Ethics & The Law: Duty to Report Ethical Misconduct

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Texas Rules of Disciplinary Conduct Rule 8.03(a) (2017-2018) obligates a knowing lawyer to do his/her duty and report an unethical prosecutor or that knowing lawyer will face “knowing withholding” charges, if caught.  See In re Himmel, 125 Ill.2d 531, 533 N.E.2d 790 (1988) (caught lawyer’s one-year suspension was not probated). 

Must A Lawyer Report Another Lawyer’s Misconduct?

Courts have spoken on that query. Regarding another “caught lawyer,” in In re Brigandi, 843 So.2d 1083, 1085-1086, 1088-1089 (La. 2003), the court said:

“Based on evidence developed in this investigation, the ODC concluded respondent was deliberately evasive in his earlier voluntary sworn statement to the ODC. It further determined he failed to report Mr. Cuccia’s misconduct.”

[*1086]  Following its investigation, the ODC instituted two counts of formal charges against respondent. In the first count, involving the Egana matter, the ODC primarily alleged a violation of Rules 1.5(f)(6) (failure to refund unearned advance fee and place disputed fees in trust), 1.15 (failure to promptly deliver client funds and make an accounting) and 1.16(d) (failure to protect client interests upon termination of representation by failing to surrender client papers and refund unearned advance fee) of the Rules of Professional Conduct. As to count two involving the Cuccia matter, the ODC asserted alleged violations of Rules 3.3(a) (lack of candor to tribunal), 3.4(c) (failure to comply with tribunal orders), 8.1(b) (failure to respond to a lawful demand for information from a disciplinary authority), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.3 (failure to report professional misconduct), 8.4(a) (violating or attempting to violate the Rules of Professional Conduct), 8.4(c) [Pg 4] (engaging in conduct involving deceit, dishonesty, fraud, or misrepresentation), 8.4(d) (engaging in conduct prejudicial to the administration of justice) and 8.4(g) (failure to cooperate with the ODC) of the Rules of Professional Conduct.

In Count II, respondent’s actions may have caused no palpable harm to any clients, but violated the general duty imposed upon attorneys “to uphold the integrity of the bar.” Louisiana State Bar Ass’n v. Weysham, 307 So.2d 336 (La. 1975). Attorneys are often in the best position to witness the systemic harm to the legal profession from organized schemes of misconduct, such as solicitation, which might not be readily apparent to the general public. As a result, our professional rules impose an obligation on all members of the bar to report any misconduct they become aware of in the course of their practice. An attorney’s  [*1089]  failure to do so must be viewed as a serious offense.

Laurel Fedder, Current Development 2009-2010: Obstacles to Maintaining the Integrity of the Profession: Rule 8.3’s Ambiguity and Disciplinary Board Complacency, 23 Geo. J. Legal Ethics 571, 572, 580-581 (2010), said:

“On first read, the first three elements of Model Rule 8.3(a) appear potentially confusing, but further consideration shows that these elements – the violation requirement, the knowledge requirement, and the integrity requirement – make perceptible stipulations. *** Alleged violations of the duty to report fellow attorney misconduct are rarely prosecuted absent allegations of additional misconduct propagated by the reporting attorney. In re Himmel, a 1988 case out of Illinois, represents the first instance of attorney sanctioning based solely on a violation of the duty to report  [*581]  fellow attorney misconduct. Unfortunately, Himmel did not generate a trend; in the ten years following Himmel, only a single instance of attorney reprimand solely for violating Rule 8.3(a) occurred. Since then, the practice of pursuing reporting violations only when additional violations are alleged has continued. The Riehlmann court held the defendant in violation of both Rule 8.3(a) and Rule 8.4(d), and the Rule 8.3(a) violation was one of twelve violations the Brigandi defendant was charged with. Disciplinary boards’ failure to pursue allegations of reporting violations unless coupled with another offense gives attorneys the impression that the Model Rule, and its state variants, are inconsequential, thus disincentivizing compliance. If disciplinary boards expect attorneys to fulfill their responsibility to report misconduct, then the boards should fulfill their responsibility to take those reports seriously. The statement of Arizona ethics counsel Patricia A. Sallen substantiates the assertion of inadequate disciplinary board action: ‘During my years as a bar counsel, I don’t remember having even investigated an allegation that a lawyer violated Arizona’s Ethical Rule 8.3, which closely tracks Model Rule 8.3. I know I never prosecuted one.’ If the reporting rule is to be effective, disciplinary boards need to increase the attention they give to reports of its violation so as to convey to attorneys the importance of adhering to it.”                     

Thanks to Joseph Connors for this article.

TCDLA
TCDLA
Robert Pelton
Robert Pelton
Robert Pelton is the former President of the Harris County Criminal Lawyers Association (HCCLA), Associate Director for TCDLA, and Feature Articles Editor of the Voice, as well as serving as editor and assistant editor of Docket Call. Among his many honors, Robert was named by H Texas magazine as one of the top criminal lawyers in Harris County (2004–2010) and one of Houston’s Top Lawyers for the People in criminal law (2004–2010), and he is listed in the Martindale Hubbell Bar Register of Preeminent Lawyers. Robert has offices in Abilene and Houston.
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