Inquiry is made concerning the ethical obligation of lawyers participating in a Colleagues Program of a local bar to report ethical violations revealed or discovered as a result of group or individual counseling with other participants.
The Colleagues Program is an experimental group mentoring program, each group consisting of five lawyers practicing five or less years, one advisor having practiced six through ten years, one advisor having practiced eleven through twenty years, and one having practiced more than twenty years. The focus of each colleague group is to meet regularly for an interchange of ideas, thoughts and practices as to concerns facing the members in the practice; including such matters as ethics, practice standards, and relationships with clients, the courts, the community and fellow lawyers. The purpose of the program is to enhance the integrity and competence of the bar.
Disciplinary Rule 1-103 of the Code of Professional Responsibility requires lawyers possessing unprivileged knowledge of an ethics violation to report the violation to the Board of Professional Responsibility. The founders of the Colleagues Program believe that protection from the duty to report information arising from the program, whether in group sessions or individual counseling is vital to the successful operation of the program in that colleagues must be free to test ideas, explore all avenues and raise concerns in an open and free interchange. The privilege sought is analogous to the privileged communication between attorney and client. For example, in the event a single new colleague sought the legal advice of a single other lawyer colleague, the attorney-client privilege would attach and relieve the advising lawyer of a duty to report.
The Colleagues Program is a unique pilot program designed as a preventative tool that fits within the reasoning of Recommendation 4 of the May, 1991 Report of the American Bar Association Commission (McKay Commission) on Evaluation of Disciplinary Enforcement, which provides, in part, as follows:
Recommendation 4: Lawyer Practice Committee.
4.1 The Court should establish a Lawyer Practice Assistance
... The Lawyer Practice Assistance Committee should provide
guidance to the lawyer including, when
appropriate: (a) review of the lawyers' office and case management
practices and recommendations for improvement; and (b) review of the lawyers'
substantive knowledge of the law and recommendations for further study.
Disciplinary Rule 1-103 which provides the mandatory ethical duty to report ethics violations is derived from Canon 1 of the Code of Professional Responsibility. Canon 1 provides that a lawyer should assist in maintaining the integrity and competence of the legal profession. This opinion seeks to balance the tension between the Canon and the Disciplinary
Rule in the circumstances under consideration; and also balance the significant interest of the profession and the public in encouraging lawyers to seek the assistance of the Colleagues Program with the fundamental obligation of protecting the public from harm by reporting professional misconduct.
A privilege of not requiring disclosure of confidences and secrets is afforded to lawyers participating in Colleague Programs sponsored by local bar associations to the extent that such information would be confidential if it were communicated subject to the attorney client privilege, with a caveat to be aware of the exceptions to the privilege, i.e., an intent to engage in illegal activity, to convert client funds, to practice a fraud upon the court, etc.
This 13th day of September, 1991.
W.J. Michael Cody
Thomas H. Rainey
Walker T. Tipton
APPROVED AND ADOPTED BY THE BOARD