Concept

Sequencing the Analysis

Limits on reporting: confidentiality exception and permissive reporting

Sequencing the Analysis

Model Rule 8.3(c) provides that Rule 8.3 does not require disclosure of information otherwise protected by Rule 1.6, or of information gained by a lawyer or judge while participating in an approved lawyers assistance program.¹ Because paragraph (c) qualifies the duties in paragraphs (a) and (b), a reporting problem is best worked in the order the Rule is built. First, does paragraph (a) or (b) impose a duty at all? Second, does paragraph (c) remove a duty that would otherwise exist? Third, once no duty remains, is the lawyer still free to report? Each step presupposes the one before it: paragraph (c) has nothing to remove until a duty exists, and the permission question has no content until the lawyer knows whether the report is compelled.

Confidentiality enters this order twice, and students tend to miss the second entry. Rule 8.3(c) uses it to suspend the mandatory duty, and Rule 1.6 uses it again to limit what the lawyer may do once the mandate is gone. A lawyer who finds no mandatory duty and concludes that a report is therefore optional has mistaken the absence of an obligation for the presence of a permission. If the information came through a client's matter, that conclusion has the lawyer reveal a client's confidence without consent. For protected information the answer is the same whether the duty failed for want of knowledge, for want of a substantial question, or because paragraph (c) removed it: the lawyer need not report, and may report only on the client's informed consent or under another Rule 1.6 exception. The sequence still starts with the duty, because a complete answer shows why the duty holds or fails before it turns to what the lawyer may do.

Exam Analysis Steps

Because each question depends on the answer to the one before it, the analysis works best as a fixed sequence that a written answer can follow line by line. The steps are these:

Ask whether the lawyer has actual knowledge of a violation that raises a substantial question about another lawyer's honesty, trustworthiness, or fitness to practice, bearing in mind that a minor violation falls short of that standard and creates no duty.²
If a duty exists, ask whether Rule 8.3(c) removes it, either because Rule 1.6 protects the information or because the lawyer gained it while participating in an approved lawyers assistance program; if neither clause applies, conclude that the lawyer must report.³
If no duty exists after the first two steps, ask whether Rule 1.6 protects the information, which turns on whether it relates to the representation of a client, whatever its source.⁴
If the information is not confidential, conclude that the lawyer may report as a matter of judgment; if it is confidential, conclude that the lawyer may report only with the client's informed consent or under another Rule 1.6 exception.⁵

The first two steps settle whether the lawyer must speak, and the last two settle whether the lawyer may. A lawyer whom the first two steps require to report never reaches the permission question, since Rule 8.3(c) removes the duty whenever Rule 1.6 protects the information. The assistance-program clause does its work at step 2 because it removes the mandate directly, without any help from Rule 1.6. Step 3 therefore does not decide a program case the way it decides a client-matter case, and paragraph (c) says only that the lawyer need not disclose that information.

Holding the seriousness of the violation constant while varying only how the lawyer learned of it shows how much the source of the information decides.

Hypothetical Illustration

A lawyer sitting in a restaurant watches an attorney from another firm move a client's trust-account check into a personal account. No client of the observer is involved, and the observer is not taking part in any assistance program. The observer has actual knowledge, and theft of client money goes to honesty, so step 1 finds a duty. Neither clause of Rule 8.3(c) applies, so the duty stands and the report is mandatory.

A volunteer counselor in a state bar's approved lawyers assistance program hears a participant describe taking client money in just that way. The counselor also has actual knowledge of a serious violation, so step 1 finds a duty here too. The information was gained while participating in an approved program, so the second clause of Rule 8.3(c) removes the duty at step 2, and the gravity of the theft does not restore it.

A client matter supplies a third channel for the same serious conduct. A client retained Himmel to sue her former attorney, who had converted her settlement proceeds, and Himmel was disciplined under the Model Code for failing to report.⁶ Run through the Model Rules, step 1 finds a duty, because the conversion is serious and Himmel knew of it. Step 2 removes that duty, because the information relates to the representation and Rule 1.6 protects it, so a modern Himmel in a Model Rules jurisdiction would not have to report.⁷ Because the information is protected, step 4 then limits him to a report made with the client's informed consent or under another Rule 1.6 exception. The same serious violation therefore produces three results: a required report when the lawyer saw it outside any representation, no duty when the lawyer heard it in an approved program, and no duty plus a consent requirement when the lawyer learned it through a client.

The opposite exercise holds the source constant and lowers the seriousness. A minor violation raises no substantial question, so step 1 ends the duty analysis before paragraph (c) matters, and the whole contest moves to the permission steps.

Hypothetical Illustration

While reviewing a client's file in a fee dispute, a lawyer finds that the client's former attorney mailed a solicitation letter missing a required disclaimer. The violation is minor and raises no substantial question about honesty or fitness, so no mandatory duty exists. The information came through the representation, so Rule 1.6 protects it at step 3, and at step 4 the lawyer may disclose it only with the client's informed consent or under another Rule 1.6 exception.

A different lawyer hears over lunch that a friend's firm mailed solicitation letters missing the same disclaimer. No client is involved, and the friend is not seeking advice. The violation is minor and no duty exists, but Rule 1.6 protects nothing here, so at step 4 the lawyer may report if a report seems worthwhile, and a lawyer who stays silent violates nothing.

Two features of the sequence carry the most weight in an answer. The duty to report is qualified by the duty of confidentiality, and it reaches only misconduct that indicates another lawyer's unfitness to practice.⁸ The first explains why the source of the information so often decides the outcome, and the second explains why a lawyer who knows of a trivial lapse has no duty even when nothing is confidential.

Sequencing the Analysis

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