Should it be an ethical obligation to report other lawyers?
The legal profession is largely self-regulated, with state high courts serving as the ultimate guardians of lawyer behavior. Essential to maintaining that self-regulation is the idea that the profession will also self-police to help ensure integrity. That is why a professional rule of conduct exists that requires lawyers to report serious misconduct committed by other practitioners.
ABA Model Rule 8.3(a) provides: “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.”
Lawyers are often in the best position to know about the misconduct of other lawyers. The rule requires that the reporting lawyer have actual knowledge of the misconduct and that such misconduct raise “a substantial question” as to the lawyer’s honesty or fitness. Comment 1 to Rule 8.3 explains the necessity of the rule for self-regulation. Comment 3 further explains that the rule applies to serious ethical breaches and “limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent.” It further provides that lawyers must use “a measure of judgment” in distinguishing between de minimis violations and breaches that must be reported.
The need for such a rule was revealed by an ABA committee in 1970. “An ABA committee headed by retired U.S. Supreme Court Justice Tom Clark found that lawyer disciplinary systems were scandalously deficient,” explains Vincent R. Johnson, the South Texas Distinguished Professor of Law at St. Mary’s University School of Law. “That damning assessment and the involvement of so many prominent lawyers in ‘dirty tricks,’ including the Watergate break-in, catalyzed more than 50 years of ethics reform. Part of the cleanup was to require lawyers to report misconduct to disciplinary authorities rather than to sweep it under the rug.”
Most states have adopted the language of ABA Model Rule 8.3, which triggers a mandatory reporting obligation. But not all states have the requirement.
The holdouts are described as “permissive reporting states.” For example, Georgia’s 8.3 provides that lawyers who know of another lawyer’s misconduct that raises a substantial question as to their honestly and fitness “should inform the appropriate professional authority.” Washington’s Rules of Professional Conduct similarly provides that lawyers “should inform the appropriate authority.” California simply hasn’t adopted ABA Model Rule 8.3 in any form.
“Mandatory reporting is the better rule,” says Keith Swisher, professor of legal ethics at the University of Arizona James E. Rogers College of Law. “The rule does not require de minimis reporting; it is triggered only when the lawyer knows of substantial misconduct. If the misconduct is significant, it is difficult to think of a reason not to require reporting, especially considering the damage the misconduct may inflict on the public.”
“Parts of Model Rule 8.3 are really well-designed,” Johnson adds. “The reporting obligation is triggered only by actual knowledge of serious misconduct and makes appropriate exceptions for information learned by a lawyer or judge participating in an approved lawyers’ assistance program.”
Legal experts point to a significant loophole in Rule 8.3: the paramount duty of client confidentiality found in Rule 1.6. Model Rule 8.3(c) provides: “This rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.”
Johnson notes this discrepancy is problematic. “This means that in a huge range of cases, there is no duty to report because what lawyers know about misconduct is often related to their representation of clients and therefore confidential.”
Swisher sees a way the rule could be improved. Lawyers can’t report any information falling under Rule 1.6, which covers all information relating to the representation of a client. But “lawyers almost always learn about the misconduct in connection with a representation, and thus they cannot report the misconduct unless the client consents,” he says. “States should require that lawyers ask their clients to consent to the reporting. The clients could decline, but at the moment, lawyers do not even have to ask for consent to report.”
Comment 2 to Model Rule 8.3 does encourage lawyers to try to obtain client consent for disclosure of such wrongdoing, as long as such disclosure “would not substantially prejudice the client’s interests.” However, the rule does not make this mandatory.
How well the system works is an open question. Swisher says bar regulators could set an example by “look[ing] a bit more closely at lawyers who knew about misconduct yet did not report, at least in cases in which an earlier report may have mitigated the damage wrought by the misconduct.”
For his part, Johnson thinks the system is effective overall since there are others able to report lawyer misconduct. “Despite the limited reach of the mandatory duty to report, I tend to think that modern disciplinary systems work well,” Johnson says. “Aggrieved clients and third persons, not to mention responsible lawyers and judges, do not hesitate to bring serious matters to the attention of grievance committees.” n
This story was originally published in the February-March 2023 issue of the ABA Journal under the headline: “Reporting Other Lawyers: Should it be an ethical obligation?”
David L. Hudson Jr. teaches at Belmont University College of Law. He is the author, co-author or co-editor of more than 40 books. For much of his career, he has focused on the First Amendment and professional responsibility.