Vol. 73 No. 9. Thinking Ethics: Duty to Report Attorney Misconduct.

• Author: By Stanton A. Hazlett

Kansas Bar Journal

Ethics Columns.

2004.

Vol. 73 No. 9.

Thinking Ethics: Duty to Report Attorney Misconduct

Vol. 73 No. 9 October 2004Thinking Ethics: Duty to Report Attorney MisconductBy Stanton A. HazlettDuring continuing legal education seminars I often encourage lawyers to contact the Disciplinary Administrator's Office regarding ethical dilemmas they encounter. I am presented with many interesting "hypotheticals." Although no statistics are kept regarding the subject matter of the questions asked during phone calls, I suspect that the issue of whether an attorney has an obligation to report the misconduct of another lawyer generates the most calls. Clearly, Kansas' lawyers are aware of the obligation to report but find it a distasteful thing to do.

The vast majority of jurisdictions place a duty on the bar to report lawyer misconduct. In Kansas, that obligation is found in two different rules. Supreme Court Rule 207(c) and Kansas Rules of Professional Conduct (KRPC) 8.3 place an obligation on Kansas' lawyers to report the misconduct of another lawyer. In addition to requiring lawyers to report misconduct of other lawyers, Supreme Court Rule 207(d) requires Kansas judges to report to the Disciplinary Administrator any misconduct of an attorney who, in the judge's opinion, constitutes a violation of the KRPC.

Supreme Court Rule 207 and KRPC 8.3 require Kansas lawyers to report misconduct of another lawyer if the lawyer has "knowledge of any action, inaction, or conduct which in his or her opinion constitutes misconduct of an attorney under these rules ... " Until 1999, KRPC 8.3 and Supreme Court Rule 207 had differing language. Although both rules required Kansas lawyers to report misconduct of other lawyers, KRPC 8.3 only required a Kansas lawyer to report misconduct if the reporting lawyer concluded that the misconduct raised a "substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." Now, both rules require that lawyers report any misconduct and not just conduct that a lawyer has concluded substantially reflects on a lawyer's fitness to practice law. For example, prior to 1999 a lawyer could arguably avoid reporting minor misconduct such as diligence and communication under the theory that the misconduct did not substantially reflect on the honesty...