FLORIDA BAR ETHICS OPINION
November 9, 1977
Advisory ethics opinions are not binding.
An attorney has neither the duty nor the right to report to a grievance committee the ethics
violation of another attorney, when knowledge of the violation was derived from a confidence
received from a client during the course of an attorney-client relationship. The prohibition would
continue to apply if the same violation was later uncovered by the attorney during discovery
taken incident to litigation.
Note: The confidentiality rule was amended after this opinion was written. The current
confidentiality rule, 4-1.6, does not require a lawyer to reveal information “as required by
DR 1-103(A), 4-101(A)-(D), DR 7-102(B)(2)
Vice Chairman Waas stated the opinion of the committee:
The essence of the inquiring attorney’s question is whether a lawyer has
either a duty or a right to report to a grievance committee an ethics violation of
another lawyer when knowledge of such violation was derived from confidential
information determined from the inquiring lawyer’s client in the course of the
attorney-client relationship and, based upon that information, was also determined
by the inquiring attorney subsequently during discovery in a litigated case. The
client refuses to consent to such reporting, and the inquiring attorney believes that
divulgement of the information to the grievance committee would be to the
detriment of his client by creating a situation in which the other lawyer’s financial
ability to pay a promissory note to the client would be at least hampered; that note
was given in settlement of a claim by the client against the other lawyer in
connection with the handling of which the inquiring lawyer obtained the
information in the course of his representation of the client.
The Committee answers in the negative.
DR 4-101(B) provides that a lawyer shall not reveal confidences of his client “[e]xcept
when permitted under DR 4-101(C) and (D).” Under DR 4-101(C), “[a] lawyer may reveal . . .
[c]onfidences . . . when permitted under disciplinary rules.” For the reasons stated below we do
not feel that the disciplinary rules contain such permission in the context of the inquiry.
The disciplinary rules demonstrate that only in narrowly prescribed areas will the shield
protecting the attorney-client privilege and confidence of a client be lifted. One example is set
out in Opinion 75-19, in which the Committee said an attorney has a duty to disclose information
about perjury even though the information was received in confidence from a client.
DR 4-101, stating when an attorney shall reveal confidences, refers only to the attorney
so doing when required by law or when necessary to prevent an intended crime. Under the
instant facts, there is not shown to be any applicable requirement of law or intended crime.
This inquiry involves not only the proper treatment of confidential information under the
provisions of DR 4-101 referred to above, but also the proper treatment of such information
under DR 1-103 when it provides the basis for a lawyer’s possible reporting of a violation of the
Code of Professional Responsibility to a grievance committee. “Confidence” is defined by DR
4-101(A) to be the same as privileged information, which is referred to in DR 1-103(A).
DR 1-103(A), as to a lawyer’s handling of information for purposes of reporting an
ethical violation, states that he should reveal the information, and so report the violation, when
the information is unprivileged. We read DR 1-103(A) to mean that a lawyer should not report
ethical violations when his knowledge of same is gained from privileged, i.e., confidential,
information, and we find nothing in DR 4-101 to the contrary relative to the facts of this inquiry.
Accordingly, under both DR 4-101(B) as to the handling of confidential, i.e., privileged,
information and DR 1-103(A) as to reporting an ethical violation, the inquiring lawyer is
prohibited from reporting to a grievance committee the information generally described in this
The fact that the information is uncovered during subsequent discovery incident to
litigation does not alter the Committee’s opinion. In this context one cannot do indirectly what
cannot be done directly. In this instance, the attorney may not use the attorney-client relationship
to discover or verify information initially as a result of confidences shared during that
relationship and then disclose same on the basis that the information was not obtained as result of
that relationship. Cf. doctrine as to inadmissibility of derivative evidence indirectly obtained
through the use of evidence illegally obtained. Accordingly, we do not consider the information
which is the subject of this inquiry to have been converted into the status of “secret,” as opposed
to “confidential,” information within DR-101(A), defining “secret” information to include
information which is other than confidential information and which is gained in the professional
relationship. Therefore, we do not reach any question as to whether “secret” information
concerning an attorney’s conduct may or must be disclosed to a grievance committee under DR
1-103(A), which requires disclosure of “unprivileged” information, or any question as to any
interrelationship in this regard of DR 1-103(A) with DR 4-101(B), (C), and (D), which refer to
disclosure of both confidential and secret information. DR 1-103(A), as noted above, is the
Disciplinary Rule most specifically aimed at the reporting of unethical conduct to a grievance
However, if the information concerns conduct of the type described in DR 4-101(D), it
should be revealed, and if it concerns conduct of the type described in Opinion 75-19 and
DR 7-102(B)(2) (perpetration of a fraud upon a tribunal), it should be reported to the appropriate
court. “Tribunal,” as referred to in DR 7-102(B), in the context of this inquiry could only refer to
a court because the matter to which the inquiry refers has not been before a grievance committee;
we therefore need not, and do not, here address whether or not “tribunal” in 7-102(B) has
reference to a grievance committee.
The inquiring attorney also asks whether our answer as to his possible conduct of
reporting the information would be different if the client’s refusal to consent to such disclosure
of the information continues after the promissory note has been paid. Regardless of how we may
feel as to ramifications under those altered circumstances, our answer would not be different, the
reason being that the Code does not permit such conduct, at least absent the types of
circumstances referred to in DR 4-101(D) and DR 7-102(B). A substantial number of Committee
members are of the view that DR 1-103 of the Code should be amended to permit, if not require,
reporting such information to a grievance committee under those altered circumstances when it is
absolutely clear that such disclosure would not be detrimental to the client; the basis for that
view is the feeling that the client should not under those circumstances have the power to impede
disciplinary processes and cover up a violation of the Code.
In sum, under the facts presented here, the attorney-client privilege seals the mouth of the
inquiring attorney until the client unseals it.