A current look at Model Rule 8.3: How is it used and what are courts doing about it?

Georgetown Journal of Legal Ethics, The, Summer 2003 by Ott, Nikki A, Newton, Heather F

INTRODUCTION

Rule 8.3 of the Model Rules of Professional Conduct ("Model Rules") embodies one of the most underenforced, and possibly unenforceable, mandates in legal ethics. The rule's requirement is simple on its face: a lawyer who knows that another member of the bar, either a practicing attorney or a judge, has engaged in unethical conduct has a mandatory duty to report that attorney to an appropriate authority.1 Comment 1 of Model Rule 8.3 states that the rule is necessary given the legal profession's self-regulating nature.2 The comment emphasizes that the reporting requirement is especially important because victims may be unlikely to discover the offense and initiate a disciplinary proceeding against the offending attorney.3 Model Rule 8.3 is also concerned with the protection of the public at large from unscrupulous attorneys that may prey on future unwitting victims.4

The iteration of a mandatory duty to report attorneys' ethical violations in Model Rule 8.3 was initially seen as an improvement on the previous mandate contained in the Model Code of Professional Responsibility ("Model Code"), Disciplinary Rule 1-103(A).5 This improvement, unfortunately, does not seem to have greatly increased the likelihood of an attorney reporting another for violations of a jurisdiction's rules of professional conduct.6

Enforcement of Model Rule 8.3 is difficult, if not impossible. Attorneys have difficulty in determining whether their knowledge of questionable conduct falls under the mandates of the rule.7 Attorneys face numerous pressures arising out of the requirements that they report other firm members, friends, and colleagues, as well as opposing or other unconnected counsel for ethics violations.8 They also may be confused as to the appropriate authority to which to report.9 Enforcing Model Rule 8.3 is also problematic because doing so depends upon attorneys bringing the misconduct of their peers to the attention of a court,10 or reporting a coconspirator with whom they are involved.11 For a myriad of reasons, current scholarship agrees that Model Rule 8.3 is underenforced and does not act as a deterrent to attorney misconduct.12

This Note will address whether recent developments have occurred in the rate of attorneys reporting the misconduct of other attorneys, and how courts treat instances where an attorney has either reported or failed to report another attorney's unethical conduct. Part I will evaluate attorneys' reluctance to come forward with information regarding misconduct of other attorneys, particularly attorneys they know personally or with whom they work. Section LA will examine the reasons why this reluctance is present. Section LB concerns the difficulties in obtaining information sufficient to give an accurate picture on the current state of reporting as a result of the failure of state bar associations to keep accurate or detailed records of disciplinary proceedings, or the failure to make records of disciplinary proceedings public.

Part II addresses the issue of court treatment of Model Rule 8.3's requirement. Court treatment of reporting or failure to report the misconduct of other attorneys has changed over the years. Section II.A shows that although instances of attorney reporting remain relatively rare, courts in many jurisdictions are increasing their support of reporting as a mandatory duty imposed on all attorneys and lending support to attorneys who do overcome their reluctance (or fear) and report their colleagues and other members of the profession. Section II.B will examine the negative consequences resulting from enforcement of Model Rule 8.3. Attorneys face a Hobson's choice13 because, under current jurisprudence, an attorney must decide whether to keep quiet about ethical violations within the firm or to report those violations and risk retaliatory discharge or expulsion with no recourse against the firm. As a result, Model Rule 8.3 continues to be both disregarded and underenforced in the courts.

I. ATTORNEYS' RELUCTANCE TO REPORT A COLLEAGUE

A. AN ANALYSIS OF THE MANY REASONS WHY ATTORNEYS ARE HESITANT WHISTLEBLOWERS

Although in theory a lawyer who knows that another lawyer has committed a violation of the Model Rules of Professional Conduct is required to inform the appropriate professional authority, in reality lawyers rarely turn in one another.14 Many reasons exist for lawyers' reluctance to report "one of their own." One reason concerns the practical implications of a rule that is rife with vague standards for reporting and enforcement.15 Model Rule 8.3 contains three sections, all of which raise questions about how attorneys ought to interpret the rule in seeking to comply with its requirements. Model Rule 8.3(a) obligates lawyers to report the professional misconduct of another lawyer, and Rule 8.3(b) indicates when a lawyer must report the misconduct of a judge. Model Rule 8.3(c) prohibits disclosure of information protected by the attorney-client privilege outlined in Model Rule 1.6,16 as well any information gained by a lawyer while participating in a lawyer assistance program.17 Yet beyond these broad guidelines, the Rule does not offer clear-cut answers for attorneys struggling to determine when or if they are required to report information about another attorney's conduct which they have learned.18