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Failure to Report to ODC: Violation or Larger Problem?

By: Leslie A. Mariotti, Marc Stephen Raspanti
August 27, 2013

A lawyer typically spends four years in college and three or more years in law school. Some even spend a few years in graduate school before attending law school. While in law school, all lawyers are now required to take a course in professional responsibility and, prior to practicing law, lawyers take the Multistate Professional Responsibility Examination (MPRE) as well as the bar exam. As a result of this intense education, lawyers are seemingly well aware of many of their professional and ethical obligations. By way of example, lawyers must pay their annual dues to the Pennsylvania Disciplinary Board and ensure that they have their 12 CLE credits, with at least one in ethics, completed annually. However, a surprising number of practicing Pennsylvania lawyers are unaware of their reporting obligations under the relevant Pennsylvania Rules of Professional Conduct.

The legal profession, in order to accomplish its mission of predominantly self-regulation, imposes certain reporting obligations upon lawyers. Under the Pennsylvania Rules of Professional Conduct, lawyers are obligated to report professional misconduct by other lawyers, as well as by judges.

A Lawyer's Duty To Report Misconduct Of Others

The Pennsylvania Rules of Professional Conduct set forth "the minimum ethical standards for the practice of law and constitute a set of rules which all lawyers must follow." Rule 8.3, "Reporting Professional Misconduct," requires that:

"(a) 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.

(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.

(c) 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."

Rule 8.3 is limited in scope. It requires that lawyers report only instances of misconduct that raise a substantial question as to the honesty, trustworthiness or fitness of a lawyer or the fitness for office of a judge. Further, the rule does not require that lawyers report suspected or unconfirmed misconduct; rather, lawyers must act only "upon acquiring actual knowledge" of misconduct. Moreover, the rule does not require disclosure of confidential information.

Where, however, a lawyer has credible knowledge of misconduct by a fellow lawyer that fits within the limited circumstances outlined above, Rule 8.3(a) requires that the lawyer report the misconduct to the Disciplinary Board of the Supreme Court or the Office of Disciplinary Counsel. Likewise, Rule 8.3(b) requires that a lawyer with knowledge of judicial misconduct report the misconduct to the Judicial Conduct Board. Importantly, reporting misconduct to law enforcement does not relieve a lawyer of his or her responsibilities under Rule 8.3. The lawyer must also report the misconduct to the Disciplinary Board or the JCB.

Despite the import of the rule, recent events have made clear that few lawyers are fully aware of Rule 8.3 or believe it applies to them. There may be valid and even justifiable reasons for this good-faith ignorance or reluctance to report a colleague or judge to disciplinary authorities.

Hurdles To Compliance

Some lawyers are simply unaware of their obligations under Rule 8.3. Even among those lawyers who understand Rule 8.3, however, there remain legitimate hurdles to compliance. One obvious hurdle is the perception that it is not our business to police the actions of our colleagues or to act as whistleblowers. An additional deterrent to compliance with Rule 8.3(b), which requires reporting judicial misconduct, is fear of some type of overt or covert retaliation. This fear is more amplified as judicial recusal in Pennsylvania is left up to the individual judge. Unfortunately, because the integrity of the legal profession is dependent mostly upon voluntary compliance with this rule, turning a blind eye on obligations under Rule 8.3 is not always the best course. As noted in the preamble to the rules:

"The legal profession's relative autonomy carries with it special responsibilities of self-government. ... Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves."

Lawyers have been entrusted with this responsibility because they are in the best position to observe actual misconduct by fellow lawyers and judges and to assist the profession in investigating and sanctioning such misconduct. Rule 8.3 makes each lawyer's role in maintaining the self-regulation of our profession mandatory. It is important for those hesitant to "whistleblow" to remember that failure to report serious misconduct by a judge or lawyer means that the judge or lawyer can, and will, continue to corrode the system and undermine the public's confidence in the bar and the judiciary.

Scandal Was The Birthplace Of Modern Legal Ethics

Legal ethics requirements were born of one of the great American political scandals of the 20th century: Watergate. Virtually all of the main players in the Watergate scandal — including President Richard M. Nixon; two U.S. attorneys general; two White House counsel; an assistant attorney general; and a chairman of the U.S. Securities and Exchange Commission — were licensed lawyers. During former White House counsel John W. Dean III's testimony before the Senate Watergate Committee, Herman Talmadge, a senator from Georgia, directed Dean's attention to a list that Dean had prepared of the individuals who were involved in the scandal and whom he believed had broken the law. Dean had placed an asterisk beside the individuals on the list who were lawyers. Asked by Talmadge if there was any significance to the asterisks, Dean responded that it was "just a reaction" to the number of lawyers. He thought: "How in God's name could so many lawyers get involved in something like this?"

Following the resulting decline in the public opinion of lawyers, law schools instituted legal ethics as a required class, state bar exams added ethics sections, and almost all states began requiring that lawyers attend annual CLE programs focused on ethics and professional conduct, according to "The Lawyers of Watergate: How a '3rd-Rate Burglary' Provoked New Standards for Lawyer Ethics" by Mark Curriden, published in the ABA Journal, June 2012. These requirements were meant to prevent a reoccurrence of a Watergate-like occurrence.

The judicial corruption scandal in rural Luzerne County made clear that while rules regulating lawyers are now in place, compliance, particularly with Rule 8.3, remains an issue. In August 2009, an Interbranch Commission on Juvenile Justice was established in response to the highly publicized scandal. The commission was tasked with determining how the justice system had failed and with developing appropriate recommendations for reform. The commission's report noted that the failure of the juvenile court system was a "wake-up call to all judges and lawyers about the extensive damage that can occur when we are not vigilant about our conduct and the conduct of others in the community."

The improper procedures that were implemented in the Luzerne County juvenile court by a former state court judge were witnessed on a regular basis by numerous lawyers who practiced in his courtroom. The commission sought to determine why not a single lawyer had reported any misconduct to the JCB. At the outset, the commission found that "far too many professionals ... were wholly unaware that reporting judicial misconduct to the Judicial Conduct Board was not only an option but an ethical responsibility." Further, lawyers who practiced in the former judge's courtroom reported an atmosphere of deference to, and trust in, the judge. Perhaps other highly respected counsel simply wished to avoid any reprisals that could be detrimental to themselves or, more importantly, their clients. The single lawyer, who testified on the record that he believed something was amiss in Luzerne County, also testified that he did not believe there was anything he could do to address his concerns.

Because these lawyers either did not know that they had the option — and obligation under Rule 8.3 — to report judicial conduct, or did not believe it was their obligation to report the misconduct, the improper practices persisted in the Luzerne County juvenile court for far too long.

Fear Of Discipline

Another hurdle to robust compliance with Rule 8.3 is the lingering and legitimate concern of many lawyers that reporting misconduct could somehow result in their own discipline. However, lawyers who have been a part of the Pennsylvania disciplinary system will attest that this fear is largely unfounded. Reporting lawyers are not disciplined for complying with Rule 8.3. In fact, lawyers involved with the Pennsylvania disciplinary system tend to be impressed with the fairness, proportionality, due process and attention devoted by the ODC and the Disciplinary Board to ensure that the system works correctly and fairly.

Frankly, it is a lawyer's failure to comply with an obligation imposed by a Rule of Professional Conduct that may be a basis for invoking some aspect of the legal disciplinary process. The rules are enforced by the ODC in conjunction with the Disciplinary Board. The Supreme Court remains the final arbiter of the discipline that a lawyer may receive in Pennsylvania. A lawyer accused of violating the rules will be investigated by the ODC. If the Disciplinary Board concludes that an ethical violation has occurred, it can issue an informal or private reprimand. If it feels harsher discipline is warranted, the Disciplinary Board can recommend to the Supreme Court that it issue more severe punishment — public censure, suspension or, under the most extreme circumstances, disbarment.

There appears to be no disciplinary precedent in Pennsylvania with regard to the failure to report misconduct in violation of Rule 8.3. A 2010 internal review of the Disciplinary Board's records dating back to 1988 failed to disclose any reported case in which a lawyer had been publicly disciplined for a violation of Rule 8.3. (This finding is confirmed by a review of the Disciplinary Board's "Disciplinary Reporter," which turns up no published opinions in which an attorney is cited for violating Rule 8.3.)

However, while an attorney who is cited for violation of Rule 8.3 may not receive a public reprimand, he or she may receive a private reprimand of some kind from the ODC or from the Disciplinary Board itself. The ODC maintains a private record of all such violations. Subsequent violations of these rules can result in more serious discipline.

Necessary compliance

Reporting requirements under Rule 8.3 are often overlooked, unknown, or at times, consciously avoided, yet serve as an essential bulwark of the legal profession. Compliance with these rules is necessary to ensure the continued legitimacy of the legal profession's self-regulation as well as its overall integrity.

Reprinted with permission from the August 27, 2013 issue of The Legal Intelligencer. © 2013 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.