QUESTION: Attorney represents a health care provider in a medical malpractice case. Client is being sued for professional negligence. Attorney discovered from Client that the attorney representing the plaintiffs in the case had previously represented Client in a disciplinary proceeding before the state licensing board. The previous representation ended in a number of years ago. The disciplinary proceeding did not involve the plaintiffs in the pending malpractice claim, but there are allegations in the malpractice action that Client is incompetent, and that Client's alleged employer was negligent in employing Client due to incompetence. Confidential information gained in the prior representation could be used against Client in the present litigation. Attorney filed a motion to disqualify plaintiff's counsel. Does Attorney have an obligation to report this pursuant to Rule 4-8.3? ANSWER: The responses to the motion to disqualify and the evidence at any hearing on the motion should serve to clarify the facts of the situation. (1) If the court specifically finds that there is no conflict, or further facts lead Attorney to believe that opposing counsel had a good faith belief that there was no conflict, Attorney does not have an ethical obligation to report opposing counsel. (2) If the court disqualifies opposing counsel, but Attorney believes that opposing counsel had a good faith belief that there was no conflict, Attorney does not have an ethical obligation to report opposing counsel. (3) If the court disqualifies opposing counsel and Attorney believes that opposing counsel did not have a good faith belief that here was no conflict, Attorney has an obligation to report opposing counsel. However, under Rule 4-8.3(c), that duty is conditioned on consent by Client. In any event, as part of Attorney's duty under Rule 4-1.4, Attorney should advise Client of the option to file a complaint with OCDC.

Informal Opinion 2003-0089 QUESTION: Attorney is a prosecuting attorney and has information that another attorney has committed criminal acts. The other attorney has not pleaded guilty or been convicted. Is Attorney obligated to report the other attorney's acts? Would Attorney's obligation change if the other attorney pleads guilty or is convicted?

ANSWER: Attorney has an obligation under Rule 4-8.3(a) to report the information to the Office of the Chief Disciplinary Counsel. Under Rule 4-8.1(b), Attorney has an obligation to report the ultimate outcome to OCDC, if requested by that office.

QUESTION: Attorney has been retained to represent a client in a legal malpractice action against defendant attorney. The client retained the defendant attorney for representation in an employment discrimination suit. The defendant attorney drafted a complaint for the client to file pro se. The defendant attorney entered into an agreement with the client limiting defendant attorney's liability to the client for malpractice and the client was not independently represented. The defendant attorney also failed to advise the client that the client should obtain independent representation. Does Attorney have an obligation under Rule 4-8.3(a) to report the defendant attorney's violation of Rule 4-1.8(h)? ANSWER: Attorney should report this information, if Attorney's client consents. This opinion does not indicate a conclusion about whether the defendant attorney committed a violation of the rules. However, the information Attorney has described is information that should be provided to OCDC so a determination regarding whether a violation has occurred can be made.

QUESTION: Attorney´s firm represents creditors in their attempts to collect amounts owed to them by their debtors. Attorney has recently become aware of attorneys who are soliciting those debtors for representation in bankruptcy by sending them a letter. These letters appear to Attorney to be in violation of Rule 4-7.3. Attorney is aware that Attorney is required by Rule 4-8.3(a) to report violations of the Rules of Professional Conduct. Are the potential violations described at a level that should be reported? ANSWER: If Attorney believes that an attorney has violated the provisions of Rule 4-7.3, Attorney should report that attorney to this office so that we can make an independent determination regarding whether a violation has occurred.

QUESTION: Attorney is involved in a case in which opposing counsel has admitted to keeping notarized signatures of clients on file and subsequently attaching them to discovery documents or documents to be filed in court. The facts are disputed whether the signer actually reviewed the documents by fax or mail prior to the notarized signature being attached. Has opposing counsel violated the rules? ANSWER: Advisory opinions are not issued on the conduct of an attorney other than the one requesting the opinion. However, based on the information Attorney has provided, Attorney has a duty to report the information, including the name of the attorney, the case, etc., to the Office of Chief Disciplinary Counsel. The duty to report is found in Rule 4-8.3(a). Because Attorney has a duty under the Rules to provide this information, Attorney may submit it in the form of a "report" or a "complaint." If Attorney submits a complaint, Attorney will be considered the complainant in the same manner as anyone else who files a complaint. If Attorney submits a "report," Attorney will not be considered or identified as the complainant. Attorney also will not be notified of the disposition of the matter.

QUESTION: Attorney took over a case which was started by another firm. Attorney has now concluded that the previous firm committed malpractice. Does Attorney have a duty to make a disciplinary report? Does Attorney have an obligation to confront the other firm? Should Attorney advise the client that Attorney believes the other firm committed malpractice? ANSWER: Attorney does not have an obligation to report a simple malpractice case to this office. However, either Attorney or Attorney´s client may do so to enable us to determine whether the situation appears to involve a violation of the Rules of Professional Conduct, in addition to, or instead of, malpractice. Attorney may not advise the other firm of Attorney´s conclusions without the consent of Attorney´s client. Attorney does have an obligation, under Rule 4-1.4, to inform Attorney´s client of the information suggesting possible malpractice.

QUESTION: Attorney is current defense counsel. Attorney asks whether Attorney has a duty under Rule 4-8.3 to report previous defense counsel for disclosing confidential information. The information was disclosed in court after current defense counsel raised the issue of confidentiality to the court and current defense counsel´s objections were overruled. ANSWER: Based upon the information provided, the answer is: "No."

QUESTION: Attorney has knowledge that another attorney continued to negotiate settlement of a case and to engage in discovery after the other attorney´s client was deceased. The other attorney did not disclose the fact of the client´s death to the court or opposing counsel during this period. Does Attorney have a duty to report the other attorney´s conduct? ANSWER: Yes, Rule 4-8.3(a) requires the attorney to report the other attorney´s conduct. Attorney may indicate that Attorney is only reporting as a result of the duty to do so and that Attorney does not wish to be considered a complainant. Under those circumstances, Attorney will not be identified as a complainant and you will not be treated as a complainant under Missouri Supreme Court Rule 5.

QUESTION: Attorney is licensed in Missouri and state X. It appears that another attorney with whom Attorney has practiced has signed Attorney´s name without permission and entered an appearance in state X. The other attorney is not licensed in state X. Must Attorney report the other attorney to the Chief Disciplinary Counsel? ANSWER: Yes, under Rule 4-8.3(a).

QUESTION: Attorney A was present at a deposition at which Attorney B sought a continuance of the deposition. The deposition was of a non-party witness. When the other attorneys would not agree to continuing the deposition, Attorney B entered his appearance for the witness and instructed the witness to leave the deposition. The witness was under subpoena. The interests of the witness are potentially adverse to the party whom the other attorney was representing. Must Attorney A report the Attorney B under Rule 4-8.3(a)? ANSWER: If Attorney B entered into a conflict of interest by appearing for the non-party witness, Attorney A must report Attorney B´s conduct to this office.