amendment would require a member of a public body to certify that nothing improper was discussed. The lawyer representing the public body would have to reveal a false certification as a fraud upon a third party if the "fraud has been committed to dilute the citizenry's respect for the workings of government." Otherwise, the lawyer could not reveal a false certification.If one of the board members was a lawyer, that member could not sign a false certification. If the member did so, the county attorney discovering the falsity of the certification would have to report it to the professional authorities. It would be "rebuttably presumptive that a false certification by a presiding officer-member/attorney would reflect adversely on that lawyer's fitness to practice law" and would have to be reported to the Bar. 4/13/1989
1323

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21-Reporting Another Lawyer's Unethical Conduct

77-Communicating with an Individual Adversary

A prosecutor may not send the defendant a copy of a letter that the prosecutor sends to the defendant's lawyer, without the lawyer's consent, even if the prosecutor believes that the lawyer has not communicated a plea agreement offer to the defendant. Instead, the prosecutor should consider advising the disciplinary authorities that the lawyer may not be fulfilling the ethical obligation to pass along all pertinent information to the lawyer's client. 2/27/1990
1774

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1-Adversity to Current Clients

21-Reporting Another Lawyer's Unethical Conduct

45-Law Firms - Miscellaneous

An associate may not (absent consent) prepare a patent opinion seeking to invalidate a patent held by another firm client (which the associate’s law firm represents in different technologies). The supervising partner who knowingly directed the associate’s action violated Rule 5.1, because the partner ordered and ratified inappropriate conduct by a subordinate lawyer. 2/10/2003
ABA-433

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21-Reporting Another Lawyer's Unethical Conduct

Because lawyers may violate the Model Rules when they engage in misconduct (such as criminal activity), “unrelated to the practice of law,” lawyers must report professional misconduct of a licensed but non-practicing lawyer (“even if it involves activity completely removed from the practice of law”) if the lawyer “knows” of the ethics violation and the violation raises a “substantial question” as to the wrongdoer’s honesty, trustworthiness or fitness as a lawyer. "Voluntary reporting made in good faith always is permissible . . . ." If reporting another lawyer’s misconduct would disclose information protected by Rule 1.6, the client must consent to the disclosure meaning that “the hands of lawyers are often effectively tied in these situations by the wishes or even whims of their clients.” Still, “it would be contrary to the spirit of the Model Rules for the lawyer not to discuss with the client the lawyer’s ethical obligation to report violations of the Rules” (because "this would allow the lawyer to circumvent them”).8/25/2004
1448

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21-Reporting Another Lawyer's Unethical Conduct

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

Even if non-consensual tape recordings are not illegal, a lawyer may not participate in such tapings or advise a client to do so. "Advising one's client to initiate a conversation under possibly false pretenses and to secretly record such conversation is improper deceptive conduct" that must be reported to the Bar. [Overruled in Virginia LEO 1802]1/6/1992
ABA-453

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21-Reporting Another Lawyer's Unethical Conduct

31-Protecting and Disclosing Confidences and Secrets

43-Conflicts of Interest - Miscellaneous

45-Law Firms - Miscellaneous

57-In-House Lawyers

Law firms' in house ethics counsel: may disclose and receive client confidences to and from other firm lawyers, because "unless a client has expressly instructed that information be confined to specific lawyers within the firm, the lawyer handling the matter does not violate the duty of confidentiality by consulting within the firm about the client's matter."; may but is not required to disclose to clients that the lawyer has discussed with other firm lawyers ethics issues involving that client; does not face a per se conflict in discussing with other firm lawyers possible conflicts of interest involving the client, but may face a conflict if the communications involve protecting the interests of the law firm or its lawyers rather than the client; should explain to the firm lawyer requesting advice whether the in house ethics counsel represents the law firm, the individual lawyer or both; must comply with Rule 1.13's requirement to disclose any wrongdoing up the law firm's chain of command; should consider a possible duty to disclose a colleague's unethical conduct, recognizing that "reporting under this rule is required only when the conduct in question is egregious and 'of a type that a self-regulating profession must vigorously endeavor to prevent.'"; should remember that any duty of disclosure is trumped by the duty of confidentiality to clients (either the law firm or the individual lawyer); recognize that he might have to withdraw from representing the law firm and the individual lawyer if they disagree about whether he should report wrongdoing; realize that other lawyers in the firm may have a duty to report a colleague's wrongdoing, because they do not have an attorney-client relationship with the law firm or the individual lawyer (but may have a duty of confidentiality to firm clients whose information is involved).10/17/2008
1886

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21-Reporting Another Lawyer's Unethical Conduct

36-Withdrawal from Representations

45-Law Firms - Miscellaneous

Lawyers must report an impaired colleague if the colleague engages in sufficiently serious misconduct (under Rule 8.3), but also must "take precautionary measures before" a colleague's impairment reaches that level; such lawyers: (1) must "take reasonable steps to prevent the impaired from violating the Rules" (including considering whether the lawyer must withdraw from a representation under Rule 1.16); (2) may be able to "work around or accommodate" the impairment by reducing the impaired colleague's workload, arranging for a supervisor until the impairment dissipates, restrict the impaired colleague's scope of practice, etc.; (3) should suggest that the impaired colleague seek appropriate help. If the impaired colleague has committed sufficiently egregious misconduct that requires reporting under Rule 8.3, arranging for the impaired lawyer to participate with Lawyers Helping Lawyers does not eliminate the reporting obligation. [Approved by the Supreme Court of Virginia 12/15/16]12/15/2016
ABA-429

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12-Withdrawing Lawyers (Including Non-Compete Issues)

21-Reporting Another Lawyer's Unethical Conduct

45-Law Firms - Miscellaneous

Lawyers practicing in law firms, law departments or similar organizations must establish policies and procedures assuring that all lawyers in the organization fulfill their ethical requirements and protect their clients -- even if a lawyer becomes impaired by substance abuse, mental illness, etc. Lawyers learning of ethics violations by an impaired lawyer may have an obligation to report the violation. Even if not obligated to report violations, lawyers may choose to reveal information about violations or the impairment -- unless confidentiality duties to clients or some other rules prohibit the disclosure. Lawyers in a firm or other organization from which an impaired lawyer has withdrawn may have an obligation to reveal the impairment if clients are deciding whether to retain the now departed impaired lawyer. The law firm or other organization does not have a duty to reveal the impairment if a client has already shifted its relationship to the departed lawyer, but must avoid any endorsement of the departed lawyer’s ability to represent the client (such as a joint letter from the law firm and the departed lawyer regarding the transaction, which "could be seen as an implicit endorsement by the firm of the departed lawyer's competence"). 6/11/2003
1004

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21-Reporting Another Lawyer's Unethical Conduct

This LEO provides a general discussion of a lawyer's duty to report criminal conduct by another Virginia lawyer. 12/9/1987
1093

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17-Fraud on the Tribunal

21-Reporting Another Lawyer's Unethical Conduct

41-Non-Virginia Lawyers

Two lawyers represent a felon. After the trial, the client advises one of the lawyers that the other lawyer (who is a member of an out-of-state bar) instructed the client to commit perjury. The lawyer must disclose this information to the tribunal and (if it raises a substantial question of the other lawyer's fitness to practice law) to the Virginia Bar and the bar of the state in which the other lawyer practices. [If information about the ethics violation is a client confidence, a lawyer may report the other lawyer's misconduct only if the client consents under Rule 1.6(c)(3); the lawyer considering whether to report must consult with the client under that Rule.]8/1/1988

Copyright 2000, Thomas E. Spahn