Lawyers are duty-bound to vigorously represent the interests of their clients, and that can sometimes lead to some pretty contentious behavior in a courtroom or when two sides are negotiating a bitterly contested agreement. But vigorous advocacy is supposed to stop short of breaking the ethical rules that lawyers are duty-bound to follow.

Human nature being what it is, some attorneys go too far – for example, telling a lie, or withholding information they are obligated to divulge. If the opposing counsel learns of this ethical violation, he or she must decide what to do about it.

Rule 8.3 of the State Bar Act, part of California’s Business and Professions Code, says “a lawyer shall, without undue delay, inform the State Bar” when another lawyer has committed a criminal act or has engaged in conduct that “raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer.”

That sounds fairly straightforward. But what happens if the obligation to report misconduct to the Bar conflicts with an attorney’s obligation to act in the best interests of a client?

For example, let’s say a lawyer who is representing a client in a divorce proceeding uncovers solid evidence that the opposing counsel knowingly filed a forged document with the court. That certainly would be grounds for a Rule 8.3 complaint to the State Bar.

But the lawyer must also look at the possible effect on the client of filing that complaint.

Filing the complaint with the State Bar, the substance of which would be disclosed to the attorney accused of wrongdoing, could expose the client to embarrassment or harm.

Let’s say the forged document was supposedly signed and dated by the client on a date that the lawyer knows the client could not have signed it, because the client was on a cruise with someone other than the client’s spouse.

It certainly could be embarrassing to the client for the extramarital cruise to be disclosed. If the opposing side then used that information to extract a more favorable settlement, the filing of the Rule 8.3 complaint would have caused actual harm to the client.

Any fan of “Law & Order” or similar TV shows soon becomes familiar with an attorney’s duty of confidentiality. It prohibits lawyers from revealing information related to their representation of a client unless the client gives informed consent.

Similarly, lawyers owe each client a duty of loyalty. This obliges the attorney to protect the client in every possible way and to refrain from acting in a way that is adverse to the client’s interests without the client’s free and intelligent consent.

The duty of loyalty obligates the attorney to place the client’s interest over those of any other person – even including the interests of the attorney.

Let’s return to our example of the forged document in the hypothetical divorce case, and change some of the circumstances. Perhaps the client doesn’t care whether the cruise with a non-spouse is disclosed. Does that clear the way to file a Rule 8.3 complaint?

Perhaps not. The opposing counsel will certainly learn about the complaint and who filed it, and that inevitably will affect the relationship between the attorney filing the complaint and the opposing counsel. It is highly likely that the resulting friction between the two attorneys will reduce their ability to negotiate a divorce agreement that is acceptable to both parties.

Because a decision about filing a Rule 8.3 complaint is often intertwined with a client’s interests, it is prudent for attorneys to discuss the matter with the client, and fully explore these issues.

One option may be to delay filing a complaint until the client’s dispute has been resolved. The Bar asks to be informed of ethical breaches “without undue delay.” That suggests there may be circumstances that require a “due delay” before the process gets underway.

(It might be tempting for an attorney or a client to consider using the threat of filing disciplinary charges against an opposing counsel to gain a negotiating advantage, or to offer to refrain from filing a complaint in exchange for some concession. But either of these would be serious violations of Bar rules.)

So, while it may be clear that an attorney has stepped over the line and violated the ethical standards to which all attorneys are expected to adhere, it is not always immediately obvious how a lawyer aware of that misconduct must weigh the possibly conflicting obligations to the Bar, a client, and the court.

By Rachelle Cohen

This post is drawn from an article in the March, 2024, issue of Los Angeles Lawyer magazine, “When Sense of Duty Fails,” by Rachelle H. Cohen and Robert L. Kehr, of Valensi Rose, and Neil J. Wertlieb, of Milbank LLP.