The Lawyer's Duty to Report Ethical Violations
| Publication year | 1989 |
| Pages | 1915 |
1989, October, Pg. 1915. The Lawyer's Duty to Report Ethical Violations
A recent decision has renewed the attention of lawyers to a sometimes overlooked ethical duty.(fn1) The Illinois Supreme Court suspended a lawyer from the practice of law for one year for his failure to report to grievance officials the misconduct of another lawyer. The suspension was imposed in a proceeding in which the hearing board recommended the lawyer be reprimanded and the Illinois review board recommended dismissal.
This article discusses the Illinois case and the duty of a lawyer to report ethical violations.
In the case of In re Himmel, lawyer James Himmel was retained to recover the proceeds of the settlement of a personal injury claim which had been recovered on behalf of the client by another lawyer, John Casey. Upon investigation, Himmel discovered that Casey had kept the settlement proceeds for his own use, totalling $35,000. The client was to receive $23,233.34 remaining after the deduction of Casey's contingent fee.
Himmel was able to negotiate an agreement with Casey which called for Casey to pay $75,000 to the client and which provided that the client would not initiate any criminal, civil or attorney disciplinary action against Casey. When Casey breached the agreement, Himmel brought suit against Casey and recovered a $100,000 judgment for his client. However, the court noted that Himmel's failure to report Casey's dishonesty to grievance officials may have allowed others to be subjected to Casey's perfidity and thus interfered with the administration of investigations of other grievances filed by other clients of Casey.
Himmel claimed that he was merely carrying out the directions of his client, who wanted no more than to recover what was owed to her and that the knowledge he acquired was privileged. The Illinois court summarily rejected the first of these contentions. The desires of a client provide no more justification for violating an ethical duty to report knowledge of misconduct by another than such desires justify a lawyer engaging in dishonesty. As to Himmel's second contention, the court found that Himmel's knowledge was acquired in the presence of third persons and was intended to be communicated by Himmel to Casey, to the insurance company involved in the original settlement and to others. The knowledge Himmel had of Casey's ethical violations was therefore not subject to the attorney-client privilege.
During these times, assertions are routinely made that claims and defenses presented by opposing lawyers are frivolous or groundless, C.R.C.P. Rule 11 sanctions are imposed with increasing frequency and lawyers are willing and sometimes eager to present malpractice claims against other lawyers. Therefore, Himmel's case should concern lawyers as to their ethical duty to report knowledge they acquire as to misconduct of other lawyers. This ethical duty is set forth in D.R. 1-103(A):
A lawyer possessing unprivileged knowledge of a violation of D.R. 1-102 shall report such knowledge to a tribunal or authority empowered to investigate or act upon such knowledge.
(A) A lawyer shall not:
(1) Violate a Disciplinary Rule.
(2) Circumvent a Disciplinary Rule through actions of another.
(3) Engage in illegal conduct involving moral turpitude.
(4) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
(5) Engage in conduct that is prejudicial to the administration of justice.
(6) Engage in any other conduct that adversely reflects on his fitness to practice law.
A first consideration in connection with a lawyer's duty to report ethical violations is what should be reported. The Disciplinary Rule requires knowledge possessed by a lawyer to be reported. Although lawyers are often considered to be learned, lawyers do not frequently deal with knowledge.
Lawyers are not under a duty to report every suspicion they may have of possible ethical violations by other lawyers. Such reporting would substantially increase the burden of screening and investigation of grievances by the Grievance Committee. The Grievance Committee presently devotes a significant portion of its resources to screening and investigating claims of ethical violations which prove to be unfounded. Fifty-five percent of the grievances filed against Colorado attorneys are not docketed because initial screening reveals no colorable claim of misconduct, and over one-half of the docketed cases are dismissed.(fn2) Presumably, lawyers filing grievances are more likely than the general public to report colorable claims of misconduct, but 74 percent of docketed grievances filed by lawyers against their adversaries are eventually dismissed.(fn3) Increased reporting by lawyers of mere suspicions of misconduct may further divert resources of the Grievance Committee from its attention to actual violations into investigations of non-existent violations. Lawyers, however, may report mere suspicions of ethical violations as may any citizen.
When a lawyer directly observes conduct by another attorney which clearly violates ethical standards, the lawyer is considered to have knowledge of the violation. On the other hand, if a lawyer is informed by a third party, such as a client, of an ethical violation but has no direct information corroborating the hearsay, it cannot be said that the lawyer actually has knowledge of a violation. Lawyers often find themselves in a middle position, being neither an eyewitness to a violation nor the mere recipient of rumors. A lawyer may receive reports from different witnesses to an attorney's conduct and may have corroboration from documents, the attorney's statements or the lawyer's own observations.
In determining at what point the accumulation of information amounts to knowledge, the CBA Ethics Committee in Opinion 64 adopted the definition of the Restatement of Restitution,§ 10: "Knowledge means no substantial doubt." The Advisory Opinions Committee of the State Bar of...
To continue reading
Request your trial