Confidentiality

Communication with the Member Assistance Program and Peer Support Volunteers, and the Member Assistance Committee is confidential as provided by ER 8.3(c) below.

ER 8.3. Reporting Professional Misconduct

(a) A lawyer who knows 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 respects, shall inform the appropriate professional authority, except as otherwise provided in these Rules or by law. 

(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.

(c) This Rule does not require disclosure of information otherwise protected by ER 1.6 or information gained by a lawyer or judge while serving as a member of an approved lawyers assistance program to the extent that such information would be confidential if it related to the representation of a client.

Comment

[1] Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct.  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. 

[2] A report about misconduct is not required where it would involve violation of ER 1.6.  However, a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client's interests. 

[3] If a lawyer were obliged to report every violation of the Rules, the failure to report any violation would itself be a professional offense.  Such a requirement existed in many jurisdictions but proved to be unenforceable.  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.  The term "substantial" refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware.  A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances. Similar considerations apply to the reporting of judicial misconduct. 

[4] 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. 

[5] 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 an approved lawyers or judges assistance program.  In that circumstance, providing for the confidentiality of such information encourages lawyers and judges to seek treatment through such a program.  Conversely, without such confidentiality, lawyers and judges may hesitate to seek assistance from these programs, which may then result in additional harm to their professional careers and additional injury to the welfare of clients and the public.  The Rule therefore provides that a lawyer may not report pursuant to paragraphs (a) and (b) information that would be protected by ER 1.6 if the relationship between the impaired lawyer or judge and the recipient of the information were that of a client and a lawyer.