PROPOSED AMENDMENTS TO RULE 8.3, RULES OF PROFESSIONAL CONDUCT
RULE 8.3 REPORTING PROFESSIONAL MISCONDUCT
(a) A lawyer having knowledge that another lawyer has committed a violation of these rules that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects shall initiate proceedings under the North Dakota Rules of Disciplinary Procedure.
(b) A lawyer having knowledge that a judge has committed a violation of the North Dakota Rules of Judicial Conduct that raises a substantial question as to the judge's honesty, trustworthiness, or fitness for judicial office in other respects shall initiate proceedings under the Rules of the North Dakota Judicial Conduct Commission.
(c) This rule does not require disclosure of information protected by Rule 1.6 or information gained by a lawyer or judge while participating as a committee member, peer counselor, or program staff in a lawyer assistance program established under Administrative Rule ________.
Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of these Rules. Lawyers have a similar obligation with respect to judicial misconduct. 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 discover the offense.
A report about misconduct is not required where making the report would involve the reporting lawyer in a violation of Rule 1.6. However, a lawyer excused from reporting a violation on that ground should encourage the client to consent to disclosure where prosecution would not substantially prejudice the client's interests.
If a lawyer were obliged to report every violation of these Rules, the failure to report even technical or insubstantial violations would itself be a violation of these Rules. 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. Whether a violation is "substantial" depends on the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. Similar considerations apply to the reporting of judicial misconduct.
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.
Information about a lawyer's or judge's misconduct or fitness may be received by a lawyer in the course of that lawyer's participation in a lawyer assistance program established under Administrative Rule ______ . In that circumstance, providing for an exception to the reporting requirements of paragraphs (a) and (b) of this Rule encourages lawyers to seek treatment through such a program. Conversely, without such an exception lawyers may hesitate to seek assistance from the program, which may result in additional harm to their professional careers and additional injury to the welfare of clients and the public. These Rules do not otherwise address the confidentiality of information received by a lawyer or judge participating in a lawyer assistance program. Confidentiality may, however, be imposed by the rules of the program or other law or rule.
Reference: Minutes of the Professional Conduct Subcommittee of the Attorney Standards Committee on 12/13/85 and 01/31/86; Minutes of the Joint Committee on Attorney Standards on 06/11/02, 11/15/02, 02/28/03, 09/25/03, and 11/14/03.