Protecting the Profession and the Public: a Primer on Reporting Misconduct
| Publication year | 2023 |
| Pages | 30 |
By Barbara M. Seymour.
Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.
Preamble: A Lawyer's Responsibilities South Carolina Rules of Professional Conduct Rule 407, SCACR
These words from the Preamble are a reminder to Bar members that public confidence in the legal profession and the judicial system is dependent on adherence to reporting misconduct.
The duty to self-report
There is a common misconception among lawyers that they are required to self-report any incident of professional misconduct. To the contrary, there are only two circumstances in which a lawyer is required to self-report to disciplinary authorities: (1) when arrested for, or charged with, a serious crime and (2) when disciplined in another jurisdiction.
Rule 8.3, RPC, requires a lawyer to report in writing to the Office of Disciplinary Counsel (ODC) within 15 days of being arrested or charged with a serious crime. The definition of "serious crime"?[1]includes any felony. A lesser crime is also reportable if it "reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects."? A lawyer's duty to self-report also includes "any crime a necessary element of which ... involves interference with the administration of justice, false swearing, misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft, willful failure to file income tax returns, or an attempt, conspiracy or solicitation of another to commit a serious crime."? A lawyer unsure of whether an arrest or charge falls under the "serious crime"? definition should consult with both a criminal defense attorney and an ethics attorney. Consequences for failing to report when required can be severe. On the other hand, reporting when not required can create unnecessary expense and stress. Assistance of counsel is also helpful in determining how much to report. Contrary to what we have seen in media reports of late, even lawyers are innocent until proven guilty. A lawyer charged with a serious crime, while compelled to report the charge, is still entitled to Fifth Amendment protections. A letter of self-report for an arrest should be drafted with this in mind.
A lawyer is also required to promptly inform ODC upon being disciplined, when transferred to incapacity inactive status, or agreeing to resign in lieu of discipline in another jurisdiction.[2] In most cases, the S.C. Supreme Court will impose reciprocal discipline, treating the findings of the other jurisdiction as conclusive evidence of professional misconduct. However, Rule 29, RLDE, does provide that, once the Supreme Court is advised of disciplinary action in another jurisdiction, the lawyer will have the opportunity to present evidence that the imposition of the identical discipline in South Carolina would
be unwarranted. Such a claim is limited to arguments of lack of due process in the other jurisdiction, lack of proof of misconduct in the other jurisdiction, grave injustice, or substantially different precedent in South Carolina. The reciprocal discipline process moves rather quickly and strict adherence to deadlines is essential.
Voluntary self-report
As attorneys, we generally believe in the system of self-regulation. Our instinct is that we are ethical professionals and when we make a mistake, we should report it. Sometimes it is a good idea to voluntarily self-report misconduct, sometimes it is not. A lawyer facing this difficult decision should carefully consider a number of factors, including the benefit of self-reporting as mitigation, the risk of exposure to sanction, the chance someone else will report, the cost of defense and increased insurance premiums, and the mental stress of not reporting. While it might be instinctual to call the disciplinary counsel for advice, such a call could in and of itself be a self-report. In making a decision regarding whether and what to report, the wise lawyer will consult with a...
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