Opinion 93-28
(January 1994)

You have asked the Committee for an opinion regarding the following circumstances as set forth in a letter dated November 23, 1993:

Client, who is the beneficiary of a decedent's estate, engages attorney B to review the actions of attorney A in administering the estate. Attorney A is the executor of the estate, which has been open for fourteen (14) years and in which there has never been an accounting. Every time client asked attorney A for information or for a distribution, client was put off and/or was given a small distribution.

Immediately upon his engagement, attorney B contacted attorney A asking for an accounting of the estate. Attorney A appeared at attorney B's office, and admitted that he had converted the funds in the estate for his own use, and he could not immediately repay them. Attorney A stated, however, that, if he were able to continue practicing law, he would be able to borrow enough funds to make client whole.

Client is satisfied with being made whole, and has instructed attorney B not to report attorney A to the Disciplinary Board or the District Attorney's Office.

Specifically, you have asked this Committee for guidance regarding your obligations under Rule 8.3 of the Pennsylvania Rules of Professional Conduct (Reporting Professional Misconduct).

Rule 1.6 (Confidentiality of Information) of the Pennsylvania Rules of Professional Conduct provides, inter alia, as follows:

(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and accept as stated in paragraph (b) and (c).

Rule 8.3 provides, inter alia, as follows:

(a) A lawyer having knowledge 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 respect, shall inform the appropriate professional authority.

(c) This rule does not require disclosure of information otherwise protected by Rule 1.6.

The Committee is of the opinion that the requirement of confidentiality set forth in Rule 1.6, and as expressed in Rule 8.3(c), supersedes the obligation to report professional misconduct provided for in Rule 8.3(a). In view of the fact that your knowledge of attorney A's professional misconduct is based solely on information relating to representation it cannot be revealed. See In re Ethics Advisory Panel Opinion No. 92-1, No. 93-41-MP (June 25, 1993 Supreme Court R.I.) (Rule 1.6 prevents disclosure of predecessor counsel's embezzlement under Rule 8.3 absent client consent); but see In re Himmel, 125 Ill. 531, 533 N.E.2d 790 (1989 Supreme Court Ill.) 1

Nonetheless, the Committee also directs your attention to a portion of the Comment under Rule 8.3 which observes:

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 uncover the offense.

A report about misconduct is not required where it would involve a 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 interest.

Accordingly, while you have no obligation to report and may not report without consent, the Committee suggests that you confer with the client to define whether she would consent to disclosure.
Notes

1. The Committee considered Himmel but chose not to follow that case because, unlike Illinois' DR 1-103(a) which was at issue in Himmel, Rule 1.6(a) protects a broader range of information than is protected by the attorney-client privilege.
   

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.