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Council Interpretation 211
Duty to Report Breach of Rules of Professional Conduct
211/1 It is in the public interest that a member be required to report to the Institute apparent breaches by another member of the rules of professional conduct. The good reputation of the profession could adversely be affected if such matters were not reported. Rules 211.1 and 211.2 are not intended to require a member to report trivial matters or minor perceived faults of another member. Each mistake or omission by a member is not necessarily a breach of the rules of professional conduct. In deciding when to report, a member should believe that the matter raises doubt as to the competence, reputation or integrity of another member.
211/2 Rule 211.1 sets out specific situations where it does not apply. For example, the rule does not apply to disclosure of information obtained by a member
(a) in the course of the member's employment by an organization, such as a government taxation authority, where there is a legal requirement imposed by statute to maintain the confidentiality of information obtained through this employment;
(b) in the member's role as a practice inspector or practice advisor, who has been exempted for the purpose and to the extent specified by Council;
(c) in the course of an engagement, such as a litigation support engagement, when disclosure will result in the loss of solicitor-client privilege.
211/3 Under certain circumstances, such as the forensic investigation of a fraud, Rule 211.2 permits the reporting of a matter to be delayed until
(a) the client has consented to the release of such information, or
(b) the information has become known to third parties other than legal advisors, or
(c) it becomes apparent to the member that the information will not become known to third parties other than legal advisors.
211/4 Rule 211.2 attempts to strike a balance between the member's duty to the client and the member's duty to protect the public interest and maintain the reputation of the profession. Clients may assume that a member will not disclose information without consent, resist the obligation of the member to report, and even be reluctant to engage a member because of the reporting obligation. In addition, reporting without the client's knowledge or consent could result in a claim against the member. Thus the client must be informed that while the member will seek consent to report the information, ultimately, if the consent is not forthcoming, the obligation to the public and the profession will prevail and the member will be obliged to report.
211/5 A member reporting a matter does not have to carry out an investigation or reach a decision as to whether the rules of professional conduct have been breached. However, it is not enough simply to have a suspicion that there has been professional misconduct. What must be reported are the facts as known to the member along with any supporting documentation.
211/6 If a member knows that a matter involving apparent misconduct on the part of another member has come to the Institute's attention, the member does not have a duty to report the matter. The member must report if the member knows that certain facts have been concealed, distorted or otherwise not reported.
211/7 A member who, having reviewed Rules 211.1 and 211.2 and this interpretation, is in doubt as to whether a matter should be reported should consult Institute staff for advice and guidance. In certain circumstances, such as those described in paragraph 4 above, the member should also consider obtaining legal advice.
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