By W. William Hodes
The Daily Record Newswire
It is often said that law is an independent self-regulating profession.
But whether that is accurate depends upon what the meaning of the word “self” is.
In almost all American jurisdictions, lawyers are regulated exclusively by the highest court in the state, or by an arm of that court, such as a disciplinary commission or board. Inasmuch as all high court judges are also lawyers, such a regime could count as a form of self-regulation — lawyers are regulating other lawyers.
It might also be said, however, that the typical regime is not one of true self-regulation, because with respect to the disciplinary system, judges are simply government officials who happen to be lawyers.
In this view, although state and local bar associations often play a significant role in lawyer discipline, the legal profession does not truly police itself.
Whichever view is more nearly correct in any particular jurisdiction, there is almost uniform agreement — among lawyers, of course — that the unique and much prized independence of American lawyers would be irretrievably damaged if control over the legal profession passed predominantly into the hands of the legislative or executive branch of government — and thus into a political maelstrom that has been known to disfavor lawyers.
As a result, when there is a public outcry over significant lawyer misbehavior, leaders in the legal profession often make the dire prediction that “if we don’t clean up our own house, someone else — possibly even ... Congress — will do it for us.”
For this reason, as well as because of justifiable pride in belonging to a learned and public-regarding service profession, the law of lawyering has long imposed upon each lawyer an affirmative and enforceable professional duty to become part of the self-policing effort.
The rules at the margins
Today, every jurisdiction has enacted some variation of Rule 8.3 of the Model Rules of Professional Conduct, which states that a lawyer who “knows” that another lawyer has engaged in conduct that raises a “substantial question” about that lawyer’s honesty, trustworthiness or fitness as a lawyer, “shall” report it to the proper authorities. Serious misconduct of judges must also be reported.
As with any rule that contains words of qualification or limitation, application at the margins will require nuanced judgment, but no one should doubt the basic thrust of the rule.
Suppose, for example, that Lawyer A has stolen money from his client, and Lawyer B later successfully represents the client in a suit to recover the money. If Lawyer B does not report the theft to the disciplinary authorities, Lawyer B’s failure to do so is a breach of professional ethics. Such failure could subject Lawyer B to discipline, quite apart from whatever action might later be taken against Lawyer A.
Similarly, if criminal defense counsel knows that the prosecutor has fabricated evidence or knowingly presented perjured testimony, defense counsel is obligated, on pain of professional discipline, to report the misconduct.
Prior to 1983, when most states were operating under the Model Code of Professional Conduct, there was still a mandatory reporting rule — often disparaged as the “snitch rule.” But the rule was so broad in scope, that it was unworkable, unenforceable and widely ignored by lawyers generally and by disciplinary authorities as well.
Model Rule 8.3 narrowed but also sharpened the rule — only the most serious violations, and only those implicating honesty, trustworthiness and fitness to remain a lawyer at all, trigger the mandatory duty to report. But when that duty is triggered, the rule means what it says, subject only to the continuing duty to protect a client’s confidential information, unless the client has waived that protection.
Moral obligation
It remains true that disciplinary prosecutions for failure to report, without more, are exceedingly rare.
But avoiding prosecution is not the only reason to participate in the hard work of improving our profession. Protecting the public from serial offenders and enhancing the reputation of lawyers generally must be given their due.
Nonetheless, lawyers facing a possible mandatory reporting situation often strain to interpret the facts so as to avoid reporting. This is no doubt in large part a matter of antipathy towards “tattletales,” brought forward from the culture of the playground.
But we are not on the playground now. Even if serious misconduct by another lawyer does not rise to the level or fit the parameters of the mandatory reporting rule, that merely means that the first lawyer cannot, even theoretically, be disciplined for failure to report. But what about the lawyer’s moral obligation to the public and to the profession? Why shouldn’t the lawyer make the report voluntarily, simply because it is the right thing to do?
Ingrained cultural values die hard. But lawyers are part of a subculture that recognizes the importance of publicly airing serious issues, even when it would be more convenient to sweep them under the rug.
No one suggests going to the opposite extreme of pettifogging every minor issue, but significant misconduct should be reported, regardless of whether it falls under the aegis of Model Rule 8.3 or its counterparts.
That is one of the inescapable responsibilities of being a member of an independent, self-regulating profession, no matter how that is defined.
William Hodes is a solo practitioner and consultant who concentrates in legal ethics and the law of lawyering. Based in Lady Lake, Fla. and Indianapolis, he is Professor Emeritus of Law at Indiana University, where he taught for 20 years. Hodes’s website is www.hodeslaw.com.
