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No One Likes a Tattle Tale: Reporting Requirements Under Model Rule 8.3

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No One Likes a Tattle Tale: Reporting Requirements Under Model Rule 8.3

ABA Model Rule of Professional Conduct 8.3 and its many state counterparts require lawyers to inform the appropriate professional authority once a lawyer "knows" another lawyer has engaged in certain professional misconduct. The duty or opportunity to "know" of such violations can vary depending on the relationship between the lawyers in question. This program will consider the provisions of Model Rule 8.3 and an attorney’s obligations to report another attorney or judge to the appropriate disciplinary authority. We will discuss when specific reporting is triggered, the consequences of acting or failing to act, and best practices for taking effective action.

Transcript

Everyone. I'm going to be with you for the next hour speaking on this topic. My contact information is on the slide in front of you. Should you have any additional questions or want to reach out to me, you know, so where are we going to be headed for the next hour? Um, ABA ABA model Rules of Professional Conduct 8.3 and it's many state counterparts require lawyers to inform the appropriate professional authority. Once a lawyer knows and we're going to talk about what that means once a lawyer knows another lawyer has engaged in certain professional misconduct. Knowledge of such violations can really vary depending on the relationship between the lawyers and question. We're going to look at and consider the provisions of model rule 8.3, as well as an attorney's obligations to report another attorney or judge to the appropriate regulatory authority. We're also going to do a deep dive into the rules, language and terms. Discuss when specific reporting is triggered, the consequences of acting or guess failing to act in this case, and best practices for taking effective action. We're also going to explore what information is reported and to whom the duty to self report his, her or their own misconduct or that of an associate, and duties to report and impaired or suspended, disbarred or out of state. Lawyer. Lastly, today we're going to look at some cautionary case tales with regard to 8.3 and the lessons we can learn from each of them. So let's jump right in and look at the model rule. The wall is in front of you. And again, this is the modern rule. And it says 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 meaning mandatory inform the appropriate professional authority? This rule is sometimes known as the rat rule or the snitch rule. Or in Illinois, where I am, it's called the Himmel rule at its very core. Rule 8.3 requires every lawyer to report certain professional misconduct by other lawyers to the appropriate disciplinary authority. Uh, let's be honest. Right. Reporting another's misconduct is always a sensitive and touchy subject. One instinctively doesn't want to be a squealer. I think we all learned in kindergarten that it's not nice to be a tattletale. But sometimes we must tell on someone for the good of the profession. In fact, one of the most important aspects of the lawyer self-regulatory system is this rule the brief language in this model rule that you have on the screen in front of you, I think is deceptively simple, and on its face, the requirements are pretty straightforward. You know, if, you know, another lawyer has violated a rule in a particularly serious way. You have to report them unless it's protected by client confidentiality under 1.6. Something we need to talk about here is that we need to remember we're looking at the model. The ABA model rules of professional Conduct are templates or model provisions that are not binding unless they are adopted by a governing state or federal jurisdiction. It is key that you look at your jurisdiction's version of this rule. Why? Because many states have adopted markedly different language for 8.3. Some examples are on the screen in front of you. Like in Iowa and Kansas, their rule requires reporting of any misconduct, however slight. North Dakota requires its reporting lawyer to file a formal complaint or actually initiate proceedings in their parlance. Washington and Georgia. It's not mandatory at all. It's a should. And California actually just adopted a version of this rule in August of this year. An excellent place to go if you'd like to see all of the state jurisdictions rules in one place, is the link that I have on the screen in front of you. It is the American Bar Association's Center for Professional Regulation Policy Implementation Committee chart on jurisdictional variations of the ABA model rules of Professional Conduct. Wow, that's a mouthful. But what it is is a chart of all the rules and in particular 8.3 here and all the variations around the country. We started with the premise that 8.3 is a relatively straightforward rule. So why is there so much confusion and think we should look at it, you know, take a step back and look at it from the regulatory and lawyer perspective and where some of these problems may lie. Some people say, oh, this rule is used way too often. It's used for two minor violations. And, you know, making these recordings is really a burden on the regulatory or disciplinary agency. Sometimes, you know, this is the case, right? Where an attorney will report anything all the time for any, you know, minor violation. Luckily for the system, disciplinary and regulatory prosecutors are truly skilled in the art of separating the wheat from the chaff. And they know the difference. A further, if a lawyer were obliged to report every single violation of the rules. You know, the failure to report any violation would itself be a professional offense. It would be really, truly overwhelming. You know, this rule does limit the reporting obligation to those offenses that are self-regulating. Profession must vigorously endeavor to prevent. Another idea is that the rule is going to be abused as a litigation tactic against opposing counsel. How does this play out? Well let's look at this. So opposing counsel you know often times use motions to disqualify counsel as a tactic to remove counsel from the opposing party's choice. Some say that with rule 8.3, this is another tool in opposing counsel's arsenal to disrupt that attorney client relationship with the client. You know, suggesting that counsel has violated the rules of professional conduct may create a conflict of interest between the attorney and the client that may not be waivable and force the client to retain new counsel. You know, take this, for example. An attorney could file a complaint with the state bar claiming that opposing counsel has been dishonest in the course of litigation, which would certainly go to the attorney's fitness as an attorney. And just, you know, they would file it just because the filing attorney doesn't like the way the opposing counsel is prosecuting or defending a certain action, while the complaining attorney may, you know, could be subject to discipline for threatening administrative action to gain an advantage in litigation. The attorney against whom the complaint is made, even if frivolous, must still defend him, her or themself against the complaint. Really disrupting this attorney client relationship. And lastly using 8.3 as a discovery tactic. For example, litigation is ongoing and there's a great debate over the production of certain evidence. Count one counsel is objecting to producing, and there's motions back and forth. And rather than fighting it out before the tribunal, the proper venue. Opposing counsel files an 8.3 complaint before the disciplinary agency. And as part of that attorney respondent's response, he she they need to explain the material facts and produce documentation supporting the same to disciplinary counsel. You know, oftentimes this information might be forwarded to the counsel who complained, giving them something that they might ordinarily or might not otherwise be entitled to. Again, this is where disciplinary or regulatory counsel come in, recognize the circumstances and depending on what state you're in, may not forward that information. So as a matter of professional responsibility, we need also to step back a page and talk about who we are and what we do. You know, we attorneys are mandated reporters of other lawyers, and we were mandated reporters long before statutory mandated reporting became a, you know, in quotes thing in the 1970s and the 1980s. It happened first in the medical profession and then in the social and human services industry generally. We need to recognize that position and that reporting obligation, separate and apart from this rule of professional conduct. So a few concepts we need to consider with rule 8.3. We talked about tattletales and self self-reporting or self-regulation, but 8.3 really provides the why. Reporting a member of your own profession, as we said, is usually an unpleasant act, but it's necessary for the protection of the public because co professionals are often the only people who will become aware of the misconduct. The victim, whether that's a client, a third party, third party, another person, another entity is unlikely to discover the offense. Further, an apparently isolated violation may indicate a whole pattern of misconduct that only a disciplinary investigation can uncover. You think of it this way. Suppose you were your you know, you were having surgery and your surgery and your surgeon was operating under the influence. Wouldn't you want the other doctors in the operating room to report that surgeon to the medical board? In fact, there's a study out there that shows 96% of doctors think that physicians should report incompetent or impaired doctors to the authorities, but only 45% of them actually do so. Going back to the burden on regulation. Reporting is not every violation. It's only those that have violated a rule in a particularly egregious or serious way. In other words, the known misconduct raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer. Remember that it does not apply to the counsel representing you. The duty to report professional misconduct does not apply to a lawyer retained to represent that lawyer whose professional misconduct is in question. It also doesn't apply to reporting your own misconduct. Most state jurisdictions have a separate rule for that in relation to reciprocal discipline or to criminal convictions. And lastly, I think in on some occasions judges are loath to report. I mean, think about it. You appear in their courtroom every day. Um, it's awkward. Or the judges in your jurisdiction are elected. How does that or does it have an impact on their campaign? This is certainly not to say that judges don't report they comply with their obligation all the time. And many reports do come from judges who see the conduct in their courtrooms. I think the best way to do a deep dive into what the words of the rule mean is to look at a hypothetical, and in this hypothetical, council is at a motion, hearing or council. I should say council at a motion hearing is unusually discourteous. Interrupting opposing council and talking over the court. The motion is argued not particularly competently and is submitted. Following the hearing, Council experiences what appears to be a medical emergency and medical and bailiff personnel are called. Shortly thereafter, council and the court learn from the court bailiffs that council registered almost four times the legal limit on a breathalyzer test. So what we're going to look at first is what is nose mean. And actually we look to the rules. We look to the glossary section of the model Rules of Professional Conduct or rule 1.0 F. And nose is defined as actual knowledge of the fact in question, which may be inferred from the circumstances. Whether a lawyer actually possesses knowledge or actual knowledge is to be determined by an objective standard. What can the lawyer reasonably infer from the circumstances as to whether the conduct in question more likely than not occurred? However, remember a lawyer does not have a duty to investigate further. If the lawyer doesn't possess the requisite knowledge to trigger the mandated or the mandatory reporting duty, there's a great Kentucky ethics opinion from 2010 that stands for the proposition and says that while lawyers cannot turn a blind eye to obviously questionable, questionable conduct, as a general rule, they do not have a duty to investigate. Remember as well, absolute certainty is not required, but also mere suspicion is not enough. Hearsay doesn't constitute knowledge. And, you know, everybody knows it's out there. Everybody is not a defense. The duty is absolute. So let's look at this in light of our hypothetical or our scenario. The scenario says that counsel and the court learn from the court bailiffs of a breathtakingly bad breathalyzer test on on this counsel. You really have to ask yourself whether that information, you know, was duly entered into the record. Were there findings made or whether counsel just overheard some courtroom hallway chatter or gossip by the bailiffs? The latter situation, the hearsay situation or the chatter situation, it may not rise to the level of nose. Let's also look to what what is a substantial question. Right. And again here we've got to go back to the glossary section of the rules. Section 1.0 L where substantial is defined as of clear and weighty importance. We also need to look at the comments to the rule in this case. Comment three which states this rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is required in complying with the provisions of this rule. And here's the important part. The term substantial refers to the seriousness of the possible offense, and not the quantum of evidence of which the lawyer is aware. A serious ethical violation, not just any rule violation, must be reported. It has to meet a higher threshold. So going back to our scenario and looking at substantial and substantial question, the breathalyzer score, um, was almost four times the legal limit, which is serious, implicating a substantial fitness or a possible substantial fitness issue. But what if it was lower? Would that be serious enough to trigger mandate mandatory reporting? Some commentators, when thinking about substantial question, have suggested that the test may be something like the misconduct for which the court has in the past imposed public discipline. I'm not sure if that is quite broad enough under the terms of rule 8.3 A, but it is something to consider. So what about the timing? When do I have to make this report? Sadly for us, the rule itself is silent on the issue of when a lawyer must report another lawyer's misconduct and there's no latches or statute of limitation on the reporting. So what do I do to determine? Well think a lawyer should report the violation as soon as practical, bearing in mind that the attorney's duties to his her, their clients and the judicial system. The potential for prejudice or harm if the report is delayed. Witness memories fade. They disappear. Documents and evidence go missing. And also think about whether reporting will potentially add a collateral issue, which can adversely affect the fair or orderly conduct of the proceedings. Case precedent. There is some case that stands for when, although a little bit vague. And that's the case on the screen in front of you. United States versus Kanter. You know it says that case says it needs to be the reporting needs to be reasonable under the circumstances. Again, reasonable reasonableness standard is not very helpful here. And I really do think it depends on the facts and circumstances of the case. There's a good New York City ethics opinion, an oldie but a goodie from 1990 that stated that although the reporting must be prompt, some delay may be warranted to protect the client's interests. The lawyer should balance the severity of the misconduct and the likelihood of its repetition against possible prejudice to the client. Another case out of Vermont, the Ray Anderson case, was a was a case where the court held that nine months was way too long for a former disciplinary board member to wait to report a partner's mishandling of funds in the client trust fund account. So to whom do we need to report again? Sadly for us, paragraphs A and B of rule 8.3 do not specify what is the appropriate authority to receive a report. You know. Comment one makes a mention of the need to initiate a disciplinary investigation, and comment three refers to making the report to the bar disciplinary agency, unless some other agency is more appropriate in the circumstances. Um, some states are more explicit in their state rule. You know, states such as mine, Illinois say it means an authority empowered to act upon a charge of attorney misconduct. You know, the Supreme Court or its delegated agent, which is the attorney registration and disciplinary commission here in Illinois, unless some other agency is more appropriate in the circumstances. Further, I think, you know, there are other jurisdictions that have amended their versions of rule 8.3 to identify the proper authority. North Carolina is one that you can see on the screen. And in addition, some states or some courts actually invoke 8.3 to find standing for a litigant to move for the disqualification of an opposing lawyer based on a violation of the rules, even though the moving litigant suffered no harm for the violation. The rule you know here the obligation here of the movant's lawyer to report the opposing lawyer's misconduct actually bestows the standing for the motion. Two last points. I want to make reports to a trial court or other tribunal is not in compliance with rule 8.3. Great Ohio Ethics opinion from 2007. You have to make the reports to the disciplinary council not satisfied by reporting misconduct to the tribunal. And another one out of Philadelphia that said, it's a 2009 one. That said, the litigator must report the opposing counsel's misconduct disciplinary authority, even if he already reported it to the trial court. Last comments filing a legal malpractice action does not satisfy reporting requirements. Great Connecticut Informal ethics opinion from 2005. That stands for the proposition that initiating a malpractice action against former counsel does not satisfy 8.3. So we've talked about 8.3 A. Let's move to B and let's talk about reporting a judge's violation. Lawyers have a similar obligation with regard to judicial misconduct. 8.3 B should look very similar. And it says a lawyer who knows that a judge has committed a violation of the applicable rules of judicial conduct. That raises a substantial question as to that judge's fitness for office shall inform the appropriate authority. Let's, you know, try a few questions, try it on for size practice what we've learned here. So the first question is the judge already knows and said on the record that he she they would file a report. Is that enough. And we know that it's not right. It has to come from the attorney. Coming from the tribunal is not enough. Or this one. It's all over the news. I'm sure that the disciplinary authority has already gotten an investigation open. Is that enough? And again, not enough. The attorney, the lawyer has to file the the reports or face the disciplinary consequences. Or how about this one? My client said she would file the grievance. Is that okay? Still not okay. We know that the obligation is for the attorney to report. And the last one. My partner said she would file the report and I will sign my name to it. Is that okay? Well, nothing in the rule relieves a lawyer from reporting another lawyer's misconduct when it's required, because someone else has done so already. The duty to report is absolute, and the lawyer cannot be prevented or excused from discharging this duty by a court. A client or by a report made by the client or someone else, even if it became common knowledge. You know they you can't sign your name to it, file it jointly, file one reports and it's the attorney all together filing that report so it's permissible. A lot of times people ask, well, what about filing the report anonymously? And while clearly a lawyer might like to remain anonymous in this filing, if a lawyer concludes that he or she or they have a duty to report, making this report anonymously is not okay. One it could make it difficult for the lawyer to provide proof later that they had fulfilled their obligation under the rule. And two, an anonymous report is not going to be helpful to the disciplinary or the regulatory authority in its investigation, and it actually could stymie the investigation if additional information is needed, where are they going to go to get it? How are they going to find out? So let's look at the last part of the rule. The last part of the rule deals with confidentiality. And this what what says is this rule does not require disclosure of information otherwise protected by rule 1.6. That's the duty of confidentiality or. Information gained by a lawyer or judge while participating in an approved Lawyers Assistance program. Well, what does this mean? What are we looking at? What are we thinking about when we look at 8.3? See? 8.3 C makes the duty to report misconduct subordinate to the duty of confidentiality set forth in rule 1.6. So what are we thinking about? Well, we're reporting could implicate a client's interests. And the facts on which the report is based came to the lawyer in connection with the representation, which I think would almost always be the case. There is no duty to report absent the client's affirmative informed consent. Further. And I'm taking this from the ethics opinion from 2004 044 33. As a practical matter, clients have the ultimate authority when it comes to protecting confidential information. Hence, however salutary, or indeed, however and indeed important to, the reporting of misconduct of lawyers may be under the model rules, the hands of lawyers are often effectively tied in these situations by the wishes or even whims of their clients. The rule expressly provides that a lawyer is not required to report if it would involve disclosure of information protected by 1.6, which means everything and anything related to the representation. And 1.6, as you know, is much broader than just the attorney client privilege. The duty of confidentiality under 1.6 a, unlike the evidentiary privilege, does not only apply to matters communicated in confidence by the client, but also to all information relating to the representation, whatever the source. Think you know. The lawyer is encouraged to urge the client to consent to the disclosure, provided that the reporting of the misconduct would not substantially prejudice the client's interests. If the client refuses to give consent, a lawyer would take a next step, right? And they would need to consider whether any of the exceptions to client consent under rule. You know, the permissive exceptions under 1.6 be permits or requires disclosure, or if reporting can be accomplished by the disclosure of information that, while confidential, is not otherwise protected by the attorney client privilege or other law. And in fact, in some circumstances, the lawyer may need to withdraw from the representation altogether. Some other circumstances where this 1.6 confidentiality issue arises. First, thinking back about judges and the formal ethics opinion, seven 449 stands for the proposition that a lawyer representing a judge in one matter may not report the judge's misconduct in a separate matter without the judge's consent. In addition, there are certain rules or certain parameters we have to file for inside ethics counsel or professional responsibility counsel or general counsel, whatever you whatever you call it in the firm. And another ethics opinion out of the ABA from 2008 says basically that information, you know, a firm's information, the ethics counsel, the firm's inside ethics counsel has about a firm members misconduct will be information relating to the representation of the ethics counsel's client, the law firm, and therefore the mandatory reporting requirements is subject to the firm's consent. Again, going along these confidentiality 1.6 guidelines. A few other things. And we talked a little bit about this with regard to making the report when you have to. We're going to look at it from a 1.6 perspective. What happens when the complaint is filed and there's a great ethics opinion? Oldie but a goodie that says a lawyer representing a plaintiff in a legal malpractice action may not report misconduct unless the client consents and the filing of the suit. Right. Getting it out there. It's not in the public record. It may be publicly accessible. Does not waive the confidentiality of the underlying information for the reporting purposes under 8.3 A. Another one to consider. Mediators, arbitrators. How do they fit within this? 8.3 A construct Illinois Ethics opinion from 2011 talks about this issue and it says a lawyer mediator who learns during confidential mediation that a lawyer for a party has violated 8.4. And that's what they look at here in Illinois, you know, criminal conduct or conduct that involves fraud, deceit, dishonesty or misrepresentation has to report the misconduct. So why the prohibition on the second part of 8.3? See why the prohibition? If you learned the information as part of a lawyers assistance program. Well, I think the first reason is the broad umbrella, right. Social policy. We want to encourage lawyers and judges to seek help from lawyers assistance programs. We want them to seek treatment information resources. We want to combat the stigma around these issues. And also one of the greatest fears, or one of the greatest reasons why lawyers and judges don't go to programs or seek treatment is because of the confidentiality aspect. They're worried that people will find out, that somebody will know, and for this reason, reports are exempted. The exemption actually, in interestingly enough, the exemption was actually broadened in 2002 to protect information learned by judges and lawyers who are participating in as opposed to serving as a member of these programs. So really, it has been broadened to incorporate or include everybody who participates, who learns information from a from a lawyers assistance program. The rule, of course, does not preclude voluntary disclosure. One could certainly, you know, volunteer the information, but it's not required. You know, this is a great opportunity for those of you who are not familiar with a Lap or a lawyers assistance program. Just briefly, it is, you know, the mission of Lawyers Assistance Program across the country really do take a broad brush approach. They assist attorneys, judges, law students and bar applicants who suffer from physical or mental issues that result from disease, chemical dependency, mental health issues that could impair or do impair their ability to practice. You know, the impairment is actually defined in formal ethics opinion zero three 431. And what they do is they seek to educate the bench and bar about the impairments with outreach in the law schools, firms, judicial conferences through their websites and publications. They seek to reduce or minimize the potential harm that an impairment impaired attorney can cause to themselves, to the public, to the profession as a whole and the entire legal system. You know, the lab staff are are oftentimes therapists, clinical professional counselors. They specialize in addictions medicine, master's level clinicians. Oftentimes they are in recovery themselves. And they they may while they may receive their funding from a state bar. The critical point here is that they are not, I repeat, not part of the disciplinary or regulatory process offering all sorts of services. They are non-judgmental. They are non-obligatory. Most of them, most of the services are free. And if you hear nothing else about a lap, they provide confidential help by court rule, by ABA policy, by state rules. The information and actions taken by a Lap are privileged and held in the strictest confidence. And as we mentioned, they are exempt from the reporting requirements of 8.3. You can trust a Lap professional to keep your information confidential. And if you don't know where the lap is in your state, I've got the link to the directory of lap programs across the country. So a couple more hypotheticals that will walk through briefly our scenario. One is with John and Jane, and John is an attorney and he is divorcing his wife Jane, and they're fighting over custody of their kids. Jane tells the judge that John is unfit because he's addicted to opioids, and it impairs his ability to practice and care for their children. John confesses to you, his attorney, that in fact, this is true, and he financed his law school by selling prescription drugs. So the questions I pose to you are, you know, do you have any obligations to disclose? And second, bar counsel actually contacts you because they are investigating John's conduct. Do you have to respond? Do you have to disclose? So what do we think here? I mean, think it goes back to exactly what we were talking about. This 1.6 exception under 8.3. See, John is your client. This information was told to you as part of the representation. So, you know, there's there's no disclosure. But when Bar Council contacts you. Two issues here. One. Yes, you have to respond. And that's another rule. 8.1 B it's a lawful demand by a regulatory agency. But you don't have to disclose. Right. It's it's attorney client privileged information. It's not it's not a disclosure. So the second scenario with Lisa LaMontagne, she's a judge and she's campaigning for re-election. And you're a member of the local bar, and you know Lisa quite well. You also know that she drinks to the point of unconsciousness from time to time, and occasionally takes small bribes from parties who appear before her. What do you do? Well, if we go back to 8.3 B, I think this is a serious, you know, serious impairment and taking bribes are clearly we haven't gone into judicial, you know, code of judicial conduct, but they are clearly violations of judicial conduct serious enough to raise a substantial question about the judge's fitness. And under 8.3 B the lawyer has a duty to report. Last scenario. Tina and Tim. Tina is a lawyer and in recovery for the past ten years, and she volunteers to serve in her local Lap program. Tim seeks assistance from the lab and tells Tina that he drinks a bottle of whiskey with his morning bowl of cereal, and that by noon, he is usually passed out on his desk. He often misses court dates, and his voicemail is full of client calls. So in this situation, does Tina have an obligation to report? And of course she does not. This is the example right here of 8.3. See, the information that Tina has about Tim came as a result of her participation, conversation, involvement in the context of a lab program. And so there is no reporting requirement here. With the remainder of our time. I would really like to talk about some cautionary case tales with regards to rule the model rule 8.3, and the lessons that we can learn from each of them. And to be fair, I really do have to start with the Himmel rule. It's 8.3 here in Illinois, and for those of you in Illinois, you will all know this. As I said, in fact, we refer to 8.3 as the Himmel rule. Um. You know, a lawyer who fails to report serious misconduct by another lawyer may be subject to discipline. And we've been looking at this rule and explaining its terms and doing a deep dive for most of the hour. However, I have to admit, um, in preparing for this and looking around the country, there are relatively few public reports of lawyers being disciplined for not reporting. Illinois actually seems to have the groundbreaking case in this instance. What happened? James Himmel agreed to represent the 18 year old victim of a motorcycle accident to recover settlement money from her first attorney. The client had won a 23,000 settlement offer after the accident, but her first attorney had allegedly pocketed, misappropriated converted the money instead. So over the course of 24 months, Himmel brokered an agreement where the first attorney promised to pay $75,000 if the client agreed not to prosecute. But what happened? The lawyer didn't pay. Himmel got a judgment against the lawyer, but only a fraction of the funds were actually paid to the client. The client asked Himmel not to report the first lawyer's misconduct to the disciplinary agency here in Illinois. Because she feared it would hinder the recovery efforts. Himmel did as the client requested, but his license was suspended for a year for failure to report. In 1986, the RTC charged Himmel with a violation of the rule at the time for failing to report the first attorney's misconduct. You can see the holding on the screen in front of you and think, there is really an interesting side note to the Himmel story. As a result of this case, the number of reports by Illinois attorneys on other attorneys jumped from 154in the year. Himmel was decided to 922 the following year. Another interesting side note with Himmel and other cases that are publicly, publicly reported on 8.3 is that typically other misconduct or other rule violations are alleged in the complaint as well. Another really interesting and kind of sad case comes out of Louisiana and it's the Relman case. Lots of words on this screen. I really give it to you for your further reference and resource, because I'm sure all of you will see the PowerPoints. It comes out of Louisiana in this case, lawyer Deegan told his friend and former colleague Relman, you know, that he was dying of colon cancer, and Deegan at one point had been a prosecutor but had later transitioned to defense work. And he confessed to Relman that he deliberately failed to disclose blood evidence in a case that he had prosecuted many years earlier, and that the evidence actually indicated that the defendant was not guilty. The defendant had ultimately been convicted and sentenced to die by lethal injection. Roman, you know, was shocked and told Deegan, you've got to fix this right away. And you know, Roman didn't check back. He was dealing with a lot of personal issues, didn't do anything else with the information. And two months later, Deegan died and Deegan never had made the disclosure. Five years later, and shortly before the convicted defendant was scheduled to die, the defendant's lawyer actually discovered this previously undisclosed blood evidence that proved the defendant's innocence. Roman. Here's the news. Contacts the defendant's lawyers, executes an affidavit reporting what Deegan had told him way before. You know about not disclosing it. Um. You know. And the next month, Roman reported deagle deegan's likely ethical violation to the Office of Disciplinary Counsel. This case went up and back, right? The hearing hearing group said, no, there's no violation here, but we're going to give a public reprimand for a violation of 8.4 D, prejudicial to the administration of prejudicial to the administration of justice. Then it went up higher and said, you know, uh, to the to the appeal board. And they said, no, there is a violation of 8.3 A and it should be a six month suspension. Then it goes it gets appealed to the Louisiana Supreme Court. And they, you know, kind of split the baby. They said, yes, there is a violation. But we think the sanction should be a public reprimand. So the next question, you know, what about do I have to report. Do I have to file an 8.3 a report if I'm going to be implicating myself in the misconduct? Well, unfortunately for us, although rule 8.3 does not require a lawyer to report him, her or themself their own misconduct, the lawyer must report the misconduct of others, even if by doing so it would implicate their own conduct as well. Several cases or for two cases, and a informal ethics opinion on the screen in front of you that really stand for this proposition. The rivers case out of South Carolina, where it was a new lawyer. You know, he basically helped his partner, his supervisor, to do some pretexting to contact potential jurors, you know, and the lawyer was later disciplined for failing to report the partner as well as, you know, in that report, he would have had to reveal his own conduct in the matter. Connecticut informal ethics opinion here. Excuse me and the loads case out of New York, where a county attorney did not report kickback demands of a lawyer who is a state senator. Another question that seems to arise and is that and is very awkward, particularly for junior associates, is implicating my partners. You know, what about reporting my partners or supervisors or law firm colleagues? We said no one likes a tattletale. And I think it's incredibly difficult for somebody new at the firm or in a junior position to see this kind of conduct and then have to file the report with the regulatory or the disciplinary agency. Nobody wants to do this. But the rule says and would and precedent would say that a lawyer generally must report the misconduct of law firm colleagues and form and former law firm colleagues. Um, a Maryland ethics opinion, as well as a South Carolina ethics opinion. Um, in addition to one of the seminal cases here, again, I apologize. It's out of Illinois, but it is a great case to talk about when we're discussing implicating my partners, colleagues, other law firm associates. And that's the Skolnick versus Altheimer and Gray case way back from 2000. What happened in this case? Well, I think it's difficult to fully understand an attorney's duty under 8.3 A and the Himmel rule without actually. And also discussing the Supreme Court of Illinois decision in this case. In this case, attorney Kenneth Skolnick was charged by the administrator of the Attorney Registration and Disciplinary Commission with violating several Illinois Rules of professional conduct. Skolnick was actually reported to the RTC by his former firm, Altheimer and Gray, and one of its associates, Terry Robin Horowitz. Cass. Cass and another attorney in the firm made actually made contemporaneous reports to RTC alleging that Skolnick had falsified a document in a court filing. The RTC investigated and ultimately concluded that the evidence was insufficient to sustain the charges and closed the investigation. So what did Skolnick do? Skolnick brought suit against the firm as well as CAS, alleging that they falsely accused him of creating a false a forged documents, and in the lawsuit, the circuit court entered an agreed protective order regarding the discovery. The order allowed any party to designate discovery documents as confidential, so during discovery, CAS lawyers obtain documents that they believed showed Skolnick had engaged in misconduct, and they petitioned the court to modify the protective order to permit disclosure of the evidence. And CAS said, you know, this knowledge, this this evidence triggers my duty to report. Well, the circuit court denied the motion to modify the protective order, but did grant CAS leave to file a counterclaim under seal? Cas appealed, claiming both a violation of Himal 8.3 A and a First Amendment right to disclose. So it goes up to the Supreme Court. And what does the Supreme Court? What happens at the Supreme Court? Well, Skolnick argues that the circumstances of this case did not trigger the reporting obligations stated in 8.3 A Skolnick maintained that CAS did not possess the requisite knowledge that mandated reporting, because she failed to demonstrate the alleged wrongdoing with a sufficient degree of certainty, meaning absolute certainty. In its analysis, the Supreme Court actually looked to the definition of knows the same way we did at the very beginning in the Illinois Rules of Professional Conduct, which was defined as actual knowledge that may be inferred from the circumstances similar to the ABA model rule. In addition, the court looked at other opinions interpreting ABA model rule 8.3, and found that other states courts held knowledge to mean more than mere suspicion, but not necessarily absolute certainty. So in the end, the court held that the knowledge required to trigger the 8.3 day reporting duty need only be information known. That raises more than a mere suspicion of misconduct. The court ruled that CAS could have reasonably inferred from the circumstances of the events revealed by the discovery documents that Skolnick had engaged in this behavior. Forging this one documents. So what they said was they that caste had the requisite knowledge to trigger the reporting requirements and as a result, had the duty to report Skolnick to the RTC. Interesting. Brings these two ideas together. Something to consider. Again, the duty to report exists regardless of the cause of the misconduct or whether the lawyer being reported has entered treatment for an impairment that resulted in the misconduct. Whole bunch of ethics opinions on the screen in front of you that talk about when there's impairments of an attorney, what needs to be reported. You know, how it needs to be reported. And in addition, there are three ethics opinions one from the ABA, one from DC, and one from Virginia that talk about the proactive duty within a within a firm not only to deal with these issues, but also the reporting requirements. So how about reporting suspended or out of state lawyers? You know, this is this is an issue as well. What happens when the I learn of conduct that involves, you know, a question of honesty, trustworthiness or fitness in other regards? Do I have a duty to report this misconduct? What if the attorney is no longer practicing? What if the attorney is suspended? Well, what the what the case law and what some of the ethics opinions state is misconduct by a suspended out of state or non practicing attorney is treated as misconduct by another lawyer for reporting purposes. What does this mean? It means you still have an obligation to to report the conduct. 8.8.3 A still applies in these circumstances, particularly with the suspended attorneys. Mean this attorney if they're suspended, they don't have an active license to practice law. They are, you know, going against whatever sanction has been imposed against them. They are practicing in violation of the rules. This would clearly be an issue with regard to their fitness to practice. You know, one, their honesty, their candor, their truthfulness, as well as apparently they're not adhering or they don't care about the rule. You know, the the sanction that has been entered against them. They can't abide by the rules. Similarly, out of state attorneys, we you know, we look to another rule. We look to. And I'm speaking of the model rules here. Aba rule 5.5. And it's, you know, subsections. Do we have a duty to report. Again, just because where they're located, particularly in this virtual world, isn't going to make a difference. You're going to report it to the state in which that that attorney is licensed. And another thing to note here, while it does not obviate the need for the lawyer to report, there is a databank and it is called the National Regulatory Databank and it's maintained by the American Bar Association. And what that is, is that every order of discipline, whether it comes from a federal jurisdiction, a federal court, a federal agency such as the United States Patent and Trademark Office or a state jurisdiction, all of the disciplinary orders are sent to this national regulatory data bank. They are then sent to the states in which that disciplined attorney is licensed, so that everybody is on board and is aware of the discipline that has been entered in this situation. We've got some cases, as well as some ethics opinions that speak to this premise. The Brennan case, a case out of Maryland, you know, talks about an attorney must report a suspended lawyer is misrepresenting his status, lawyer going into court, you know, saying he's active and licensed other attorney knows that is not seeing a Bar Journal report about the suspension. The lawyer has an obligation to report the Gilmore case, a South Carolina case, again, another one where a suspended lawyer has come to a different lawyer saying, hey, you know what? I'd love to work with you. I'd love to practice with you. Um, lawyer, to whom he's speaking, knows that this lawyer is disciplined, has has a duty to report ABA ethics opinion, I think gives a little bit of a tangent on this issue. The one from 2004 saying that you, the attorney, have to report the misconduct of a non practicing lawyer, even if it involves activity completely removed from the practice of law. Again, remember what the rule says in its essence, right? Its nose substantial question of something that is, you know, relates to honesty, trustworthiness or fitness in other respects. So an attorney's, you know, engaging in criminal conduct and attorneys engaging in dishonesty, fraud, deceit or misrepresentation, even though it doesn't have anything to do with representing a client, even though it may be something in the personal sphere, that lawyer still has an obligation to report. Otherwise, face a. Violation of the rule for him her themself. Some other ones here. The New York State ethics opinion from 2016. Have to report unauthorized practice. A Maryland ethics opinion, again about unauthorized practice of law. And so what we have seen is, you know, through the course of this program is sort of an understanding. I hope that you have a greater understanding into what the terms of the rules mean and why they are so important, and what you need to consider with regard to who, what, when and how. As well as some of the cautionary case tales that we have seen that involve various aspects. While maybe not within the rule where we have opinions as well as case precedent that sort of broaden the scope and explains the situation and the reporting requirements with regard to our partners with regard to judges, mediators as well as some of the seminal cases. Around eight point 3AI hope that you've enjoyed this presentation. As I said, my contact information is at the start of the program as well as my bio. And if you have any further questions, please feel free to reach out to me directly. Thanks so much and we'll see you next time.

Presenter(s)

TKJ
Tracy Kepler, JD
Risk Control Consulting Director, Lawyers’ Professional Liability Program
CNA

Course materials

Handout

Practice areas

Credit information

Jurisdiction
Credits
Available until
Status
Alabama
    Pending
    Alaska
    • 1.0 ethics
    October 18, 2025 at 11:59PM HST Available
    Arizona
    • 1.0 professional responsibility
    October 18, 2025 at 11:59PM HST Available
    Arkansas
    • 1.0 ethics
    October 18, 2025 at 11:59PM HST Approved
    California
    • 1.0 ethics
    October 18, 2025 at 11:59PM HST Approved
    Colorado
      Pending
      Connecticut
      • 1.0 ethics
      October 18, 2025 at 11:59PM HST Available
      Delaware
        Pending
        District of Columbia
          Not Offered
          Florida
            Pending
            Georgia
            • 1.0 ethics
            December 31, 2024 at 11:59PM HST Approved
            Guam
            • 1.0 ethics
            October 18, 2025 at 11:59PM HST Available
            Hawaii
            • 1.0 ethics
            October 18, 2025 at 11:59PM HST Approved
            Idaho
              Pending
              Illinois
              • 1.0 professional responsibility
              October 17, 2025 at 11:59PM HST Approved
              Indiana
              • 1.0 ethics
              December 31, 2024 at 11:59PM HST Approved
              Iowa
              • 1.0 ethics
              January 10, 2025 at 11:59PM HST Approved
              Kansas
                Pending
                Kentucky
                  Pending
                  Louisiana
                    Pending
                    Maine
                      Pending
                      Maryland
                        Not Offered
                        Massachusetts
                          Not Offered
                          Michigan
                            Not Offered
                            Minnesota
                              Pending
                              Mississippi
                                Pending
                                Missouri
                                  Pending
                                  Montana
                                    Pending
                                    Nebraska
                                      Pending
                                      Nevada
                                      • 1.0 ethics
                                      December 31, 2026 at 11:59PM HST Approved
                                      New Hampshire
                                      • 1.0 ethics
                                      October 18, 2025 at 11:59PM HST Available
                                      New Jersey
                                        Pending
                                        New Mexico
                                          Pending
                                          New York
                                          • 1.0 ethics
                                          October 18, 2025 at 11:59PM HST Available
                                          North Carolina
                                            Not Offered
                                            North Dakota
                                            • 1.0 ethics
                                            October 18, 2025 at 11:59PM HST Available
                                            Ohio
                                            • 1.0 professional conduct
                                            Unavailable
                                            Oklahoma
                                              Pending
                                              Oregon
                                                Pending
                                                Pennsylvania
                                                • 1.0 ethics
                                                January 16, 2026 at 11:59PM HST Approved
                                                Puerto Rico
                                                  Pending
                                                  Rhode Island
                                                    Pending
                                                    South Carolina
                                                      Pending
                                                      South Dakota
                                                        Not Offered
                                                        Tennessee
                                                        • 1.0 ethics
                                                        October 19, 2024 at 11:59PM HST Approved
                                                        Texas
                                                        • 1.0 ethics
                                                        April 30, 2025 at 11:59PM HST Approved
                                                        Utah
                                                        • 1.0 ethics
                                                        December 31, 2024 at 11:59PM HST Approved
                                                        Vermont
                                                        • 1.0 ethics
                                                        October 18, 2025 at 11:59PM HST Approved
                                                        Virginia
                                                          Not Eligible
                                                          Virgin Islands
                                                          • 1.0 ethics
                                                          October 18, 2025 at 11:59PM HST Approved
                                                          Washington
                                                            Pending
                                                            West Virginia
                                                              Not Eligible
                                                              Wisconsin
                                                                Not Eligible
                                                                Wyoming
                                                                  Pending
                                                                  Credits
                                                                    Available until
                                                                    Status
                                                                    Pending
                                                                    Credits
                                                                    • 1.0 ethics
                                                                    Available until

                                                                    October 18, 2025 at 11:59PM HST

                                                                    Status
                                                                    Available
                                                                    Credits
                                                                    • 1.0 professional responsibility
                                                                    Available until

                                                                    October 18, 2025 at 11:59PM HST

                                                                    Status
                                                                    Available
                                                                    Credits
                                                                    • 1.0 ethics
                                                                    Available until

                                                                    October 18, 2025 at 11:59PM HST

                                                                    Status
                                                                    Approved
                                                                    Credits
                                                                    • 1.0 ethics
                                                                    Available until

                                                                    October 18, 2025 at 11:59PM HST

                                                                    Status
                                                                    Approved
                                                                    Credits
                                                                      Available until
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                                                                      Pending
                                                                      Credits
                                                                      • 1.0 ethics
                                                                      Available until

                                                                      October 18, 2025 at 11:59PM HST

                                                                      Status
                                                                      Available
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                                                                            Credits
                                                                            • 1.0 ethics
                                                                            Available until

                                                                            December 31, 2024 at 11:59PM HST

                                                                            Status
                                                                            Approved
                                                                            Credits
                                                                            • 1.0 ethics
                                                                            Available until

                                                                            October 18, 2025 at 11:59PM HST

                                                                            Status
                                                                            Available
                                                                            Credits
                                                                            • 1.0 ethics
                                                                            Available until

                                                                            October 18, 2025 at 11:59PM HST

                                                                            Status
                                                                            Approved
                                                                            Credits
                                                                              Available until
                                                                              Status
                                                                              Pending
                                                                              Credits
                                                                              • 1.0 professional responsibility
                                                                              Available until

                                                                              October 17, 2025 at 11:59PM HST

                                                                              Status
                                                                              Approved
                                                                              Credits
                                                                              • 1.0 ethics
                                                                              Available until

                                                                              December 31, 2024 at 11:59PM HST

                                                                              Status
                                                                              Approved
                                                                              Credits
                                                                              • 1.0 ethics
                                                                              Available until

                                                                              January 10, 2025 at 11:59PM HST

                                                                              Status
                                                                              Approved
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                                                                                                      Credits
                                                                                                      • 1.0 ethics
                                                                                                      Available until

                                                                                                      December 31, 2026 at 11:59PM HST

                                                                                                      Status
                                                                                                      Approved
                                                                                                      Credits
                                                                                                      • 1.0 ethics
                                                                                                      Available until

                                                                                                      October 18, 2025 at 11:59PM HST

                                                                                                      Status
                                                                                                      Available
                                                                                                      Credits
                                                                                                        Available until
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                                                                                                        Pending
                                                                                                        Credits
                                                                                                          Available until
                                                                                                          Status
                                                                                                          Pending
                                                                                                          Credits
                                                                                                          • 1.0 ethics
                                                                                                          Available until

                                                                                                          October 18, 2025 at 11:59PM HST

                                                                                                          Status
                                                                                                          Available
                                                                                                          Credits
                                                                                                            Available until
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                                                                                                            Not Offered
                                                                                                            Credits
                                                                                                            • 1.0 ethics
                                                                                                            Available until

                                                                                                            October 18, 2025 at 11:59PM HST

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                                                                                                            Available
                                                                                                            Credits
                                                                                                            • 1.0 professional conduct
                                                                                                            Available until
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                                                                                                            Unavailable
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                                                                                                                Available until
                                                                                                                Status
                                                                                                                Pending
                                                                                                                Credits
                                                                                                                • 1.0 ethics
                                                                                                                Available until

                                                                                                                January 16, 2026 at 11:59PM HST

                                                                                                                Status
                                                                                                                Approved
                                                                                                                Credits
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                                                                                                                        Not Offered
                                                                                                                        Credits
                                                                                                                        • 1.0 ethics
                                                                                                                        Available until

                                                                                                                        October 19, 2024 at 11:59PM HST

                                                                                                                        Status
                                                                                                                        Approved
                                                                                                                        Credits
                                                                                                                        • 1.0 ethics
                                                                                                                        Available until

                                                                                                                        April 30, 2025 at 11:59PM HST

                                                                                                                        Status
                                                                                                                        Approved
                                                                                                                        Credits
                                                                                                                        • 1.0 ethics
                                                                                                                        Available until

                                                                                                                        December 31, 2024 at 11:59PM HST

                                                                                                                        Status
                                                                                                                        Approved
                                                                                                                        Credits
                                                                                                                        • 1.0 ethics
                                                                                                                        Available until

                                                                                                                        October 18, 2025 at 11:59PM HST

                                                                                                                        Status
                                                                                                                        Approved
                                                                                                                        Credits
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                                                                                                                          Not Eligible
                                                                                                                          Credits
                                                                                                                          • 1.0 ethics
                                                                                                                          Available until

                                                                                                                          October 18, 2025 at 11:59PM HST

                                                                                                                          Status
                                                                                                                          Approved
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