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(Inquiry No. 2013-2 )
Accepting Compensation For Representation From Someone Other Than Client; Professional Independence of Lawyer; Conflict of Interest; Payment for Referrals
Inquiring counsel may undertake the representation or counseling of a family of a prospective student in a proceeding to have the student’s school district pay the student’s tuition at a private school at which the attorney is employed as in-house counsel or a consultant, provided that (a) the school does not direct or regulate the lawyer’s professional judgment in rendering such legal services or cause the lawyer to compromise the lawyer’s duty to maintain confidential information, and (b) the school and the family give their informed consent, in writing, to the representation.
Inquiring counsel may also accept referrals from a private special education school for representation or counseling families of prospective students in proceedings to have the students’ school district pay the students’ tuition at a private school provided that (a) counsel gives no compensation or anything of value to the school for the referral, and (b) the school does not direct or regulate the lawyer’s professional judgment in rendering such legal services or cause the lawyer to compromise the lawyer’s duty to maintain confidential information.
Judiciary Law Sec. 495
Pursuant to the Individuals with Disabilities Education Act (“IDEA”), children with disabilities are entitled to a free and appropriate public education. If a child’s public school district cannot provide an appropriate public education, the district may be required to pay tuition for the child to attend an appropriate private special education school.
Does inquiring counsel have a duty
Rule 8.3(a) of the New York Rules of Professional Conduct provides that:
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 shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.
Thus, a duty to report is triggered only if inquiring counsel “knows” that a violation has occurred. Rule 1.0(k) provides that:
“Knowingly,” “known,” “know,” or “knows” denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.
Thus, attorneys are not required to report “mere suspicions … which are based upon incomplete information or information which may fall short of clearly establishing the existence of a [violation].” This does not mean that an attorney “must wait until he has proof beyond a moral certainty that [a violation] has been committed.” Rather, the attorney simply “must clearly know, rather than suspect, that a [violation] has been committed” before there is an obligation to report. See, Simon’s New York Rules of Professional Conduct Annotated (2013 ed.), p. 39, quoting, In Re Doe, 847 F.2d 57, 63 (2d Cir. 1988) (addressing the standard of knowledge required to trigger the obligation to report fraud on a tribunal under what is now Rule 3.3).
If the “knowledge” requirement is satisfied, the question then arises of what level of violation requires reporting, and to whom the report must be made.
Comment  to Rule 8.3 elaborates that:
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 a tribunal or other authority empowered to investigate or act upon the violation.
This Committee expresses no opinion regarding whether the level of violation gives rise to a reporting requirement. This Committee is in accord with NY Eth. Op. 854, 2011 WL 1351741 (2011), at *2 (“Reporting Known or Suspected Violation of Rules of Professional Conduct by Another Lawyer”), in which the New York State Bar Association Committee on Professional Ethics opined:
As in N.Y. State 635, we express no opinion here on the question whether Lawyer P’s alleged conduct was a “violation of the Rules of Professional Conduct” or, if it was, whether the violation raises a “substantial question” as to Lawyer P’s “honesty, trustworthiness or fitness as a lawyer ….” Rule 8.3(a). Answering those questions would require us to make factual determinations about circumstances that may well be disputed, and would require us to evaluate the past conduct of an attorney other than the inquirer. As in N.Y. State 635, “It is for [Lawyer A] to determine, based on his knowledge of all the pertinent facts and circumstances, whether the foregoing prerequisites have been met” and, therefore, whether Lawyer A must report Lawyer P’s misconduct to an appropriate tribunal or disciplinary authority.
Even if inquiring counsel determines that a report need not be made, an attorney is nevertheless permitted to report reasonable suspicions of misconduct if the report does not reveal confidential information protected by Rule 1.6. Id. However, attorneys are admonished that it is improper to make a report of misconduct to a Grievance Committee, and subject another lawyer to investigation, solely to gain a tactical advantage in a matter. Id.
If inquiring counsel determines that a report is mandatory, the question then arises as to where the report may be made in fulfillment of the obligation.
Rule 1.0(w) provides:
“Tribunal” denotes a court … or other body acting in an adjudicative capacity.
While this Committee does not have the authority to opine on the conduct of judges, it is required to review the empowerment of courts to “investigate or act upon” reported violations, in order to determine whether a court is a tribunal to which a reporting obligation may be satisfied.
22 NYCRR § 100.3(D)(2), the Rules of the Chief Administrator of the Courts, provides:
A judge who receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Code of Professional Responsibility [sic] shall take appropriate action.
In NY Jud. Adv. Op. 05-30, 2005 WL 5870471 (2005), at *2, the New York Advisory Committee on Judicial Ethics opined:
Whether there is a duty to take action in a particular case is generally a matter of discretion. This Committee “is not authorized to construe the Code of Professional Responsibility [or] to determine whether an attorney’s specific conduct is a breach of the Code. The Committee can only reiterate the general principle … that a judge who becomes aware of troublesome conduct by an attorney … must determine whether, in the judge’s opinion, such conduct violates professional ethics, and if so, whether the violation is substantial, in which case the judge should report the violation.” Opinion 04-116, quoting Opinion 90-74 (Vol. V).
In NY Eth. Op. 822, 2008 WL 8013056 (2008), at *2 (“Lawyer’s Duty to Report Violation of Disciplinary Rule”), the New York State Bar Association Committee on Professional Ethics concluded:
DR 1-103 requires reporting to a tribunal or other authority empowered to investigate or act upon such violation. Although the Code does not further specify to whom reporting is required, the phrase “investigate or act” suggests that the “authority” must be a court of competent jurisdiction or a body having enforceable subpoena powers. Thus, a violation in the course of litigation could be reported to the tribunal before which the action is pending.1
Here, the allegedly violative conduct forms the very grounds for the complaint in the action being brought against the defendant attorneys. This conduct, therefore, will by its very nature be brought to the attention of the tribunal in which the case is filed, as part of the complaint itself. Under the Rules, this will satisfy any reporting obligation inquiry counsel may have.
Inquiring counsel also asks whether the defendants themselves have reporting obligations. This Committee, however, does not opine on the ethical responsibilities of others than the counsel who makes inquiry. As explained in Simon’s New York Rules of Professional Conduct Annotated (2013 ed.), at p. xi (emphasis in original):
Ethics committees will answer questions only about the inquiring attorney’s own conduct, not about some other attorney’s conduct. Ethics committees are not grievance committees, and will not render opinions concerning whether some other lawyer has done something wrong (or is planning to do something wrong).
Inquiring counsel, as plaintiff’s counsel, has no obligation to report alleged tortious wrongdoing by an attorney who is a defendant in an action in which the alleged tortious wrongdoing is the subject of the complaint, beyond the report which arises by the filing of the complaint itself in the court in which the action is commenced.
1 The referenced Disciplinary Rule of the New York Code of Professional Responsibility, which was superseded by the New York Rules of Professional Conduct, is identical to the present Rule 8.3(a), and thus, Opinion 822 remains effective.
[Approved by the full Committee on April 10, 2013]