A lawyer may refrain from or delay reporting misconduct of his client's former lawyer, at the request of the client, when the underlying information upon which the complaint would be based was disclosed to the inquiring attorney during the course of representation and, therefore, is protected by ER 1.6. Since the situation does not involve an exception to the confidentiality rule, ER 1.6 trumps ER 8.3 and the facts cannot be disclosed.

FACTS^[1]

The inquiring attorney represents a client in a criminal case. He believes that the client's former lawyer violated an ethics rule, triggering his duty to report the former lawyer to the State Bar. However, the client specifically has requested that he not report the former lawyer. The client has told the inquiring attorney that it is his genuine belief that the former lawyer is sufficiently "well-connected" that the client could conceivably sustain severe personal injuries while in the custody of the Arizona Department of Corrections. The inquiring attorney informs the Committee that he has no personal knowledge to corroborate the client's fears.

QUESTION PRESENTED

May the inquiring attorney refrain from or delay reporting the client's former lawyer to the State Bar, if the client specifically requests that he not file the complaint?

ETHICS RULES INVOLVED

ER 1.6 and ER 8.3.

OPINION

For the purposes of responding to this inquiry, the Committee assumes that the elements set forth in ER 8.3(a) exist and that, therefore, the inquiring attorney has a duty to report the client's former lawyer to the appropriate professional authority unless the exception in subsection (c) applies.^[2] For a general discussion of the scope of ER 8.3(a) and (c), we recommend that the reader consult our Opinion 90-13 (July 18, 1990).

The exception set forth in ER 8.3(c), prohibits the filing of a report with the State Bar if the information concerning the attorney misconduct is protected by ER 1.6. The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. The rule applies in situations other than those where evidence is sought from the lawyer through compulsion of law. (See Comment to ER 1.6). Thus, it is clear that ER 1.6 is applicable under the circumstances. The underlying facts upon which the inquiring attorney based his determination of unethical conduct were obtained from his client during the course of the representation. ER 1.6 prohibits the disclosure of such information without client consent. The client has not given consent, in fact, he specifically has asked his counsel, the inquiring attorney, to refrain from revealing the information.^[3] Since this situation does not involve an exception to the confidentiality rule, ER 1.6 trumps ER 8.3 and the facts cannot be disclosed. We note, however, that where confidentiality concerns are not implicated, a lawyer's duty to report misconduct under ER 8.3 cannot be dictated by the client's wishes. See In Re James H. Himmel, 125 Ill.2d 531, 533 N.E.2d 790 (1988) (client's direction to her lawyer to not file a disciplinary grievance is no defense to a charge that the attorney failed to report another lawyer's misconduct). See also Geoffrey Hazard, Jr., and W. William Hodes, The Law of Lawyering (2dEd.), at pp. 942-944.

Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.

©State Bar of Arizona 1994