[1] Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. Lawyers have a similar obligation with respect to judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense.

 

[2] A report about misconduct is not required where it would involve violation of ER 1.6. However, a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client's interests.

 

[3] If a lawyer were obliged to report every violation of the Rules, the failure to report any violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term “substantial” refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances. Similar considerations apply to the reporting of judicial misconduct.

 

[4] The duty to report professional misconduct does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question. Such a situation is governed by the Rules applicable to the client-lawyer relationship.

 

[5] Information about a lawyer's or judge's misconduct or fitness may be received by a lawyer in the course of that lawyer's participation in an approved lawyers or judges assistance program. In that circumstance, providing for the confidentiality of such information encourages lawyers and judges to seek treatment through such a program. Conversely, without such confidentiality, lawyers and judges may hesitate to seek assistance from these programs, which may then result in additional harm to their professional careers and additional injury to the welfare of clients and the public. The Rule therefore provides that a lawyer may not report pursuant to paragraphs (a) and (b) information that would be protected by ER 1.6 if the relationship between the impaired lawyer or judge and the recipient of the information were that of a client and a lawyer.

 

Comment to 2002 Amendment to ER 8.3(d)

 

Information about a lawyer's or judge's misconduct or fitness may be gained by a lawyer participating in an approved lawyers' assistance program. For purposes of this rule, lawyers ‘participating‘ shall mean lawyers seeking assistance, program staff and volunteers, including members of MAC, as well as any other Arizona lawyer whose assistance is requested or approved by the MAP Director or MAC Chair(s) or Vice Chair(s). Treating information gained in this context as confidential encourages lawyers to seek the diverse services provided by such programs. It also ensures that lawyers assisting or providing services to the program as staff or volunteers are not subject to discipline for failure to disclose information that would otherwise be subject to reporting under paragraphs (a) and (b) of the rule. Without confidentiality, lawyers may hesitate to utilize program services, which may result in additional harm to clients, the public, or themselves, and may discourage lawyers from providing assistance and services offered by the program.

 

Comment to 2021 Amendment to ER 8.3(c)

 

The duty to report misconduct of a legal paraprofessional that raises a substantial question as to that individual's compliance with their code of conduct as set forth in ACJA § 7-210 does not apply to a lawyer who is retained to represent the legal paraprofessional. Similarly, the duty to report misconduct by an Alternative Business Structure (ABS) entity that raises a substantial question as to the entity's compliance with the code of conduct in ACJA § 7-209 does not apply to a lawyer retained to represent the ABS but does apply to lawyers who work in or have ownership interests in an ABS.