Reputation and the Rules: An Argument for a Balancing Approach under Rule 8.3 of the Model Rules of Professional Conduct

• Author: Ryan Williams
• Pages: 931-954

I would like to thank Professor Greg Smith for his aid in crafting this Comment. Many thanks and much love as well to my incomparable family and friends for their unwavering encouragement and support throughout my writing process, and always.

Page 931

I Introduction

When you were a child, you tattled on someone: an older sibling, your rowdy cousin, your best friend, whomever. You tattled on someone, and it did not go over well. It strained your relationships. The other kids talked; they called you a tattletale. Maybe you were ostracized for a while. No one wanted to let you in on their plans until they knew for sure where your loyalties lay. You were a liability.

The kids reacted in ways that were understandable enough, but adults often responded absolutely inscrutably. At times, offenders met with swift justice when the authority figure to whom you had reported intervened. Perhaps you were even thanked for helping to enforce the rules. Other times though, you were met with a rebuke. "You shouldn't tattle on your friends," your teacher might say, or, when your sister was playing with her toys instead of practicing her penmanship, your mother might respond, annoyed, "I don't have time for that right now."

Was there really any way to know when you were supposed to tattle? Wasn't the enforcement of justice completely contingent on the mood of the authority figure to whom you reported? Maybe these uncertainties were what led you, eventually, to eschew tattling altogether. Or maybe you renounced the practice because the people on whom you most frequently had a chance to tattle were your friends, and at some point, your loyalty to them and your fear of their disapprobation began to greatly outweigh any interest you had in the enforcement of the rules. This much is certain: a long time before you sat for the bar, you internalized the lesson that tattling can get you into trouble.

This lesson, perhaps, is the reason why the American Bar Association has found it necessary to create an affirmative duty to report another lawyer's misconduct in at least some circumstances. Page 932 Under Model Rule 8.3,¹ an attorney is guilty of an ethical violation if he fails to report another attorney's professional misconduct, when that misconduct raises a "substantial question" as to the other attorney's fitness to practice law.² But old habits die hard. It will come as no surprise that lawyers prefer not to report the misconduct of their peers.³ This hesitancy may be expressed in terms of "minding one's own business." It may be defended as "deference to a fellow member of the professional community." In its most self-interested (and probably most accurate) formulation, the hesitancy stems from a fear of damage to one's personal and professional reputation and relationships.

Though such personal concerns admittedly address only half of the issue, the argument I put forth in this Comment is that they are not wholly inappropriate to a discussion of one attorney's duty to report another's misconduct. While the legal profession has an unquestioned interest in enforcing its disciplinary rules, it also has competing interests in maintaining the professional reputations of its members and in promoting loyalty and fraternity between fellow practitioners.⁴ A rule requiring the reporting of professional misconduct clearly serves the first interest but interferes substantially with the latter two. Striking an appropriate balance among these interests is the purpose of this Comment.

Part II of this Comment provides a brief history of the development of Model Rule 8.3, with special attention to its differences from its predecessor rule, Disciplinary Rule 1-103. It also considers state-by-state variations on Rule 8.3; Louisiana in particular requires reporting misconduct in a greater number of cases than most sister states. Part III considers the wisdom of any Page 933 rule requiring attorneys to report on one another. It briefly treats the question of such a rule's enforceability and then turns to the crux of the investigation: the sociology of the modern bar and its effect on a lawyer's inclination to report a fellow lawyer's misconduct. I argue that fear of damage to his working relationships and reputation often results in a lawyer's unwillingness to report another lawyer's misconduct. Since maintaining good relationships between attorneys is a legitimate and acknowledged interest of the professional bar, I conclude that a lawyer, by considering the effect of reporting on his professional reputation before electing to report, is in actuality supporting the interests of the bar. Thus, I advocate a balancing test (as opposed to the prevailing per se rule) to determine whether disciplinary sanctions are appropriate under Rule 8.3. A court should balance the gravity of the offense that went unreported against the damage that would have been done to the attorney's reputation and working relationships in the event that he had reported it. Finally, Part IV offers a few concluding observations regarding an attorney's duty to report professional misconduct.

II Background

A History Of The Model Rule

National standards for the ethical conduct of American lawyers have been on the scene since early in the twentieth century.⁵ The American Bar Association was founded in 1878, and by 1900, it had emerged as the preeminent bar association in the United States.⁶ In 1908, it adopted the Canons of Professional Ethics.⁷Canon 29 was the earliest direct forerunner of modern day Rule 8.3.⁸ It provided that "[l]awyers should expose without fear or Page 934 favor before the proper tribunals corrupt or dishonest conduct in the profession . . . ."⁹ That Canon 29 used the word "should" instead of "shall" indicates that the rule was more a normative statement than a standard to which adherence could be compelled.¹⁰ In fact, the Canons generally were enacted without enforcement procedures; as a whole, they were goals for legal professional behavior, but there seems to have been no notion of disciplining attorneys who failed to comply with them.¹¹

In 1969, the ABA's adoption of the Code of Professional Responsibility changed all this.¹² Under the Code, reporting professional misconduct became compulsory, and failure to report was itself made an ethical violation warranting disciplinary action.¹³ Disciplinary Rule 1-103 requires that "[a] lawyer possessing unprivileged knowledge of a violation of DR 1-102 shall report such knowledge to a[n] . . . authority empowered to investigate or act upon such violation."¹⁴

The ABA found that Disciplinary Rule 1-103 was effectively unenforceable,¹⁵ and so in 1983, when it replaced the Code with the Model Rules of Professional Conduct, it significantly modified the reporting requirement. Rule 8.3 provides, in pertinent part: "[a] lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority."¹⁶

By tying the duty to report to the seriousness of the offense-via the "substantial question" language-Rule 8.3 purportedly makes the reporting requirement more enforceable. Page 935

B State-By-State Variations On Model Rule 8.3

The Model Rules do not have any binding effect based solely on their adoption by the ABA. Before a state bar association may enforce the Model Rules, it must adopt them. The bar associations have sometimes adopted the text of the Model Rules verbatim, but in many cases, they have made changes. Such deviations may be merely cosmetic, or may effect substantive changes to the Rule.

The states have adopted versions of Model Rule 8.3 that vary widely. Some have created a rule that is effectively a weak suggestion that professional misconduct should be reported. Others have created an absolute command to report misconduct, untied (or weakly tied) to the seriousness of the underlying offense. In the following subsections, I briefly survey the most extreme variations on Model Rule 8.3.¹⁷ In doing so, it is the author's purpose to demonstrate that although the ABA has been able to settle on a standard governing a lawyer's duty to report misconduct, its standard has remained a matter of contention among those empowered to give effect to the duty. Additionally, the types of alterations made by the states help to lay a foundation for the suggestions that I offer for revision of Rule 8.3.¹⁸

1. The Georgia Rule

Georgia has adopted a variation on Model Rule 8.3 that harkens back to Canon 29 of the ABA's Canons of Professional Ethics. The Georgia Rule provides:

A lawyer having knowledge that another lawyer has committed a violation of the Georgia Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, should inform the appropriate professional Page 936 authority. . . . There is no disciplinary penalty for a violation of this Rule.¹⁹

As in Canon 29, use of the permissive "should" implies that the Georgia Rule is merely hortatory; it encourages reporting misbehavior without requiring it. Georgia Rule 8.3 goes a step further than Canon 29, in fact, by explicitly disclaiming any threat of disciplinary proceedings for failure to comply.

Jurisprudence on the Georgia Rule might reveal the reason for these deviations from the Model Rules. Unfortunately, this author's search for jurisprudence on Georgia's Rule 8.3 was fruitless...