HOW DO LAWYER DISCIPLINARY AGENCIES ENFORCE RULES AGAINST LITIGATION MISCONDUCT? OR DO THEY? RESULTS OF A CASE STUDY AND A NATIONAL SURVEY OF DISCIPLINARY COUNSEL.

• Author: Goldschmidt, Jona

1. INTRODUCTION II. LITERATURE REVIEW III. BACKGROUND TO CASE STUDY A. Illinois Attorney Registration and Disciplinary Commission B. Relevant Illinois Supreme Court Opinions 1. Litigation Misconduct and Ethics 2. ARDC Independence IV. STANDARDS GOVERNING LAWYER DISCIPLINE A. Restatement Rules and Procedural Guidance B. ABA Guidance on Lawyer Disciplinary Enforcement V. THE HIMMEL COMPLAINT A. Allegations B. Rationales for Dismissal of Complaint Without Investigation 1. Deference to Courts 2. Mere "Argumentation, Characterization, or Conclusion" 3. Likelihood of Meeting Clear and Convincing Burden VI. NATIONAL SURVEY OF LAWYER DISCIPLINE AGENCIES A. Method B. Results 1. Policies Regarding Investigations 2. Defining "Investigation" 3. Statutory or Rule Requirements 4. Exoneration Cases 5. Relative Severity of False Statements of Law and Fact VII. DISCUSSION A. The Institutional Choice Question B. Recommendations C. Counter Argument D. Future Research VIII. CONCLUSION I. INTRODUCTION

   Lawyers everywhere, beginning with their law school training through the bar admission process, and later in continuing legal education courses, know that they may not make false statements of law or fact in litigation, or conceal material evidence. They are also forbidden from filing and pursuing non-meritorious actions. The professional ethical duties and prohibitions imposed on lawyers in litigation are enumerated under the ABA Model Rules of Professional Conduct ("MRPC") and its state variants. These obligations collectively fall under the general duty to act with "candor towards the tribunal," (2) and related prohibitions against dishonesty and acts prejudicial to the administration of justice. (3) While the phrase, "candor towards the tribunal" has multiple meanings, this and related ethical duties will be referred to in shorthand form as litigation misconduct.

   This article examines the relationship between courts and lawyer discipline agencies with respect to sanctions for litigation misconduct. It will focus on the enforcement or non-enforcement of sanctions by lawyer discipline agencies subsequent to court-ordered sanctions in the predicate case. In other words, this article will address what happens when litigation misconduct occurs, but (a) neither the court nor an aggrieved party was aware of it during the litigation; (b) the trial court grants a sanctions request against the offending lawyer; or (c) the sanctions request was considered and denied, thus "exonerating" the lawyer. In these cases, the question is whether lawyer discipline agencies investigate and prosecute subsequent complaints made against lawyers for litigation misconduct, or whether they defer to the courts on the issue.

   Part II presents a review of the literature on the subject, which is scant. Some commentators note the reluctance of disciplinary agencies to prosecute lawyers for litigation misconduct, preferring to refer the matter back to the courts. Professor Peter Joy's empirical study of the relationship between Rule 11 sanctions and state disciplinary referrals is described. While he supports the institutional choice made by lawyer discipline agencies toward non-prosecution, this article takes the opposite view.

   Part III begins with a description of the three-stage process for lawyer discipline in Illinois, which is initiated by the Illinois Attorney Registration and Disciplinary Commission ("ARDC"). It reviews recent prosecution data regarding cases of litigation misconduct. This is followed by a review of the state supreme court cases relevant to litigation misconduct, and the purpose and independence of the ARDC.

   Part IV reviews the relevant standards that guide professional ethics and disciplinary enforcement for lawyer misconduct. These are contained in two sources: the Restatement of Law Governing Lawyers and the ABA's Guidance on Lawyer Disciplinary Enforcement. As judged by these standards, it appears that the ARDC failed to meet its responsibility to the general public by refusing to investigate the litigation misconduct described herein.

   Part V presents a case study of two lawyers alleged to have made false statements of law and fact, concealed evidence, and filed an unwarranted sanctionable sanctions petition against a pro se litigant in an Illinois small claims court. It then summarizes the reasons given by the ARDC for refusing to investigate the allegations.

   Part VI reports the results of a national survey of state lawyer disciplinary counsel regarding their willingness to conduct investigations into litigation misconduct where courts either failed to rule on the misconduct or ordered sanctions against offending lawyers. This part reports survey responses from disciplinary counsel in twenty-nine jurisdictions (twenty-seven states, plus the District of Columbia, and the U.S. Department of Justice).

   Part VII discusses the reasons for prohibiting lawyer discipline agencies from making the "institutional choice" to defer to courts in cases involving litigation misconduct. This is followed by my recommendations for disciplinary agencies' review and investigation of litigation misconduct complaints, as well as suggestions for future research. I conclude with the hope that lawyer discipline agencies will maintain their independence from courts and pursue cases of litigation misconduct to retain public trust and confidence in the justice system.

2. LITERATURE REVIEW

   The issues raised in this article are linked to the role of the lawyer as a zealous advocate for his or her client. The Preamble to the Model Rules of Professional Conduct ("MRPC") states: "As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system." (4) The role of advocate, however, is often inconsistent with the purported truth-finding function of courts. As Judge Marvin E. Frankel noted in his classic article critical of the adversary system:

   The advocate in the trial courtroom is not engaged much more than half the time--and then only coincidentally--in the search for truth. The advocate's primary loyalty is to his client, not to truth as such.... The business of the advocate, simply stated, is to win if possible without violating the law.... His is not the search for truth as such.... [T]he truth and victory are mutually incompatible for some considerable percentage of the attorneys trying cases at any given time. (5) But "[t]he duty to represent a client zealously and vigorously has its limits." (6) The limits, of course, are the applicable state ethics rules that are generally based on the MRPC. We know there are limits to zealous advocacy, but do lawyers face disciplinary actions for their litigation misconduct? In Jerome Carlin's 1966 seminal study of lawyer ethics, he notes: "The most frequent charges against lawyers involve wrongdoing against a client, usually misappropriation of client funds. Much less frequent are accusations of offenses against the administration of justice, mainly submission of false or misleading testimony in a court or administrative agency." (7) The Restatement of Law Governing Lawyers acknowledges that "[m]ost bar disciplinary agencies rely on the courts in which litigation occurs to deal with abuse. Tribunals usually sanction only extreme abuse. Administration and interpretation of prohibitions against frivolous litigation should be tempered by concern to avoid overenforcement." (8) Professor Deborah Rhode concurs with this observation:

   Lawyers and judges rarely report professional abuses, and little effort has focused on counteracting the obvious economic and psychological barriers to reporting. Many attorneys do not feel sufficiently blameless to cast the first stone unless they are sure of a fellow practitioner's serious misconduct.... As a consequence, most ethical violations never reach regulatory agencies.... In the unusual cases where judges or lawyers report abuses to bar agencies, these agencies will often refer the case back to the courts for final resolution, leaving the injured party stranded in between. (9) Commentators have noted the leniency of lawyer disciplinary agencies in responding to allegations of litigation misconduct in the form of false statements to the court. (10) Professor Peter Joy conducted a relevant study of the relationship between Rule 11 violations and professional discipline for the same misconduct. (11) Rule 11 of the Federal Rules of Civil Procedure authorizes discretionary sanctions on lawyers or parties who engage is various forms of litigation misconduct. It provides that, by signing any paper submitted to the court, "or later advocating it," an attorney or "unrepresented party":

   certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (12) (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

   (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

   (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

   (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information. (13)

   Rule 11 misconduct encompasses the making of, inter alia, false statements of law or fact, the obstruction of access to evidence, or equally serious professional misconduct. Such acts, while not given as specific examples under the rule's scope, no doubt fall within the bounds of the Rule 11 when done for an "improper purpose," such as making a claim or defense that is "unwarranted" by existing law or evidence, or false denials of...