Rule 8.3. Reporting Professional Misconduct

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the Office of Disciplinary Counsel.

(b) A lawyer who knows that a judge has committed a violation of the applicable rules of judicial conduct that raises a question as to the judge’s honesty, trustworthiness or fitness for office shall inform the Judiciary Commission. Complaints concerning the conduct of federal judges shall be filed with the appropriate federal authorities in accordance with federal laws and rules governing federal judicial conduct and disability.

(c) This rule does not require the disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program or while serving as a member of the Ethics Advisory Service Committee.

Background

The Louisiana Supreme Court adopted this rule on January 21, 2004. It became effective on March 1, 2004. The court amended the rule shortly thereafter, on May 12, 2004, to address in paragraph (b) reporting of wrongdoing by federal judges. This rule differs from ABA Model Rule of Professional Conduct 8.3 (2002) in some minor and in some major respects.

As to the minor differences, paragraphs (a) and (b) designate the “Office of Disciplinary Counsel” and the “Judiciary Commission” as the appropriate professional authorities to whom lawyers must report violations of the relevant standards of professional conduct. Paragraph (b) directs lawyers to report the wrongdoing of federal judges to federal authorities rather than to the Louisiana Judiciary Commission. Finally, paragraph (c) identifies the “Ethics Advisory Service Committee” in addition to the “approved lawyers assistance program” mentioned in Model Rule 8.3(c).

As to the major differences, this rule contains more expansive reporting obligations than are found in Model Rule 8.3(a-b). As to reporting lawyer misconduct, paragraph (a) requires the reporting of misconduct that raises a “question” as to another lawyer’s “honesty, trustworthiness or fitness as a lawyer in other respects . . . .” La. Rules of Prof’l Conduct R. 8.3(a) (2004). In contrast, Model Rule 8.3 requires reporting only if the misconduct in question raises a “substantial question . . . .” Model Rules of Prof’l Conduct R. 8.3(a) (2002) (emphasis added).1

As to judicial misconduct, paragraph (b) requires the reporting of misconduct that raises a “question” as to a judge’s “honesty, trustworthiness or fitness for office . . . .” La. Rules of Prof’l Conduct R. 8.3(b) (2004). In contrast, Model Rule 8.3(b) requires reporting only if the misconduct in question raises a “substantial question as to the judge’s fitness for office . . . .” Model Rules of Prof’l Conduct R. 8.3(b) (2002) (emphasis added).2

Comments to ABA Model Rule 8.3

[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.

[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 an exception to the reporting requirements of paragraphs (a) and (b) of this Rule encourages lawyers and judges to seek treatment through such a program. Conversely, without such an exception, 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. These Rules do not otherwise address the confidentiality of information received by a lawyer or judge participating in an approved lawyers assistance program; such an obligation, however, may be imposed by the rules of the program or other law.

Annotations

Reporting Lawyer Misconduct

A lawyer must immediately report to the Office of Disciplinary Counsel any violation of the Rules of Professional Conduct that raises a question as to another lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects–unless doing so would divulge confidential information. See La. Rules of Prof’l Conduct R. 8.3(a) (2004); id. Rule 8.3(c); In re Tolchinsky, 740 So. 2d 109 (La. 1999) (failure to report unauthorized practice of law by another lawyer). This reporting obligation is “triggered when, under the circumstances, a reasonable lawyer3 would have ‘a firm opinion that the conduct in question more likely than not occurred.’”4 See In re Riehlmann, 891 So. 2d 1239, 1244 (La. 2005) (quoting Attorney U v. Mississippi Bar, 678 So. 2d 963 (Miss. 1996); Restatement (Third) of the Law Governing Lawyers § 5 cmt. 1 (2000)). For a general discussion of a lawyer’s reporting obligations, particularly in the context of litigation, see ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 94-383 (1994).

No Duty to Self Report

This rule does not require a lawyer to report the lawyer’s own violation of the Rules of Professional Conduct. First, the text of the rule refers explicitly to the obligation to report a violation by “another lawyer.” La. Rules of Prof’l Conduct R. 8.3(a) (2004) (emphasis added). In contrast, the 1987 version of this rule imposed the reporting obligation as to any “violation of this code” without reference to the violation being committed by “another” lawyer. La. Rules of Prof’l Conduct R. 8.3(a) (1987). Second, the ABA Standing Committee on Ethics and Professional Responsibility has opined that a lawyer is not obliged to report his or her own misconduct. See ABA Comm. on Ethics and Prof’l Responsibility, Informal Op. 1279 (1973). Finally, the Fifth Amendment privilege against self-incrimination should protect lawyers from having to self-report certain types of serious misconduct to the Office of Disciplinary Counsel. See Model Rules of Prof’l Conduct R. 8.1 cmt. 2; see also La. Rules of Prof’l Conduct R. 8.1(c) (2004) (permitting lawyers to refrain from cooperating with ODC investigation upon “openly expressed claim of a constitutional privilege”).

Disciplinary Sanctions

Absent aggravating or mitigating circumstances, the following sanctions are generally appropriate in cases involving violations of Rule 8.3: disbarment, when the lawyer knowingly engages in conduct that is a violation of a duty owed to the profession with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system; suspension, when the lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system; reprimand, when the lawyer negligently engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system; and, admonition, when the lawyer engages in an isolated instance of negligence that is a violation of a duty owed to the profession, and causes little or no actual or potential injury to a client, the public or the legal system. See ABA Stds. for Imposing Lawyer Sanctions stds. 7.0-7.4 (1992).

Notes

This page was updated on August 8, 2013.

  1. The former Louisiana rule on reporting lawyer misconduct, in effect from 1987 through February 29, 2004, had an even broader reporting obligation than is contained in the current rule. The former rule required a lawyer to report “unprivileged knowledge or evidence” of any ethical violation by a lawyer–no matter how trivial. Compare Model Rules of Prof’l Conduct R. 8.3(a) (2002) with La. Rules of Prof’l Conduct R. 8.3(a) (1987). In 1985, the Task Force concluded that it was inappropriate to put a lawyer “in the position of making a subjective judgment” regarding the significance of a violation. See Report and Recommendation of the Task Force to Evaluate the American Bar Association’s Model Rules of Prof’l Conduct, at 24 (Nov. 23, 1985). The Task Force concluded that it was “preferable to put the burden on every lawyer to report all violations, regardless of their nature or kind, whether or not they raised a substantial question as to honesty, trustworthiness or fitness.” Id. at 24-25.

    In 2002, a divided LSBA Ethics 2000 Committee recommended that the provisions of the former rule be retained. However, the LSBA House of Delegates thereafter rejected the Committee’s recommendation and suggested that the court adopt ABA Model Rule 8.3 verbatim. In January 2004, the court opted for middle ground and enacted the present rule.

  2. The former Louisiana rule on reporting judicial misconduct, in effect from 1987 through February 29, 2004, had a significantly narrower reporting obligation than is contained in the present rule. The former rule did not require lawyers affirmatively to report judicial misconduct, but merely to “reveal fully such knowledge or evidence upon proper request of a tribunal or other authority empowered to investigate or act upon the conduct of lawyers or judges.” La. Rules of Prof’l Conduct R. 8.3 (a) (1987).
  3. Arguably, the Louisiana Supreme Court in Riehlmann erroneously created an objective reporting trigger despite that the plain language of Louisiana Rule 8.3 requires subjective knowledge.
  4. Note that the Riehlmann opinion applied the pre-2004 revision version of Rule 8.3. Under the new rule, mere knowledge of a rule violation does not trigger a reporting obligation unless that violation also raises a question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer. See La. Rules of Prof’l Conduct R. 8.3(a) (2004).