Obligation to Report Matter to Board of Bar Overseers

April 10, 1992

CJE Opinion No. 92-3

You have requested advice from us with respect to your obligation to report a matter to the Board of Bar Overseers or to take other action. In 1980 Attorney A was appointed executor of an estate on a petition for probate allegedly signed by him. A qualifying bond and inventory both bearing his alleged signature were also filed. Attorney A claims no knowledge of those events and denies the validity of each of the three signatures. At that time Attorney A and Attorney B were associated in practice.

Allegations have been made that over the years Attorney B has misappropriated funds from the estate and from a particular legatee. You further state that it may be that Attorney B has mishandled funds of the estate.

You consulted Canon 3(B)(3)(b), which provides that "[i]f a judge shall become aware of unprofessional conduct by a . . . lawyer . . . he shall initiate appropriate investigative or disciplinary measures." Pursuant to that provision, you conducted several meetings with Attorneys A and B together with the legatee's attorney and the First Assistant Register of your court. As a result of the meetings you have appointed the legatee's attorney as Special Administrator. You now inquire whether, independent of any action the Special Administrator may take, you are required to proceed further.

We read the requirement to initiate appropriate investigatory or disciplinary measures to mean that you are required to initiate such of those measures as the circumstances require. When the initial allegations of misconduct were made, you correctly determined that the Rule required that "investigative measures" be taken by you. What you discovered indicates that Attorney B may have mishandled estate funds. Moreover, there is the matter of the claim by Attorney A that his signature was forged in the original proceeding. Those discoveries, in our view, make obligatory the more serious investigation involved in "disciplinary measures" undertaken by Bar Counsel because either Attorney A is lying or someone else, perhaps Attorney B from your account, is involved in forgery and perhaps theft.

Implicit in our conclusion is an interpretation of the quantum of knowledge that is needed to trigger Canon 3(B)(3)(b)'s requirement that a judge take action when he or she "becomes aware" of unprofessional conduct by a lawyer. The language does not seem to require that a judge "know" that unprofessional conduct has occurred before action is taken. If the judge knew of unprofessional conduct, there would be no need to require investigation. We believe it is enough that the judge is aware of sufficient information concerning unprofessional conduct to suggest the necessity of either initial judicial investigation or the more serious disciplinary investigation.