The Board of Professional Conduct released an advisory opinion regarding a lawyer’s duty to report unprivileged knowledge of another lawyer’s misconduct.

With the release of Advisory Opinion 2016-2, the board withdraws Advisory Opinion 90-01, which addressed the same topic under the former Code of Professional Responsibility.

Advisory Opinion 2016-2 addresses a lawyer’s possession of privileged information obtained during the representation of a client that raises questions about the ethical conduct of the client’s previous lawyer.  The board determined that under Prof.Cond.R. 1.6, a lawyer may not reveal information related to the representation of his client or protected by the attorney-client privilege, including information related to the possible misconduct of the client’s previous lawyer, unless the client consents to the disclosure.  A lawyer may encourage a client to consent to disclosure for purposes of reporting the misconduct under Prof.Cond.R. 8.3.

A lawyer with actual and unprivileged knowledge of another lawyer’s misconduct is required to report the misconduct to the Office of Disciplinary Counsel or a certified grievance committee, if the violation raises questions as to the other lawyer’s “honesty, trustworthiness, or fitness as a lawyer in other respects.”

Advisory Opinion 2016-2 is the second in a series of opinions that will be reissued by the board during the next several months. The board is evaluating previously issued opinions that offer advice under the former Code of Professional Responsibility or former Code of Judicial Conduct. These opinions will be updated and reissued to provide guidance under the existing Rules of Professional Conduct and Code of Judicial Conduct.

Advisory Opinions of the Board of Professional Conduct are nonbinding opinions in response to prospective or hypothetical questions regarding the application of the Supreme Court Rules for the Government of the Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the Ohio Rules of Professional Conduct, the Ohio Code of Judicial Conduct, and the Attorney’s Oath of Office.

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