Speaking of Ethics: When to File a Disciplinary Complaint
From Washington Lawyer, October 2005
By Lisa Y. Weatherspoon
The practice of law is riddled with many challenges. It becomes even more complicated when challenged by the unethical conduct of colleagues, superiors, or opposing counsel.
Most lawyers, at some time or another, face the difficult and uncomfortable task of deciding whether to report another lawyer’s misconduct. This month’s column considers this dilemma, focusing specifically on Legal Ethics Opinions 220 (1991) (threats to file disciplinary charges), 246 (1994) (a lawyer’s obligation to report another lawyer’s misconduct), and 270 (1997) (whether a subordinate lawyer must alert the client and report the superior’s misconduct after the lawyer has left the practice).
It is not uncommon for lawyers to find themselves faced with whether to report another lawyer’s violation of the ethical rules. Rule 8.3(a) of the D.C. Rules of Professional Conduct provides that a lawyer who knows of another lawyer’s misconduct must report it if the conduct violates the rules and raises “a substantial question as to that lawyer’s honesty, trustworthiness, or fitness. . . .” Rule 8.4(g) states that it is professional misconduct to seek or threaten to seek criminal or disciplinary charges solely to gain an advantage in a civil matter.
Legal Ethics Opinion 246 addresses the four prerequisites to lawyers’ reporting obligations pursuant to Rule 8.3. The first is knowledge. A lawyer is required to report misconduct only when there is a clear belief that another lawyer has committed a violation of the Rules of Professional Conduct or other misconduct.
The second prerequisite requires that disclosure not violate the client’s confidences or secrets. Rule 8.3(c) states, “This Rule does not require disclosure of information otherwise protected by Rule 1.6.” Opinion 246 further clarifies:
If information is protected by Rule 1.6, it is specifically exempted from the mandatory reporting requirement of Rule 8.3(a). . . . We believe the exemption in Rule 8.3(c), read together with Rule 1.6 itself, means that a lawyer may not report misconduct where this would entail a disclosure of information protected by Rule 1.6. [Emphasis in original.]
Further, reporting may be prohibited under Rule 1.3(b)(2) if it would “prejudice or damage” the client even if the client consents to the disclosure.
The third prerequisite is that the lawyer’s actions rise to the level of an ethical violation. Inappropriate conduct may be unprofessional or negligent, but may not constitute a disciplinary violation. A would-be reporter is required to report only acts that violate the Rules of Professional Conduct.
The final prerequisite is that the conduct raises a substantial question as to the lawyer’s honesty, trustworthiness, or fitness to practice law. This qualification narrows the field of what violations must be reported to only the most serious ones. The comments to Rule 8.3 explain that lawyers should exercise judgment when reporting misconduct, that they are not required to report every violation. The purpose of the rule is to protect the integrity of the profession; therefore clear and substantial violations should be addressed.
Opinion 270 provides a good example of a situation in which a lawyer has a duty to report misconduct. The inquirer of this opinion was hired through a temporary agency to work for a sole practitioner. The employing lawyer advised the inquirer that the client had repeatedly insisted that he write aggressive letters to a third party, despite the lawyer’s advice against such action. In order to satisfy the client, the employing lawyer explained that he would draft the requested letters and send copies to the client without ever sending them to the addressee.
The Legal Ethics Committee determined that all four of the requirements addressed in Opinion 246 were satisfied by the facts presented in this scenario: the inquirer had actual knowledge of the wrongdoing; the disclosure would not violate the client’s confidences or secrets; the employing lawyer had violated the Rules of Professional Conduct; and ongoing and deliberate lying constituted conduct that raised a substantial question of the lawyer’s honesty, trustworthiness, and fitness to practice law.
Sometimes misconduct occurs while dealing with opposing counsel. In these circumstances, lawyers may be reluctant to report the wrongdoing of opposing counsel for fear of violating Rule 8.4(g), which provides that it is misconduct to threaten to seek criminal or disciplinary charges in order to gain an advantage in a civil matter.
Opinion 220 makes it clear that this need not be the case when such reports are made in good faith: “If a complaint or report is filed with Bar Counsel in a good faith effort to comply with the provisions of Rule 8.3 it cannot be said to be filed solely for the purpose of gaining advantage in a civil matter.”
Lawyers are well advised to file disciplinary complaints only when circumstances satisfy the tests set forth in Opinion 246. Frivolous complaints may well violate Rule 3.1 (meritorious claims and contentions). Further, threats to file disciplinary complaints are unlikely to be considered as a good-faith effort to comply with the rule, as the obligation is to report, rather than merely threaten to report, misconduct.
As lawyers, we are members of a self-regulating profession. In keeping with comment 1 to Rule 8.4, the integrity of our profession is best protected when lawyers are held accountable for “offenses that indicate lack of those characteristics relevant to law practice.”
Legal ethics counsel Lisa Y. Weatherspoon and Ernest T. Lindberg are available for telephone inquiries at 202-737-4700, ext. 231 or 232, or by e-mail at email@example.com.