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Abstract 96/97-14

Summary of Facts Provided

Lawyer A is a private hearing officer who presides over a private organization's arbitrations. Although not required by law, the organization's internal policy provides that Lawyer A will keep confidential the identity of the participants in the hearing. Internal policy also provides that the hearing officer's factual findings and conclusions, but not the identity of the participants, will be discussed with other lawyers who review the factual findings and conclusions before they are formally issued.

Lawyer A presided over a hearing in which Lawyer B disclosed that he had signed his client's name on a medical records release form, had his secretary falsely notarize the signature as if it were the client's signature, and obtained medical records utilizing the release form.

Issues and Conclusions

Lawyer A inquires whether: (1) there is a duty to report Lawyer B's conduct to the Supreme Court Grievance Committee; (2) the organization's internal confidentiality policy changes any reporting responsibility; and (3) the other lawyers who learn of Lawyer B's conduct during their review of Lawyer A's factual findings and conclusions have their own duty to report the conduct.

Colorado Rule 8.3(a) requires that a lawyer having knowledge that another lawyer has committed a rules violation which "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." Lawyer B's conduct as described raises the substantial question noted in Colorado Rule 8.3(a). Thus, Lawyer A has a duty to report the conduct.

Colorado Rule 8.3 provides that the reporting rule does not require disclosure of information protected by Rule 1.6 ("information relating to representation of a client"). However, the information here was not related to representation of any client of Lawyer A. The organization's internal confidentiality policy does not override Lawyer A's reporting duty under Colorado Rule 8.3(a).

Lawyer A has direct, first hand information about the conduct and thus has "knowledge" of the conduct (see the definition of "knows" in the Colorado Rules terminology section), and therefore has a reporting duty. In contrast, the other lawyers who learned the information only from Lawyer A do not have a duty to report. See CBA Formal Ethics Opinion 64 (revised 11/95). While the other lawyers may report the conduct, they have no formal duty to report.