Md. R. Att'y 19-308.3
Md. R. Att'y 19-308.3
COMMENT
[1] Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Maryland Attorneys' Rules of Professional Conduct. Attorneys have a similar obligation with respect to judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense. For the definition of "knows under these Rules, see Rule 19-301.0(h) (1.0).
[2] A report about misconduct is not required where it would involve violation of Rule 19-301.6 (1.6). However, an attorney should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client's interests.
[3] If an attorney were obliged to report every violation of the Rules, the failure to report any violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term "substantial refers to the seriousness of the possible offense and not the quantum of evidence of which the attorney is aware. A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances. Similar considerations apply to the reporting of judicial misconduct.
[4] The duty to report professional misconduct does not apply to an attorney retained to represent an attorney whose professional conduct is in question. Such a situation is governed by the rules applicable to the client-attorney relationship.
[5] Information about an attorney's or judge's misconduct or fitness may be received by an attorney in the course of that attorney's participation in an approved attorney or judge assistance or professional guidance program. In that circumstance, providing for an exception to the reporting requirements of sections (a) and (b) of this Rule encourages attorneys and judges to seek assistance through such a program. Conversely, without such an exception, attorneys and judges may hesitate to seek assistance from these programs, which may then result in harm to their professional careers and injury to the welfare of client and the public. These Rules do not otherwise address the confidentiality of information received by an attorney or judge participating in such programs; such an obligation, however, may be imposed by the rules of the program or other law.
Model Rules Comparison: Rule 19-308.3 (8.3) is substantially similar to the Ethics 2000 Amendments to the ABA Model Rules of Professional Conduct, with the exception of wording changes to Rule 19-308.3(c) (8.3) and Comment [5].
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