(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.
(c) This rule does not require disclosure of information otherwise protected by Rule 1.6 or other law.
Comment
[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 Rule 1.6. However, a lawyer should encourage
a client to consent to disclosure where prosecution would not substantially
prejudice the client’s interests. Information that is a client
confidence or secret under Rule 1.6 is “otherwise protected by
Rule 1.6” within the meaning of Rule 8.3(c). Rule 1.6(c), (d),
and (e) describe circumstances in which a lawyer may reveal information
otherwise protected by Rule 1.6. In such circumstances, a lawyer may,
but is not required to, make disclosures otherwise required by this
rule.
[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 Office of Bar Counsel. A lawyer who believes that another lawyer
has a significant problem of alcohol or other substance abuse which
does not require reporting to Bar Counsel under this rule, may nonetheless
wish to report the perceived situation to the Lawyer Counseling Committee,
operated by the D.C. Bar, which assists lawyers having such problems.
[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. Rule 1.6(c), (d), and (e) give a
lawyer discretion to reveal information otherwise protected by Rule
1.6 in some circumstances, despite a client-lawyer relationship. If
such circumstances exist, the lawyer may, but is not required, to reveal
the information as part of a report of misconduct under this rule. The
duty to report may also be limited by other law, including court rules
or orders, protective orders, and laws restricting disclosure of grand
jury or tax information.
[5] Rule 1.6(h) brings within the protections of Rule
1.6 certain types of information gained by lawyers participating in
lawyer counseling programs of the D.C. Bar Lawyer Counseling Committee.
To the extent information concerning violations of the Rules of Professional
Conduct falls within the scope of Rule 1.6(h), a lawyer-counselor would
not be required or permitted to inform the “appropriate professional
authority” referred to in Rule 8.3. Where disclosure is permissive
under Rule 1.6 (see paragraph 1.6(c), (d), and (e) for cases
of permitted disclosures), discretion to disclose to the “appropriate
professional authority” would also exist pursuant to paragraph
8.3(c). See also Comment to Rule 1.6, paragraphs [29], [30],
and [31].
