A lawyer is representing a client in a contentious divorce proceeding. During a break in a deposition, the opposing counsel makes several disparaging remarks about the judge presiding over the case, including personal attacks on the judge's character and competence. The lawyer does not participate in these remarks but overhears them. What is the lawyer's ethical obligation regarding the opposing counsel's conduct?
- ATo advise the opposing counsel that such remarks are unprofessional and could be reported.
- BTo report the opposing counsel's conduct to the appropriate disciplinary authority.
- CTo ignore the remarks, as they were not made in open court and did not involve the lawyer's direct participation.
- DTo inform the judge about the opposing counsel's disparaging remarks.
Show answer & explanationAnswer & explanation
Correct answer: A. To advise the opposing counsel that such remarks are unprofessional and could be reported.
Rule 8.3(a) generally requires a lawyer to report another lawyer's misconduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects. While disparaging remarks about a judge are improper, they may not necessarily rise to the level requiring mandatory reporting under Rule 8.3(a) unless they indicate a more pervasive pattern of serious misconduct. However, Rule 8.4(d) prohibits conduct prejudicial to the administration of justice. A lawyer should at least advise the opposing counsel that such conduct is unprofessional and potentially reportable, as a first step to encourage self-correction, before immediately resorting to a disciplinary report.
Why the other options are wrong
- B. While reporting is an option for serious misconduct, not all unprofessional remarks automatically trigger mandatory reporting under Rule 8.3 unless they raise a substantial question about fitness. A less severe initial response may be warranted.
- C. Ignoring such conduct, especially if it could be prejudicial to the administration of justice, is not ethically sound.
- D. Informing the judge directly about remarks made outside of court, without attempting to address them with opposing counsel first, can be overly aggressive and may not be the most appropriate initial response given the circumstances.
Impartiality & Decorum of Tribunal (Lawyer Conduct)
Lawyers must maintain the impartiality and decorum of the tribunal, refraining from conduct intended to disrupt proceedings or disparage the court.
- Prohibits conduct prejudicial to the administration of justice.
- Includes remarks about judges or the judicial process.
- Lawyers have a duty to encourage professional conduct from others.
Memory trick: When colleagues stray, professional dialogue is the first way.