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Bell/Whelan: 3 things to know about reporting ethics violations

November 4, 2015

3ThingsBellWhelan2015.jpgIf you’re like us, you’re a lawyer who enjoys giving advice to others. As attorneys who represent other attorneys in disciplinary matters, we often receive requests to give ethics advice to lawyers. As luck would have it, we like lawyers and generally enjoy giving advice to lawyers when we can.

One request that we don’t particularly like, however, is when we are asked to advise an attorney as to whether he or she “should turn in” another attorney to the Disciplinary Commission. Responding to these requests can be problematic for many reasons. Luckily, the duty to report (and most of what you need to know about it) is spelled out in the Indiana Rules of Professional Conduct. Here are three things you should know about an attorney’s duty to report an ethics violation by another lawyer.

1. Not all violations of the Rules of Professional Conduct need to be reported

Rule 8.3(a) of the Indiana Rules of Professional Conduct states that “[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.”

In examining Rule 8.3, it is clear that the lawyer must “know” of the other attorney’s violation. Rule 1.0(f) states that “‘knows’ denotes actual knowledge of the fact in question.” Although it goes on to say that a “person’s knowledge may be inferred from circumstances,” it is clear that an attorney is not required to report anything unless they have “actual knowledge” of the violation.

Furthermore, the word “substantial” is placed in the rule for a reason. Our rules did not intend for every missed phone call to be reported as a lack of diligence or a failure to communicate. In fact, as outlined in the rule, if the alleged misconduct of the other attorney does not cause you to question the lawyer’s honesty, trustworthiness or fitness as a lawyer, you can report the violation, but you are not required to do so.

Even if the attorney has actual knowledge of another’s misconduct that is covered by Rule 8.3, confidentiality trumps the mandatory reporting provision. Specifically, Rule 8.3(c) of the Indiana Rules of Professional Conduct states that the rule “does not require reporting of a violation or disclosure of information if such action would involve disclosure of information that is otherwise protected by Rule 1.6.”

Please keep in mind that Rule 1.6 is far broader than the attorney-client privilege. Rule 1.6 states that a lawyer “shall not reveal information relating to the representation of a client unless the client gives informed consent,” or there is another exception. Therefore, if you learn of an attorney’s misconduct through the representation of a client and the client will not consent to your report to the Disciplinary Commission and no other exception to Rule 1.6 applies, you are required to forever hold your peace.

2. You are required to self-report convictions for crimes

Rule 8.3 is written in terms of “another lawyer.” We define “another lawyer” as “any lawyer but me.” That leads to the question of whether there is a time when an attorney is required to tell on “me?”

In Indiana, an attorney is required to self-report a criminal conviction. According to the Indiana Admission & Discipline Rule 23, § 11.1(a)(2), “[a]n attorney licensed to practice law in the state of Indiana who is found guilty of a crime in any state or of a crime under the laws of the United States shall, within 10 days after such finding of guilty, transmit a certified copy of the finding of guilt to the Executive Secretary of the Indiana Supreme Court Disciplinary Commission.” Judges who are aware of an attorney’s criminal conviction have a similar duty. See Admis. Disc. R. 23, § 11.1(a)(1).

3. Do not threaten to report an ethics violation to obtain an advantage in litigation

If you know that another attorney has committed an act of misconduct that would trigger a mandatory report, then follow the rule and report the attorney. Do not seek to report the attorney for your own personal gain – it could result in disciplinary sanctions.

For example, in the Matter of Lehman, 861 N.E.2d 708, 709 (Ind. 2007), the respondent filed an emergency request for a continuance of trial. The respondent “called opposing counsel and told him that his clients wanted to report opposing counsel for unethical conduct, but if opposing counsel agreed to the continuance, respondent thought he could dissuade his clients.” The Indiana Supreme Court found that the respondent violated Rule 8.4(d) of the Indiana Rules of Professional Conduct, which prohibits conduct “prejudicial to the administration of justice, by communicating to opposing counsel a willingness to attempt to dissuade his clients from filing a complaint against opposing counsel as a quid pro quo for opposing counsel’s agreement to a continuance of the trial.”

Lehman and other cases demonstrate that a threat of a report to the Disciplinary Commission should not be used as a weapon in litigation. The disciplinary process serves an important purpose in regulating the legal profession. Trying to use the disciplinary process for self-serving purposes, such as to get an advantage in a case, is prohibited.•

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James Bell and Jessica Whelan are attorneys with Bingham Greenebaum Doll LLP who assist lawyers and judges with professional liability and legal ethics issues. Bell is a regular speaker on criminal defense and ethics topics. He can be reached at jbell@bgdlegal.com and Whelan can be reached at jwhelan@bgdlegal.com. The opinions expressed are those of the authors.

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