Whether Subordinate Lawyer Must Alert Client and Report Superior’s Misconduct After Lawyer Has Left Practice
Where a subordinate lawyer learns that an employing lawyer has sent a client what purports to be copies of correspondence written on the client’s behalf, but where the letters were, in fact, never sent, the subordinate lawyer has a duty to assure that the client is informed of the deception and to report the employing lawyer to disciplinary authorities. These duties continue after the subordinate lawyer resigns upon learning of the deception.
Applicable Rules
- Rule 1.4 (Communication)
- Rule 1.16 (Declining or Terminating Representation)
- Rule 5.2 (Responsibilities of a Subordinate Lawyer)
- Rule 8.3 (Reporting Professional Misconduct)
- Rule 8.4 (Misconduct)
Inquiry
Inquirer, a lawyer, was hired through a temporary employment agency
to work for a sole practitioner on a particular matter. In the course
of the first few days of inquirer’s work, the employing lawyer
informed her that his client in the matter had recently insisted that
he write an aggressive letter to a third party, despite the lawyer’s
advice that sending such a letter was imprudent. The employing lawyer
further advised inquirer that when the client made such demands in the
past, his practice was to draft a letter that would satisfy the client’s
wishes but not send it to the addressee. Instead, the employing lawyer
sent a copy of the letter to the client to make it appear to the client
that the letter had been sent to the addressee. The employing lawyer
did not explain when these events had taken place and did not ask inquirer
to draft a fictitious letter.
Inquirer informed the employing lawyer that
she felt uncomfortable about this practice, and at the end of the first
week of her placement withdrew from the matter and resigned the temporary
position. Some weeks later inquirer informed the employing lawyer that
she believed that he had committed a serious violation of the Rules
of Professional Conduct, and requested that the client be informed of
the deceptions. As a result of these conversations, the employing lawyer
informed the client of the falsity of the prior letters and withdrew
from representation of the client.1
Inquirer raises two questions: 1) After leaving
the firm, does inquirer have a duty to assure that the client is informed
of the employing lawyer’s misrepresentations? 2) Upon leaving,
does inquirer have a duty to report the violation to disciplinary authorities?
In our opinion, the answer to both questions is yes.
Discussion
The conduct of the employing lawyer destroyed the heart of the lawyer-client
relationship. A client must be able to trust a lawyer and be confident
that the lawyer is sharing relevant information and dealing forthrightly
and honestly with the client. Deceiving the client about the lawyer’s
own actions in the matter destroys this fundamental aspect of the lawyer-client
relationship.
Dishonesty and deceit are professional misconduct
under Rule 8.4(c). Rule 1.4, moreover, enshrines a lawyer’s duty
of honest communication with the client. It demands that the lawyer
keep the client “reasonably informed of the status of a matter.”
In this case, the failure to keep the client informed took the form
of deliberately misleading the client about the lawyer’s actions
in the case.
Lawyers sometimes have clients who are obstreperous
or demand that the lawyer take actions that are inconsistent with the
lawyer’s best judgment. There are accepted ways of responding
to the difficulties such clients present, but affirmatively leading
the client to believe the lawyer has taken an action he has not in fact
taken is not among them. The harms that could befall a client who has
received a fictitious letter from a lawyer are easily imagined. But
even if no specific harm occurs, sending a fictitious letter to the
client so damages the professional relationship as to require condemnation
of the lawyer’s conduct.
1. Disclosure to the Client
Had inquirer remained in the employ of the offending lawyer and
continued to represent the client beyond the mere week she did, she
would have had an obligation to assure that the client was represented
consistent with the Rules of Professional Conduct, including the duty
of open and honest communication under Rule 1.4.2
The requirement of truthfulness in the representation that is part of
the Rule 1.4 obligation would have required her to take action to see
to it that no further fictitious letters be sent and that the client
be informed about the fictitious letters sent in the past.
Inquirer, however, no longer represents the
client, and we must ascertain what duty to inform, if any, she owed
to the client upon her withdrawal. Usually, withdrawal from representation
terminates the relationship with the client, leaving only limited residual
obligations, such as to protect client confidences and to avoid certain
conflicts. See Rules 1.6(f) and 1.9. The duty of communication is not
among these residual obligations. Inquirer did, however, have the duty
upon withdrawal to “take timely steps to the extent practicable
to protect a client’s interests, . . .” Rule 1.16(d). In
the unique circumstances presented in this case, we believe that one
of those timely and practicable steps is to assure that the client is
informed of the deceptions. The brevity of the representation by inquirer
left little time to fulfill the duty to notify the client of the misrepresentation
during the course of inquirer’s participation in the representation.
The only way to remedy the wrongdoing and prevent disadvantage to the
client was to act promptly to assure that the client became aware of
the deception.
We recognize that Rule 1.16(d) seems intended
to address the common situation where a lawyer or entire firm terminates
representing a client, not the instance where a single lawyer among
two or more on a matter withdraws. Nevertheless, both the language and
what we discern as the underlying purpose of the rule—to assure
that the client is not disadvantaged by the lawyer’s departure—apply equally in both instances. Comment [10] of the Rule states
that even when a lawyer is unfairly discharged by a client, the lawyer
still must take “all reasonable steps to mitigate the consequences.”
Surely, then, a lawyer who leaves on account of another lawyer’s
misconduct has a similar duty to mitigate. Mitigation here means assuring
that the client learn the truth about the fictitious letters.
Inquirer should, however, exercise her obligation
under Rule 1.16(d) in a manner least disruptive to the existing lawyer-client
relationship. Here, inquirer acted appropriately by approaching the
employing lawyer and securing his commitment to disclose his acts to
the client. If the employing lawyer had refused to inform the client
or raised substantial doubt in inquirer’s mind whether he would
do so, inquirer would have had a duty to inform the client directly.
2. The Obligation to Report to Disciplinary Authorities
The next question is whether inquirer has any additional obligation
to report the employing lawyer’s misconduct to Bar Counsel. Rule
8.3 requires reporting of violations of the Rules of Professional Conduct
“that raise a substantial question as to that lawyer’s honesty,
trustworthiness or fitness as a lawyer . . .” In Opinion 246,
we adopted the four-part test adopted by other jurisdictions for determining
whether this standard is met: (l) whether the reporting lawyer has knowledge
of the violation; (2) whether reporting can be accomplished without
disclosure of client confidences or secrets; (3) whether the violation
involves a disciplinary rule; and (4) whether the violation raises a
substantial question as to honesty, trustworthiness or fitness to practice
law.
All four elements are met in this case. The
first element—whether a lawyer has “actual knowledge”
of a violation—turns on two factors: a “clear belief”
that misconduct occurred and “actual knowledge of the pertinent
facts.” Opinion 246. There is no question here that inquirer clearly
believed misconduct occurred. The fact that inquirer left the temporary
placement after just a week because of her discomfort with the employing
lawyer’s conduct confirms that she believed the employing lawyer
had in fact engaged in serious wrongdoing.
We also conclude that inquirer had “actual
knowledge” of the violation through the admissions the employing
lawyer made directly to her. One might argue that inquirer did not have
“actual knowledge” in the sense of witnessing firsthand
the behavior of the employing lawyer whom she would be reporting. She
did not see the letters or know when and to whom the letters were written,
or what they said. But we do not interpret the requirement of “actual
knowledge” in Rule 8.3 to require direct observation of the underlying
facts that constitute a violation. One of the purposes of Rule 8.3 is
to require that lawyers report misconduct when the victim is not in
a position to discover it. Rule 8.3 does not require that a lawyer report
every hunch about wrongdoing. But neither should it require a lawyer
to conduct an independent investigation. The frank and unambiguous admission
by the employing lawyer that he had sent multiple fictitious letters
to this client in connection with this litigation is sufficient.
The remaining elements of the test are easily
met. It is clear that the subordinate lawyer could report the violation
without disclosing client confidences or secrets. The only “secret”
here was that the employing lawyer was deceiving the client. The third
and fourth tests, involving the violation of a disciplinary rule that
affects the lawyer’s honesty, trustworthiness, or fitness to practice,
are also clearly met. The employing lawyer’s agreement to notify
the client of the fictitious letters does not alter this conclusion,
since the violation involved the very serious offense of deliberately
lying to the client. Inquirer therefore must report the employing lawyer
to Bar Counsel.
Conclusion
In Opinion 246, we recognized that the judgment whether another
lawyer’s conduct raises a substantial question as to that lawyer’s
honesty, trustworthiness or fitness is a “solemn and unenviable
task.” Here, inquirer’s knowledge of serious misconduct
not only required that such a judgment be made, but imposed additional
duties on her.
Inquiry No. 96-3-9
Adopted: March 19, 1997
