Frequently Asked Questions Regarding a Lawyer's Duty to Report Misconduct

Should I report concerns I have about a lawyer? The Office of Attorney Regulation Counsel hears this question frequently. While our Office cannot provide legal advice, we can offer some guidance. Because the legal profession is considered to be “self-regulated,” it is important that lawyers and judges report concerning conduct so that we may further review and, if necessary, investigate those allegations.

While reporting misconduct sometimes is optional, there also are times when it is mandatory. Colo. RPC 8.3 Reporting Professional Misconduct addresses a lawyer’s professional obligation to report misconduct regarding lawyers and judges. The following are frequently asked questions regarding this duty to report.

Am I required to report every possible violation of the Rules?

No. Colo. RPC 8.3(a) provides: “A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.” Subsection (b) provides a similar requirement for reporting judicial misconduct.

Importantly, the Rule envisions the reporting lawyer “knows” of a violation of the Rules (not just suspects a violation), and the violation raises a “substantial question” regarding the lawyer or judge’s conduct. As Comment 3 notes, “A measure of judgment is, therefore, required in complying with the provisions of this Rule.” Comment 3 also explains “This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent.” Additionally, Comment 1 notes, “Reporting a violation is especially important where the victim is unlikely to discover the offense.”

Are there exceptions to the duty to report?

Yes. Importantly there are two main exceptions to the duty to report, as outlined in Colo. RPC 8.3(c): “This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while serving as a member of a lawyers' peer assistance program that has been approved by the Colorado Supreme Court initially or upon renewal, to the extent that such information would be confidential if it were communicated subject to the attorney-client privilege.”

Comments 4 and 5 elaborate further regarding these exceptions. Comment 4 notes, “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.” Thus, as subsection (c) and the Comment recognize, the duty to report does not apply to a lawyer who is representing another lawyer regarding their professional conduct. To suggest otherwise would largely eviscerate the reporting lawyer’s duty of confidentiality to their client, and would deter lawyers from seeking legal advice about their professional conduct.

Similarly, information learned through a Supreme Court-approved peer assistance program, if it would be confidential if it were communicated subject to the attorney-client privilege, need not be reported. As Comment 5 notes, without an exception for such programs, 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.”

I think I may have an obligation to file a request for investigation to comply with Colo. RPC 8.3, but I’m not sure. What resources are available to me?

To the extent you have concerns about a lawyer or judge’s conduct and wish to discuss it further to determine if you have an obligation to report such conduct, you may contact our Office at (303) 457-5800 to discuss your concerns further. While we cannot give legal advice, we can discuss whether the conduct implicates the Rules and whether the conduct may qualify as “substantial” under Rule 8.3(a). You also may choose to report such conduct to us even if you are not obligated to do so under Rule 8.3.

Many large firms or legal employers have in-house ethics counsel to help a lawyer determine whether misconduct should be reported to our Office. Another resource to discuss your concerns is the Colorado Bar Association Ethics Hotline. The hotline is staffed by members of the CBA Ethics Committee. They are available for a short consultation regarding ethics-related issues. For more information regarding the Ethics Hotline, click here.

Finally, in some cases, a lawyer or judge has concerns about a lawyer’s mental health and other issues that may not necessarily implicate the lawyer’s compliance with the Rules. In those cases, the reporting lawyer or reporting judge may wish to consider contacting the Colorado Lawyer Assistance Program (COLAP) to discuss their concerns and how the concerned lawyer or judge, or COLAP, may have a point of contact with the lawyer. Information regarding COLAP and their contact information is available here.