RULE 8.3 REPORTING PROFESSIONAL MISCONDUCT

Obsolete Date: 8/1/2004

(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.

COMMENT

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.

Reference: Minutes of the Professional Conduct Subcommittee of the Attorney Standards Committee on 12/13/85 and 01/31/86