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Nobody likes rats, and I'm not referring to the Order Rodentia.
This premise is readily supported by the fact that some of the most agonized calls to the Ethics Hotline are from
attorneys seeking guidance on what triggers the reporting requirement. Likewise, the reporting requirement usually elicits the most grumbling during the Office of Professional Conduct's
ethics CLE presentations, with some attorneys going so far as to announce that they would never, under any circumstances, report another lawyer's misconduct.1 One more reason not to like it: the rule offers an ostensible cloak of "duty" for people who in my opinion are borderline tattletales,2 reporting easily remedied transgressions and insults from opposing counsel, or attempting to use a Bar complaint as leverage for settlement.
So the reasons for hating the rule run the gamut from a gut-level distaste for turning on our friends, to concerns about the serious burden of having to deal with vexatious Bar
complaints. It's more palatable, though, when you consider the rule in the context of the section in which it resides in the Rules of Professional Conduct: Maintaining the Integrity of
the Profession. The comment following the rule reminds us that self-regulation requires members to initiate disciplinary investigations, even over "apparently isolated
violation[s]." See Comment, Rule 8.3, R. Pro. Con. As the Supreme Court of Illinois has observed, discipline for breach of the duty "is animated by a desire to: maintain the integrity of the legal profession, further the ends of justice, and protect the public from unscrupulous attorneys." Skolnick
v. Altheimer & Gray, 730 N.E.2d 4, 17 (Ill. 2000).
Although its application is controversial,3 the relevant portion of the rule is terse. "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." Rule 8.3(a), R. Pro. Con. There's an important exception for information protected by the confidentiality provision,4 as well as for "information provided to or discovered by members of the Utah State Bar during the course of their work on the Lawyers Helping Lawyers Committee..." Id. at (c), (d). Otherwise, every lawyer potentially has an obligation to report certain types of misconduct among her colleagues.
Does it mean you have to report every perceived transgression? No. Only "those that a self-regulating profession must vigorously endeavor to prevent." See Comment, Rule
8.3, R. Pro. Con. Reporting "is especially important where the victim is unlikely to discover the offense." Id. There isn't a bright-line rule, such as a reporting
requirement for all criminal convictions. In my view, any misappropriation, any fraud on a court, clients, or third parties, and any perjury, falls within the ambit of the rule.5 Other cases must be determined individually.6
But what about negligence? Assuming you have all the appropriate underlying facts, should you report another lawyer's failure to file an action for a client before the
statute of limitations ran? In my opinion, the rule doesn't ordinarily require you to report a single instance of negligence, even if it's a whopper. In other words, if you're aware of a
chronic problem that manifests itself in multiple violations (such as the attorney blowing the statute, then concealing this fact from the client), or a pattern of misconduct (for
example, you see the attorney blowing statutes of limitation right and left), then you ought to report it, both in good conscience, and also within the prescription of the rule.
If the other lawyer's misconduct isn't something you actually know, you're off the hook in Utah. A mere suspicion, or even probable cause, isn't enough to trigger the requirement.7 The Preamble states that "'knows' denotes actual knowledge of the fact in question." See Preamble, R. Pro. Con.; see also Utah Ethics Adv. Op. Comm., Op. No. 98-12. This is a little tricky, though, because knowledge can be "inferred from the circumstances." Id.
The rule doesn't specify where the report should be made, but the comment identifies "the bar disciplinary agency, unless some other agency, such as a peer review agency,
is more appropriate in the circumstances." Comment, Rule 8.3, R. Pro. Con. Lawyers Helping Lawyers, not being a disciplinary agency, and having no judicially-mandated responsibility
for protecting the public, doesn't count; contacting that organization too might be a good idea, though, if the person you're reporting has substance abuse or emotional problems.
Does the rule require you to report yourself? No.8 But your reporting obligation doesn't dissipate merely because reporting another person also implicates you through the imputed responsibility rule.9
What are some real-life examples of Utah attorneys reporting the misconduct of other attorneys? In my recollection, reporting most often has involved attorneys submitting
information concerning various types of chicanery in the course of litigation. These are informal complaints made by the opposing counsel, often while litigation is pending, and although
many of the alleged transgressions might constitute rule violations, often they do not arise to the level at which Rule 8.3 would have been invoked. That is to say, although they may be a
legitimate basis for a Bar complaint, and some sort of discipline ultimately may ensue, these are reports that the reporter need not have made because the information did not raise
"a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects..."
Second most frequently, the OPC receives reports of an
attorney's theft of money, either from clients or from the attorney's firm. This type of information certainly falls within the "must report" category.
In third place are
reports from judges involving extreme instances of litigation-related conduct that is prejudicial to the administration of justice. In my experience, judges hate having to do this, but
most don't hesitate - especially when there are multiple instances, or when it involves the attorney's lack of candor to the court.
A distant fourth involves reports from
colleagues about a lawyer's impairment to the point of incompetence in representing clients, often progressing into dishonesty in communicating with clients and others. These are some of
the saddest cases, and in our experience, those who report this do so only as a last resort.
Is another person's report sufficient to absolve you of reporting? One court has said no. See Himmel, 533 N.E.2d 790, 792 (Ill. 1988). Also, even if your client directs you not to report it, the same decision says you must nevertheless. See
id. The court noted, "A lawyer may not choose to circumvent the rules by simply asserting that his client asked him to do so." Id.
Here's my suggestion:
reflect a little before you report anything short of serious misconduct. Examine whether the things you would allege, even if they might constitute technical rule violations, are more
appropriately raised and addressed in another forum, such as a court. If the answer to this is yes, bring it to the court first - after all, it's in a better position to determine what's
happening within the context of the litigation. Then, assuming the court enters an order sanctioning the attorney for the misconduct, or specifically finding a violation of the Rules of
Professional Conduct, by all means submit it to the OPC when the litigation is over. If the court declines, there may be little evidence to support a disciplinary investigation, in which
case you might well decide not to pursue it. Taking this course also has the virtue of avoiding any appearance of using a Bar complaint as a means of harassing your opponent.
What
happens if you don't report something that should have been reported, and that's the only violation you're charged with? The Himmel10 decision might be the first reported case on this subject, and it's been a source of hot debate ever since. Himmel was suspended solely for failing to report another lawyer's misappropriation of client funds. The client hired Himmel to recoup her money, and pursuant to her directive, participated in putting together a settlement agreement that called for repayment of the misappropriated funds in exchange for which no disciplinary action would be taken. All this came to light when the thieving attorney failed to repay the money, and the client sued on the contract. I'd guess that Himmel was shocked to discover that protecting the integrity of the profession and the interests of the public trumped the directive of his client. The moral of this tale is that you have to report another lawyer's serious misconduct even if your client doesn't want you to, and at least in Illinois, you can be sanctioned for failing to do so even if you haven't transgressed the rules in any other fashion.11
If you're having trouble deciding whether something falls within your duty to report, you can discuss it with an OPC attorney by calling the Ethics Hotline (801-531-9110).
It's often a relief for callers to discover that the OPC doesn't think reporting is required in a particular situation. We're not trying to discourage anyone from filing a well-founded
informal complaint, mind you, but there's a difference between what you must report and what you may report, and many attorneys would prefer not to unless they have to. With that said, taking the responsibility seriously is essential to maintaining this as a self-regulating profession - the system only works if everyone participates in making it work.
1. One court characterized a disbarred attorney's refusal to identify his accomplices in committing a crime as the "belief in a code of silence." In re Anglin, 524 N.E.2d 550, 554 (Ill. 1988). This continued belief prevented the former attorney from gaining readmission because the court believed it signified that "he would fail to report the misconduct of other attorneys if he, too, were involved in it," and this is inconsistent with the Illinois Code of Professional Responsibility. See
id. at 555.
2 ."Tattletales" isn't employed here as a term of art.
3. One authority notes that the duty has been historically disregarded. See Laws. Man. on Prof. Conduct (ABA/BNA) 101:202.
4. See Rule 1.6 (Confidentiality of Information), R. Pro. Con. Essentially, the obligation to protect confidentiality overrides the reporting duty. Remember, though, that there are some notable exceptions within Rule 1.6.
5. See e.g. In re Rivers, 331 S.E.2d 332 (S.C. 1984) (attorney reprimanded among other things for failing to report senior partner's role in improperly communicating through an investigator with jurors and their relatives); Attorney
U v. The Mississippi Bar, 678 So.2d 963, 972 (Miss. 1996) ("a lawyer is not obligated to report every transgression of our disciplinary rules, only the most serious of them.").
6. See Attorney U, 678 So.2d at 972.
7. Jurisdictions vary on this point. See e.g. Attorney U, 678 So.2d at 970 (comparing several jurisdictions).
8.
But be aware that if you make "full and free disclosure to the client or the disciplinary authority prior to the discovery of any misconduct," this may be entitled to some
weight as mitigation if you subsequently are found to have violated the Rules of Professional Conduct. Rule 6.3(e), Standards for Imposing Lawyer Sanctions.
9. See Rule 5.1 (Responsibilities of a Partner or Supervisory Lawyer), R. Pro. Con.
10. Failure to report may result in discipline. See e.g. In re Galmore, 530 S.E.2d 378 (S.C. 2000) (attorney reprimanded, among other things, for failing to report suspended attorney's offer to practice law during his suspension); In re Anderson,
769 A.2d 1282 (Vt. 2000) (attorney reprimanded for taking too long to report partner; mishandling of client trust accounts).
11. See also In re Dowd and Pennisi, 559 N.Y.S.2d 365 (A.D.2d 1990) (two attorneys received five-year suspensions for failing to report other attorney's demand for illegal kick-backs); motion for leave to appeal denied, 564 N.E.2d 672 (N.Y. Ct. of App. 1990).
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