“I do perceive here a divided duty.”

William Shakespeare, Othello

Introduction

This is the first of a two-part series on the duty of lawyers to report the serious misconduct of other lawyers—sometimes pejoratively called the “Snitch Rule.”  You know—the one that says you have a duty to report another lawyer’s serious misconduct to the Disciplinary Commission.  “A lawyer who knows 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.”  Prof. Cond. R. 8.3(a).

Judges must also report to the Disciplinary Commission known, serious ethical violations by lawyers. Code of Judicial Conduct, Canon 3(D)(2). Judges also have to inform the Disciplinary Commission any time a lawyer is found guilty of a crime in their court.  Indiana Admission and Discipline Rule 23, section 11.1(a)(1).  And it’s a two-way street.  Lawyers also have a duty to report serious judicial misconduct to the Commission on Judicial Qualifications.  Prof. Cond. R. 8.3(b).

I don’t like the expression, “Snitch Rule.” It harkens back to our days on the grade school playground, when the worst thing you could call someone was a “Tattle-Tale.”  The connotation here is that the lawyer who reports serious misconduct violates some kind of code of mutual protection   The truth is that we are all diminished by other lawyers’ ethical lapses.  The public suffers, too.  We have a collective responsibility to address ethical lapses for the good of the public and for our own self-interest.  See Comment [1] to Rule 8.3.

Lawyers and judges sometimes get a bum rap for ignoring their reporting responsibilities. That’s not my experience.  The Disciplinary Commission not only receives frequent reports of alleged misconduct from lawyers and judges, but those reports lead to formal discipline at a greater rate than do grievances from clients or opposing parties.

No Self-Reporting Requirement

By its terms, the reporting rule applies to the conduct of other lawyers. It does not require a lawyer to self-report his or her own misconduct.  There may be moral or tactical reasons why a lawyer chooses to self-report, but it is not normally required.  There are two exceptions.  One is when a lawyer is found guilty of a crime—any crime, not only felonies.  But not infractions, which are civil, not criminal, in nature.  Admis. Disc. R. 23, section 11.1(a)(2).  The lawyer must self-report by submitting a certified copy of the finding of guilt to the Disciplinary Commission within ten days.  The second exception arises when a lawyer is licensed in another jurisdiction and is disciplined there.  Any final order of public discipline from another jurisdiction must be self-reported here within fifteen days.  Admis. Disc. R. 23, section 28(a).

The exception for self-reporting does not extend so far as to excuse partners or associates from reporting a colleague to the Disciplinary Commission when the criteria for mandatory reporting are present. This is not to suggest that it is an easy thing to do.

The Knowledge Requirement

Let’s take a careful look at this rule and figure out what it means. First, there is no prohibition against reporting suspected misconduct, a duty to report arises only when a lawyer “knows” about misconduct by another lawyer.  Knowledge is a term of art and is defined to mean “actual knowledge of the fact in question.  A person’s knowledge may be inferred from circumstances.”  Prof. Cond. R. 1.0(f).  This seemingly sets the bar rather high, and clearly requires more than speculation or surmise.  I think the Restatement (Third) of the Law Governing Lawyers got it about right: “[A] reasonable lawyer in the circumstances would have a firm opinion that the conduct in question more likely than not occurred.”  Id. at § 5, Comment i.  Note that the standard is objective, not a subjective one.

Substantial Misconduct

Second, not all known misconduct must be reported. Once upon a time, under the old Code, lawyers were required to report unprivileged knowledge of any disciplinary rule violation.  Code of Professional Responsibility, DR 1-103(A).  But it was unrealistic to think that lawyers would report all the unethical conduct of others; and the regulatory system would have been overwhelmed had they done so.  They didn’t.  In part because the reporting obligation swept too broadly, the system lacked credibility and lawyers rarely report misconduct—even serious misconduct.  See Comment [3] to Rule 8.3.  This led to the more nuanced reporting requirement of the current rule.

In the Rules of Professional Conduct, lawyers are called upon to report conduct raising a substantial question about another lawyer’s honesty, trustworthiness or “fitness as a lawyer in other respects.” “‘Substantial’ … denotes a material matter of clear and weighty importance.”  Prof. Cond. R. 1.0(l).  See also, Comment [3] to Rule 8.3: “The term ‘substantial’ refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware.”  In other words, it is not every slight or trivial matter that must be reported.  “This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent.”  Comment [3] to Rule 8.3.

Fitness as a Lawyer

Most of us would probably agree about what conduct reflects adversely on honesty or trustworthiness. That’s not necessarily the case with conduct reflecting adversely on a lawyer’s fitness in other respects.  To better understand the concept of fitness, it may be helpful to remember that it is also a measuring stick for bar admission.  “In satisfying the requirements of good moral character and fitness, applicants should be persons whose record of conduct justifies the trust of clients, adversaries, courts and others with respect to the professional duties owed to them, and whose record demonstrates the qualities of honesty, trustworthiness, diligence, or reliability. In the determination of good moral character and fitness, relevant considerations may include, but are not limited to the following: unlawful conduct; academic misconduct; making of false statements, including omissions; misconduct in employment; acts involving dishonesty, fraud, deceit or misrepresentation; abuse of legal process; neglect of financial responsibilities; violation of an order of a court; evidence of mental or emotional instability; evidence of drug or alcohol dependency; denial of admission to the bar in another jurisdiction on character and fitness grounds; and disciplinary action by a lawyer disciplinary agency or other professional disciplinary agency of any jurisdiction.” Admis. Disc. R. 12, section 2.

In my view there is a sliding scale that links the “knowledge” and “substantial question” elements of Rule 8.3(a). The less substantial the question of misconduct, the more confident the putative reporter should be before considering reporting to be mandatory.  On the other hand, when the misconduct in question is very serious, such as misappropriation of trust funds, the degree of knowledge required before reporting is mandatory should be less.  “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.”  Comment [2] to Rule 8.3.

Client Confidences Trump Reporting Duty

Often, lawyers learn of serious lawyer misconduct from representing a client. We all know that we must keep what we learn about our client’s cases confidential unless there is an exception.  See generally, Prof. Cond. R. 1.6.  If reporting another lawyer’s misconduct requires revealing client confidences and no exception applies, we have a collision of professional values: protecting client confidentiality versus reporting misconduct to aid in regulation of the bar.  Rule 8.3(c) resolves this conflict in favor of client confidentiality: “This Rule does not require reporting of a violation or disclosure of information if such action would involve disclosure of information that is otherwise protected by Rule 1.6….” The reporting lawyer who discloses confidences without client consent or another exception to the rule commits his or her own ethical violation.  To harmonize these conflicting values, lawyers are encouraged to solicit client consent to report “where prosecution would not substantially prejudice the client’s interests.”  Comment [2] to Rule 8.3.

Don’t be fooled by the Himmel case from Illinois that received so much notoriety some years ago.  The non-reporting lawyer’s license was suspended for a year in In re Himmel, 533 N.E.2d 790 (Ill. 1988).  At that time (and even now in Illinois, but not in most other states) the exception to the reporting duty was for “non-privileged” information, not “confidential” information.  Himmel knew of another lawyer’s misappropriation of funds because he was hired by a client to help her recover them.  Himmel’s knowledge of the first lawyer’s misconduct was confidential, but not privileged.  Himmel would have had to obtain client consent under Indiana’s formulation of Rule 8.3(a), but had to report without regard to client consent under the Illinois version of the rule.

Coming Soon to an Ethics Column Near you

Next month, I will discuss the proper timeframe for mandatory reporting under Rule 8.3 and some of the difficult questions that arise when a lawyer threatens to report alleged unethical conduct to gain a tactical advantage in litigation or negotiations.