Opinion 90-7
(June 1990)

You have asked for an opinion on the following fact situation: An attorney who departed your firm left behind a dictated tape to a government authority in which he states in conversation (presumably to the secretary used to type this tape) that the statements he is making are lies. The matter under review involved negotiation of delinquent taxes and penalties, and his excuse for not paying them; which he states, is false. You ask if you have any obligation to turn this tape over to either the government authority or the Disciplinary Board.

Rule of Professional Conduct 8.4(c) states that:

It is professional misconduct for a lawyer to:

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation....

Rules of Professional Conduct 8.3(a) & (c) state that:

(a) A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that 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.

(c) This rule does not require disclosure of information otherwise protected by Rule 1.6.

The Committee is of the opinion that if you know for a fact that the letter on the dictated tape was actually sent, that this conduct is of the type contemplated by Rule 8.4c, and as the matter does not concern any client, that Rule 8.3a would require that this be reported to the Disciplinary Board and the government authority.

The Committee feels it important however to state that Rule 8.3(a) addresses actual knowledge of misconduct and not suspected misconduct. As such, if you do not have any actual knowledge that the letter was indeed sent, the Committee is of the opinion that you have no ethical obligation to report this matter.

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.