One of the things we learned as children is that it’s better to tell on yourself than to have a classmate tell on you. In our practice, this translates into advising clients to self-report misconduct before the letter from the Office of Disciplinary Counsel arrives. We also learned that nobody likes a tattletale. Yet both Pennsylvania and New Jersey’s Rules of Professional Conduct impose a duty to report certain types of lawyer misconduct. Unfortunately, a large gray area of uncertainty in the law as to the scope of this duty makes it difficult to know when reporting on your colleague is required.
In Pennsylvania and New Jersey, Rule 8.3 states, “a lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority.” In both jurisdictions, the necessary exception to the rule is that you are not required to disclose information that you can’t disclose because of the attorney-client privilege. Thus, in our representation of lawyers, we are not required to report their misconduct, or the misconduct of other lawyers that we learn about through that representation. To do so would violate the privilege. Both Pennsylvania and New Jersey also have another equally important and necessary exception to the duty to disclose: information learned of by “a lawyer or a judge while participating in an approved lawyers’ assistance program” does not fall within the rule. New Jersey requires that the lawyer assistance program, not just be “approved,” but be administered by the bar association. Additionally, in New Jersey, but not in Pennsylvania, “if the effect of discovered ethics infractions on the practice of an impaired attorney is irremediable or poses a substantial and imminent threat to the interests of clients, then attorney volunteers, peer counselors, or program staff have a duty to disclose the infractions to the disciplinary authorities.”
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