Last month I discussed in general terms the duty to report certain types of misconduct and important exceptions to it. This month, I will focus on some more nuanced questions, like when lawyers should report misconduct and whether threats to report misconduct should be used as bargaining chips.
When to Report
It is most likely that a lawyer will become aware of another lawyer’s misconduct during the course of a legal representation. Must the lawyer make a report right away or may he or she wait until the pending matter is concluded? Rule 8.3 gives no clear guidance on this point, and there is no one-size-fits-all answer.
Serious misconduct should be reported immediately. After all, the purpose is to protect the public. If, for example, it is known that a lawyer has converted client funds from a trust account, there is a high probability that other clients’ or future clients’ funds are or will be at risk. To delay reporting is to invite further victimization.
A recent Louisiana case illustrates the perils of waiting to report, including the possibility of discipline of the lawyer who waited. In re Riehlmann, 891 So.2d 1239 (La. 2005). In that case, a former prosecutor confided in his friend, Riehlmann, that he had suppressed exculpatory blood evidence in order to obtain a criminal conviction in a death penalty case. Riehlmann urged his friend to correct the situation, but did nothing more for five years. Shortly before the defendant’s scheduled execution, Riehlmann finally got around to reporting his now-deceased friend’s misconduct. The Louisiana Supreme Court held that the disclosure was mandatory and came too late. When the criteria for mandatory reporting are met, a report should be made “promptly.”
Fanning the Flames of Controversy
Sometimes, though, a report of misconduct can have the effect of throwing gasoline on the glowing embers of a legal dispute—especially when the reported lawyer is opposing counsel. In these circumstances, it is sometimes better to delay reporting until the dispute is resolved, especially if the criteria for mandatory reporting aren’t met. This has the advantage of allowing a reassessment of the alleged misconduct when passions have cooled, and keeps the discipline process from becoming an impediment to resolving the dispute. “[T]he [reporting] requirement is commonly interpreted not to require a lawyer involved in litigation or negotiations to make a report until the conclusion of the matter in order to minimize harm to the reporting lawyer’s client.” Restatement (Third) of the Law Governing Lawyers § 5, Comment i.
There is plenty of gray area in deciding whether to report misconduct. Do I “know?” Is there a “substantial question?” Does it relate to “fitness to practice?” In the end, good faith is the key. If you find yourself thinking that reporting misconduct would primarily reap tactical advantages for your client, it’s time to think harder—in part because it is an objective reporting standard and in part because it just makes good sense. If you find yourself facing a questionable reporting situation, it is often a good idea to get a read on things from a trusted colleague who may be able to provide a dispassionate perspective on whether a report is mandatory or permissive, and whether a report should be made now or later. “A measure of judgment is, therefore, required in complying with the provisions of this rule.” Comment  to Rule 8.3.
The Games People Play
As advocates, lawyers are reluctant to pass up any opportunity to gain a tactical advantage. This happens when lawyers decide to raise questions about the ethical conduct of opposing counsel for no legitimate purpose other than to obtain an advantage in a case. Or they use the threat of a report to the Disciplinary Commission as leverage to improve their bargaining position. This abuses the discipline system and the role lawyers are to play in the profession’s regulation.
A recent case illustrates this. In Matter of Lehman, 861 N.E.2d 708 (Ind. 2007), a lawyer (wrongly) believed that opposing counsel and the judge had violated their respective professional codes. The lawyer informed his client about the alleged unethical conduct. Egged on by the lawyer, the client was understandably upset and wanted to file ethics complaints against both of them. As the case developed, the lawyer had a powerful need to get a trial date continued. Opposing counsel, who was ready for trial, had no interest in agreeing to a continuance. The judge was also unwilling to continue the trial date. At this point, Lehman called opposing counsel and explained that his client was upset about the alleged unethical conduct and inclined to file a grievance. He went on to state that he believed he could dissuade the client from doing so if opposing counsel would agree to a continuance. The lawyer made a similar threat to the judge if the judge would not recuse herself from the case.
The Court held that the lawyer’s conduct violated Prof. Cond. R. 8.4(d), because it was prejudicial to the administration of justice to use the threat of a disciplinary complaint as a coercive device for leveraging a concession from opposing counsel. The seriousness of the lawyer’s misconduct is reflected in the fact that the Court ordered the Respondent’s law license suspended for a period of 120 days.
Correcting Ethical Lapses
The implications of Lehman are broader than its facts. I believe the case stands for the proposition that the discipline process should not be used as a pawn to further private legal interests. It undermines the integrity of that process when lawyers threaten reports of alleged misconduct as bargaining chips in negotiations. So long as Rule 1.6 does not prohibited it, if a lawyer knows another lawyer has engaged in serious misconduct, knowledge of the matter must be reported. The duty to report should not be exploited for advantage in the case.
Should a lawyer even point out possible ethical violations to opposing counsel? I see no reason why this may not be done, and in some instances, it must be done. For example, when a lawyer believes in good faith that opposing counsel has a conflict of interest with a non-consenting former client who the lawyer now represents, the lawyer as the client’s agent must point the conflict out to opposing counsel. The lawyer may likewise indicate that a disqualification motion will be forthcoming if opposing counsel does not withdraw. To give another example, judges will rarely entertain disputes over discovery, even if one side is being abusive, until the parties have attempted to work the matter out between them.
To use our two examples, in a matter involving a claimed conflict of interest or abuse of discovery, may a lawyer demand that opposing counsel correct the problem or face the prospect of having the matter reported to the Disciplinary Commission? The answer is easy when the conduct in question must be reported: No. If reporting is mandatory, a lawyer may not bargain that duty away in exchange for a concession by the opposing side.
Protecting the Integrity of the Process
It is a closer question when the conduct is not subject to mandatory reporting, but I come down on the side of discouraging the use of disciplinary reports to gain private bargaining leverage. We must assume that the putative reporting lawyer believes in good faith that there is, to stay with our first example, a conflict of interest. If the lawyer conjures up meritless ethics claims for no substantial purpose other than to extract concessions from the other side, that conduct should be roundly condemned, much like Lehman’s was, and should result in professional discipline.
But even when a lawyer’s concern about an ethics violation is valid, we must keep in mind that the lawyer discipline system was designed, not to correct lawyer conduct for private benefit, but to protect future clients, the bench, the bar and the public from future misconduct. Consequently, the discipline process will not compel a lawyer who is burdened with a conflict of interest to withdraw from representation. Only a disqualification order can bring about that result. Likewise with discovery disputes—a disciplinary complaint will not result in protection from abusive discovery or coercion to comply with discovery. Only a protective order or order compelling discovery will accomplish that end.
It serves no useful purpose for lawyers to rattle their sabers by threatening to report misconduct if they don’t get their way. That will only fan the flames of adversity, rather than contribute to the productive resolution of a dispute. If counsel believes a matter should be reported, he or she should report it. Otherwise, the dispute should be submitted to a court for resolution.
Threats as Vehicles of Extortion
Even more abusive is when a lawyer believes in good faith that opposing counsel has engaged in unethical conduct and chooses to use that claim as a bargaining chip for concessions unrelated to the claimed violation. “You have a conflict of interest. If your client doesn’t meet our first settlement demand, we will report your conduct to the Disciplinary Commission.” This is nothing less than a form of extortion. To demand that the conflict of interest be cured (withdraw or face a disqualification motion) is one thing; to demand that the opposing client’s case be compromised in exchange for sparing opposing counsel the misery of a disciplinary referral is quite another. As the Court in Lehman concluded, this is conduct prejudicial to the administration of justice. See ABA Formal Opinion 94-383 for a similar conclusion.
The Indiana State Bar Association Legal Ethics Committee recently issued Opinion No. 1 of 2008, addressing whether it is ethical for a lawyer to threaten to report a real estate broker to the relevant regulatory body as part of negotiating a civil claim against the broker. 51, No. 10 Res Gestae 34 (June 2008). The opinion concluded that under some circumstances this would be ethical. In footnote 2, the opinion says that its “analysis would fit other types of professional licensing agencies as well.” Although the opinion discussed, in passing, the lawyer’s ethical duty to report misconduct under Rule 8.3, it does not clearly state whether the opinion’s rationale would apply equally to lawyer threats to report the misconduct of another lawyer. To the extent the Legal Ethics Committee believes threatening to report another lawyer to the Disciplinary Commission as a negotiating tool would be ethical under some circumstances, I respectfully disagree.
Lawyers have a collective stake in the integrity of the lawyer discipline system. Acting in good faith to report the serious misconduct of other lawyers is part of our shared responsibility. But we abuse the integrity of the system when we make it the bogeyman behind threats that are directed at furthering the private interests of our clients. As with most things in life, it can be a difficult line to walk, but life would not be nearly as interesting if it were not so.