You have asked the Committee for an opinion on the following facts: You represent a client in a legal malpractice claim against the client's former attorneys. The claim is based on the defendant law firm's alleged failure to appreciate the extent of the client's under insured motorist coverage under the terms of the client's automobile insurance policy. As a consequence, the defendant law firm allegedly recommended settlement with the carrier for an amount less than the value of the claim and the case settled. The client was an employee of the defendant law firm at the time of settlement and authorized a co-worker to sign the client's name to Release and Trust Agreement provided by the insurance carrier. The signature of the co-worker, representing to be that of the client, was notarized, as required by the Release and Trust Agreement, by a notary employed by the defendant law firm. The Release and Trust Agreement was forwarded to the carrier which then issued payment. No information is available on the knowledge of any lawyers at the defendant law firm with respect to the signature and notarization and no discovery has been conducted yet. You ask whether you are required to report these facts to the Disciplinary Board.
Under Rule 8.3(a), a lawyer must report any known violation of the Rules of Professional Conduct that raises a substantial question as to another lawyer's honesty, trustworthiness or fitness as a lawyer, subject to the restriction in Rule 8.3(c) which references Rule 1.6, among other things. Rule 5.3(c) provides that a lawyer is responsible for nonlawyer assistants' conduct if the conduct would be a violation of the Rules of Professional Conduct if engaged in by a lawyer and the lawyer orders, or with knowledge of the specific conduct, ratifies the conduct, or, if the lawyer is a partner or has direct supervisory authority over the person and knows of the conduct at a time when it could be avoided or mitigated, but fails to take remedial action. Rule 8.4(c) provides that it is professional misconduct to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
It is important that Rule 8.3(a) addresses actual knowledge of misconduct and not suspect misconduct (see Committee Opinion 90-7
). As such, since you do not have any actual knowledge that any attorney at the defendant law firm had any knowledge of its employees' conduct with respect to the signing and notarization of the Release and Trust Agreement, you are not required by Rule 8.3(a) to report these facts to the Disciplinary Board.
The Committee has not made any determination as to whether or not there would be a violation of the Rules of Professional Conduct that raises a substantial question as to a lawyer's honesty, trustworthiness or fitness as a lawyer if a lawyer ordered or had knowledge of the above mentioned conduct and ratified it, or if a partner or supervising lawyer had knowledge of the conduct at a time when the conduct could have been avoided or mitigated, but failed to take remedial action. That is an issue that can only be resolved once discovery has taken place and you are aware of what actual knowledge an attorney or attorneys at the firm had regarding the waiver of the notarization and signature of the release.