CHAPTER 4 - 4-2 REPORTING LAWYER MISCONDUCT

• Jurisdiction: United States

4-2 Reporting Lawyer Misconduct

A lawyer who knows¹⁸ that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyer's honesty, trustworthiness or fitness in other respects shall inform the appropriate professional authority.¹⁹ Because the legal profession is self-regulated and relies upon its members to police itself, Rule 8.3 reflects an important public policy.²⁰ A court may not allow the use of Rule 8.3's mandatory reporting requirement as a pretext for filing a motion to disqualify opposing counsel for an alleged conflict of interest.²¹ A firm using the threat of a grievance in negotiations with a former employee may have violated Rule 8.3(a).²²

This rule is little understood and very infrequently enforced. The Rosetta Stone case concerning a lawyer's duty to report misconduct is In re Himmel,²³ an Illinois case decided under the Code of Professional Responsibility. In Himmel, a lawyer learned that his former client had stolen settlement proceeds. He entered into an agreement with the lawyer seeking to obtain a return of the funds but did not report the lawyer to disciplinary authorities. The lawyer's theft was later discovered and he was disbarred. Himmel was suspended for a year for violating a rule prohibiting conduct involving moral turpitude for failing to report his colleague. Himmel defended himself on several grounds, including that his client had not authorized him to disclose the information about the theft and that doing so would require him to reveal a client confidence. None of his defenses succeeded.

Rule 8.3 is the modern iteration of the reporting rule and contains several important changes from the rule that existed when Himmel was decided. First, while the old rule and jurisprudence and opinions interpreting it required reporting of all instances of misconduct, the modern rule only requires reporting when the conduct raises questions regarding a lawyer's "honesty, trustworthiness or fitness as a lawyer in other respects." The rule also requires knowledge, which is defined in Rule 1.0(g) as "actual knowledge" and not merely suspicion.²⁴ Finally, section (c) of the rule requires that if the information has been acquired during participation in a lawyers' assistance program as provided for in Statutes 51-81d(f) or while service as a member of a bar association of judicial branch ethics committee, or if it is otherwise protected by Rule 1.6, it cannot be disclosed...