When and How to Report Ethics Violations
The legal profession is somewhat unique in that it permits self-policing. An attorney has an obligation to report misconduct; however, a threat to report misconduct may itself run afoul of the ethical rules. At issue are at least two competing rules of professional conduct. We all want to make sure attorneys, as a group, are fighting cleanly, but these competing rules present a dilemma. How to know when, if, and how to report?
On one hand, Model Rule of Professional Conduct 8.3 imposes upon a lawyer with knowledge of conduct that seriously calls into question another lawyer’s “honesty, trustworthiness, or fitness” to report the violation. Easy, right? Attorneys are required to report their colleagues, adversaries, friends and others to the ethics board.
However, on the other hand, at least three rules prohibit unfounded disciplinary complaints. Rule 3.1 prohibits an attorney from bringing a frivolous proceeding, Rule 4.1 requires an attorney to be truthful in dealing with others on a client’s behalf, Rule 4.4 bars an attorney, in representing a client, from using “means that have no substantial purpose other than to embarrass, delay, or burden a third person,” and Rule 8.4 prohibits an attorney from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation” and in “conduct that is prejudicial to the administration of justice.” Each of these rules may be interpreted to prohibit unsupported allegations of attorney misconduct. Further, the ethical codes in many jurisdictions prohibit an attorney from threatening to report an ethical violation and/or criminal prosecution solely to gain advantage in a civil matter.
First, not all suspicions of ethical violations must be reported. Indeed, if this were the case, the failure to report any violation would itself be a professional offense. The reportable/non-reportable distinction is customarily drawn in terms of offenses involving “moral turpitude.” With that in mind, reportable ethics offenses are those that indicate a lack of those attributes relevant to practicing law, such as violence, dishonesty, fraud, breach of trust, a pattern of repeated offenses, or any other serious interference with the administration of justice. By contrast, those offenses that do not have any specific connection to fitness to practice law, such as adultery, are generally not the appropriate topics of ethics violation reports.
Further, jurisdictions have struggled with what constitutes a “threat” to report an ethical or criminal violation. Some ethics opinions interpret even a slight allusion to criminal or ethical penalties or even the use of such terms to describe the opposing party’s conduct as an impermissible veiled threat. Others have concluded that such a determination must be made on a case-by-case basis; still others only prohibit “threats” when they are made solely to gain advantage in a civil matter.
To stay on the safe side, no matter where you practice, remember the following:
- Scrutinize the sin. Is this offense something that, if true, makes this attorney unfit to practice law? If not, then do not report.
- Evaluate the evidence; assess your aims. Make sure your suspicion of wrongdoing has a legitimate basis; and ask yourself if this is a legitimate offense that should be reported. You know when the tactic of threatening to report, even if it is vague or ambiguous, is really a ploy to compel the opposing side to comply with your wishes.
- Check yourself before you wreck yourself. An adversary’s tactics and/or attitude can sometimes be frustrating and/or downright rude. Don’t let personal animosity lead to threats or unfounded complaints. Take a breath before you accuse.