A former Goodwin Procter Lawyer, Associate Professor Luke M. Scheuer previously held adjunct positions at Boston College Law School, the University of Massachusetts School of Law, and Boston University School of Law where he taught advanced legal skills courses on contract and corporate drafting. Before teaching, he held a judicial clerkship in the U.S. District Court for the District of Massachusetts and also worked as a corporate associate at Goodwin Procter LLP in Boston. The following 2010 article confirms LIT’s belief that the lawyers at Goodwin Law involved in the Burkes case in CFPB v. Ocwen in Fl. should have reported attorney fraud, if they were not the author of the motions filed in that case. They did not do so. This is clear error.
Duty to Report Attorney Misconduct
Luke M Scheuer
Available at: https://works.bepress.com/luke_scheuer/2/
DUTY TO REPORT ATTORNEY MISCONDUCT
BY LUKE SCHEUER1
A. ABA Rule 8.3
“The American legal profession has long recognized the necessity of reporting lawyers’ ethical misconduct.”2 The ABA Model Rules of Professional Conduct (hereafter “MRPC”) contain a mandate to report certain ethical violations to the state bar ethics authorities. MRPC Rule 8.3(a) states “[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.”3 This mandate can apply to lawyers even if they observe misconduct while not themselves practicing law.4 In addition, this mandate requires reporting of misconduct by non-practicing attorneys and attorneys who committed misconduct outside the practice of law if the misconduct raises substantial questions as to the lawyer’s “honesty, trustworthiness or fitness as a lawyer in other respects…”5
Reporting ethical violations by other attorneys has benefits for the profession as a whole but frequently imposes costs for the individuals involved. Benefits to the profession include promoting justice and professionalism, and improving the public image of lawyers.6 But there are also costs to the individuals involved. The lawyer accused of the ethical violation can suffer stigma, malpractice lawsuits and various degrees of punishment including possible disbarment. The lawyer reporting the ethical violation can also suffer consequences including the potential loss of trust and friendship from fellow attorneys and if the reported attorney works within the same firm both the firm and the reporting attorney’s role in the firm can be damaged.
Rule 8.3’s mandate to report ethical violations, and the individual attorney’s desire to not get involved, creates a tension that attorneys need to struggle with. Compliance with Rule 8.3 is made more difficult by some of the ambiguities within the rule itself. Most important of these ambiguities are the degree of knowledge required on the part of the reporting attorney, and the materiality of the violation required before reporting becomes mandatory.
1 Starting in the Fall 2010, the author will be an adjunct professor at Boston College Law School and Boston University School of Law. He previously worked at Goodwin Procter LLP and holds a J.D. from Boston College Law School (2007). The author wishes to thank Bruce Harwood, John Monaghan, Nicole Prairie, and Therese Scheuer for their assistance preparing and editing this article.
2 In re Michael G. Riehlmann, 891 So. 2d 1239, 1246 (La. 2005).
3 Connecticut, Maine, Massachusetts, New Hampshire and Rhode Island (the states represented at this conference)
have all enacted local versions of MRPC Rule 8.3(a) that are substantively similar. Puerto Rico requires compliance with the ABA MRPC itself. Southwire Co. v. Ramallo Bros. Printing, Inc., 2009 WL 4937726, *7 (D.P.R. 2009).
4 Obligation of a Lawyer to Report Professional Misconduct by a Lawyer not Engaged in the Practice of Law, ABA Formal Op. 04-433 (2004).
6 But see Arthur Greenbaum, The Attorney’s Duty to Report Professional Misconduct: A Roadmap for Reform, 16 Geo. J. Legal Ethics 259, 267-68 (1993) (arguing that mandatory reporting of ethical violations might not actually promote the public’s image of the legal profession.)
B. Requisite Degree of Knowledge
Rule 8.3 only requires attorneys to report ethical violations if they “know” of the violation. The degree of knowledge of the violation that the reporting attorney must have is not defined in Rule 8.3. Further many states use the term “knowledge” in their Rule 8.3, based upon an older version of MRPC Rule 8.3 which is an undefined term under the rules. The latest ABA version of MRPC Rule 8.3 has corrected this by using the term “know” in Rule 8.3. To “know” is defined in Rule 1.0 as “actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.” It is necessary for attorneys to exercise judgment as to whether they “know” of the misconduct, however, “it is clear that absolute certainty of ethical misconduct is not required before the reporting requirement is triggered… On the other hand, knowledge requires more than a mere suspicion of ethical misconduct.”7 The Massachusetts Rule 8.3, comment 3 provides further guidance. “A lawyer has knowledge of a violation when he or she possesses supporting evidence such that a reasonable lawyer under the circumstances would form a firm opinion that the conduct in question had more likely occurred than not.” One court has held that a client’s accusation of an ethical violation against another attorney, an accusation denied by the other attorney, was not sufficient by itself to constitute “knowledge” and thus mandate reporting.8 Most cases and ethics opinions have held that the “knowledge” standard is objective, however Rhode Island uses a subjective standard.9 While the Rules of Professional Conduct do not require attorneys to report mere suspicions of ethical violations, there is also no bar against an attorney reporting a good faith suspicion of an ethical violation.
While Rule 8.3 does not impose a duty to investigate and gather evidence when there is not actual knowledge of a violation,10 an attorney cannot deliberately “evade legally significant knowledge” so as not to have to report.11 In addition, as discussed in section F, if the other attorney is within the same firm, there may be a duty to investigate under Rule 5.1.
C. Materiality of Violation
Rule 8.3 does not mandate reporting all violations.12 Instead only violations which raise “substantial questions” regarding the other attorney’s “honesty, trustworthiness or fitness as a lawyer in other respects” must be reported. Determining which violations rise to the level of “substantial questions” requires judgment on the part of the reporting attorney. The comments to MRPC Rule 8.3 state that “[t]his Rule limits the reporting to those offenses that a self-regulating profession must vigorously endeavor to prevent.” Some helpful factors in determining materiality suggested by Rule 8.3 comments and academics include the recency of the conduct, chance of future harm, extent to which the misconduct would otherwise go undetected, and the degree of culpability of the offending lawyer.13 The rule emphasizes ethical violations which raise “substantial questions” regarding the “honesty” or
7 In re Michael G. Riehlmann, 891 So. 2d at 1247.
8 Attorney U v. the Mississippi Bar, 678 So.2d 963, 972 (Miss. 1996).
9 ABA Formal Op. 04-433; Rhode Island Ethi. Advi. Panel Op. 95-41 (1995).
10 In re Michael G. Riehlmann, 891 So. 2d at 1247.
11 Attorney U, 678 So.2d at 971.
12 Under the old Code rule, attorneys were required to report all rule violations without regard to their materiality.
Code of Professional Responsibility, DR 1-103(A). This requirement was replaced by the new standard because it was seen as unrealistic and unenforceable. MRCP Rule 8.3 Comment 3.
13 Supra note 6 at 290.
“trustworthiness” of the other attorney. This implies that crimes of dishonesty such as fraud are particularly important to report. The “fitness as a lawyer in other respects” is a catch all category for those violations which raise substantial questions despite not going to the honesty or trustworthiness of the other attorney.14
Some state rule comments give more specific direction on the materiality issue. Massachusetts Rule 8.3 comment 3 states:
a lawyer must report misconduct that, if proven and without regard to mitigation, would likely result in an order of suspension or disbarment, including misconduct that would constitute a ‘serious crime’ as defined in S.J.C. Rule 4:01, § 12(3). Precedent for determining whether an offense would warrant suspension or disbarment may be found in the Massachusetts Attorney Discipline Reports. Section 12(3) of Rule 4:01 provides that a serious crime is “any felony, and … any lesser crime a necessary element of which … includes interference with the administration of justice, false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or an attempt or a conspiracy, or solicitation of another, to commit [such a crime].” In addition to a conviction of a felony, misappropriation of client funds or perjury before a tribunal are common examples of reportable conduct.
The term “substantial” refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware.
Rule 8.3 does not require reporting of minor violations, nevertheless this does not mean that smaller ethical issues should be ignored. Single minor incidents might be insufficient for discipline. However, cumulatively they can be a cause for concern because they may indicate indifference to legal obligations, that in some cases may not be apparent to any one attorney. The comments to MRPC Rule 8.3 state “[a]n apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover.” While a single missed deadline might not be cause for concern, and might not result in discipline if reported, if the disciplinary authorities learn that an attorney has missed numerous deadlines then this may cause concern as to the attorney’s fitness as a lawyer. So while not required, attorneys should still consider reporting more minor violations. Another, not mutually exclusive, alternative is to privately discuss the violation with the other attorney and make sure they understand what they did wrong and the steps needed to prevent a repetition of such an incident.
If it is unclear whether the ethical violation rises to the level requiring mandatory reporting, attorneys should consider contacting the state bar ethics authority and explain the situation without using names and while complying with Rule 1.615 to receive guidance on whether reporting is required.
D. Conflicting Duties to the Client: Confidentiality
MRPC Rule 8.3(c)16 does not require reporting of confidential information protected by MRPC Rule 1.6.17 When there is conflict between Rules 1.6 and 8.3, attorneys should comply with Rule
14 See Attorney U, 678 So.2d at 972-73 (collecting cases on issue of materiality).
15 MRPC Rule 1.6(b)(4) contains an exception to confidentiality to obtain legal advice on complying with the MRPC.
1.6 unless the client consents to disclosure.18 The comments to the MRPC and many local versions of Rule 8.3 direct lawyers to encourage their client to consent to disclosure where prosecution would not substantially prejudice the client’s interests.19 This discussion “must include the potential adverse impact that disclosure may have on the client, including the effect on the client’s ultimate recovery in a malpractice action, for example.”20 “Good faith decisions by a client to withhold information from the disciplinary process must be respected, but it should be regarded as a violation of Rule 8.3 for a lawyer to manipulate a client into making that choice. If the violation that should be reported is serious enough, the lawyer has at least a moral duty – even putting aside the ethical duty – to urge the client to come forward (or to permit the lawyer to come forward) in the public interest.”21
Most states require client consent prior to disclosure for all “information, whatever its source, relating to the representation.”22 However, in some states, if the knowledge of the misconduct is not protected by the attorney-client privilege (i.e. it was discussed in the presence of a third party) then the client’s directive not to report the misconduct might not protect the attorney from discipline for violating Rule 8.3.23
Connecticut’s Rule 8.3(a) curtails one of the client’s possible motives for not consenting by stating “[a] lawyer may not condition settlement of a civil dispute involving allegations of
16 MRPC Rule 8.3(c) states: “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.” A substantively similar version of Rule 8.3(c) has been adopted by Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico.
17 MRPC 1.6
A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
to prevent reasonably certain death or substantial bodily harm;
to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
to secure legal advice about the lawyer’s compliance with these Rules;
to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or
to comply with other law or a court
18 ABA Formal Op. 04-433.
19 See e.g. MRPC 8.3 Comment 2; Connecticut Rules of Professional Conduct Rule 8.3 Comment 2; Massachusetts Rule of Professional Conduct 8.3 Comment 2.
20 ABA Formal Op. 04-433.
21 Id. quoting Geoffrey C. Hazard Jr. & William Hodes, The Law of Lawyering § 64.8 at 64-18 (3rd Ed. 2002 & Supp. 2003).
22 ABA Formal Op. 04-433; In re Ethics Advisory Panel Opinion No. 92-1, 627 A.2d 317, 322 (R.I. 1993).
23 See In Re Himmel, 533 N.E.2d 790, 794 (Ill. 1989).
improprieties on the part of a lawyer on an agreement that the subject misconduct not be reported…”
E. Self Reporting
Most state Rules of Professional Conduct do not mandate that attorneys self-report ethical violations.24 If the ethical violation rises to the level of criminal activity, mandatory self-reporting would implicate fifth amendment issues. Nevertheless, an attorney may wish to self-report for ethical or tactical reasons. In addition, if two attorneys jointly commit an ethical violation, they would according to Rule 8.3, be required to report each other. This would amount to self-reporting.
F. Firm Reporting
As difficult as it can be to report another attorney’s ethical misconduct it is even more difficult when the other attorney works within the same firm. In these situations the attorney reporting the misconduct might suffer serious financial harm through malpractice claims, loss of business or reputational harm to their shared firm. MRPC Rule 5.1(c) imposes responsibility on partners and supervisory attorneys if they order or know of and do not prevent a violation, or fail to make reasonable efforts to ensure the firm or subordinate attorney is complying with the rules.25 As a consequence, there can be a duty to investigate mere suspicions of violations under Rule 5.1(b) which states “[a] lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.” In addition, Rule 5.1(a) imposes responsibility on a firm to ensure compliance with the rules of professional conduct.26 “The precise nature of the measures a firm must implement under Rule 5.1 necessarily will depend on the size of the firm, the experience of its members, and the nature and frequency of the ethical problems it encounters.”27 However a common measure is to designate an “ethics counsel”, an attorney that members of the firm can direct their ethical concerns to.28
Reporting the misconduct of another attorney within the same firm can have negative effects on one’s position within the firm. In Bohatch v. Butler & Binion, the Texas Supreme Court held that a firm could retaliate by expelling a partner who made a good faith, but ultimately incorrect, internal report of
24 But see Opinion 2007-1, OH Adv. Op. 2007-1, *8 (Ohio Bd.Com.Griev.Disp. February 9, 2007) (finding that an attorney does have a duty to self-report misconduct that raises a question as to honesty, trustworthiness, or fitness as a lawyer.)
25 MRPC Rule 5.1 (c)
A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if:
the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial
(Connecticut, Maine, Massachusetts, New Hampshire, and Puerto Rico have adopted similar local versions of Rule 5.1.)
26 Rule 5.1 (a) “A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.” For a discussion of how to promote compliance with Rule 5.1 see Hon. Henry Saad, Practical Ways to Improve the Ethical Behavior of Lawyers, 78 Mich. B. J. 982 (1999).
27 In-House Consulting on Ethical Issues, ABA Formal Op. 08-453 (2008).
28 See id. for a discussion of the role of ethics counsel. Note that Rule 1.6 provides an exception from client confidentiality for the purpose of consulting with an ethics counsel.
overbilling about another partner within the firm.29 The court refused to recognize a whistleblower exception to a partnerships’ right to expel partners.30 “The fact that the ethical duty to report may create an irreparable schism between partners neither excuses failure to report nor transforms expulsion as a means of resolving that schism into a tort.”31
G. Failure to Report
There are few examples of attorneys facing discipline for violating Rule 8.3 by failing to report another attorney’s ethical misconduct. The lead case in this area is In re Himmel.32 The Illinois Supreme Court held that Himmel, an attorney with no prior record of complaints, should be suspended for one year for failing to report the misconduct of Casey, another attorney who previously represented one of Himmel’s clients. While representing the client, Casey negotiated a $35,000 settlement for her personal injury case, but did not distribute to the client her share of the proceeds. The client hired Himmel to collect the money from Casey. Himmel negotiated a $75,000 settlement for the client in which the client agreed not to initiate any criminal, civil or attorney disciplinary action against Casey. The client specifically instructed Himmel not to take any action against Casey other than to collect the money owed to her.
After Casey breached the settlement, Himmel filed suit and was awarded $100,000. The court found that Himmel had violated his duty to report Casey’s conduct under Rule 8.3. In addition, the court stated in dicta that even if the client had filed a complaint of attorney misconduct, this would not relieve the duty of attorneys who learn of it to also report it. Finally the court found that the client’s direction not to report the misconduct does not trump the attorney’s duty to report where, as here, the information was not privileged.33 The court found that Himmel’s financial interest in not reporting was an aggravating factor in determining whether Himmel had violated 8.3.
In addition, while Rule 8.3 does not set a deadline for mandatory reporting, courts have held that once an attorney has determined that reporting is required, the report should be made promptly.34
Arthur F. Greenbaum, The Attorney’s Duty to Report Professional Misconduct: A Roadmap for Reform, 16 Geo. J. Legal Ethics 269 (2003).
Alex B. Long, Whistleblowing Attorneys and Ethical Infractures, 68 Md. L. Rev. 786 (2009).
Hon. Henry Saad, Practical Ways to Improve the Ethical Behavior of Lawyers, 78 Mich. B. J. 982 (1999).
29 977 S.W.2d 543 (Tex. 1998).
30 Id. at 546.
31 Id. at 547. See generally Alex B. Long, Whistleblowing Attorneys and Ethical Infractures, 68 Md. L. Rev. 786 (2009).
32 533 N.E.2d 790 (Ill. 1989).
33 Most states have not followed Himmel because under their version of Rule 8.3 attorneys must have client consent before revealing any confidential information, not just information protected by the attorney client privilege.
34 In re Michael G. Riehlmann, 891 So. 2d at 1247-48 (waiting five years to report another attorney’s misconduct was a violation of Rule 8.3(a)).
Motion to Disqualify @goodwinlaw – the transcript where Judge Bucklo (Ill.) is practically speechless at the audacity of this unethical move by Goodwin. Imagine you getting that from words, an audio would probably blow people away..sounds like a plan, what do y’all think Tom? pic.twitter.com/MS4XyqBrGZ
— LawsInTexas (@lawsintexasusa) June 7, 2020
Meet Mrs. Craven, Lyin’ Lawyer, Goodwin Procter @BostonGlobe @WCVB @Harvard @BOSTON_WATER @Suffolk_Law @checkbox @MassGovernor @marty_walsh @MABizRoundtable @UMassMedical @tuftsmedicalctr @MassGov @babson @MASchoolsK12 @Mass_SBA @MassBar @NUSL @UMassAmherst pic.twitter.com/YrNODmOFh2
— LawsInTexas (@lawsintexasusa) June 1, 2020
In re Himmel, 125 Ill. 2d 531 (Ill. 1988)
No. 65946. Respondent suspended.
Opinion filed September 22, 1988. Rehearing denied January 30, 1989.
William F. Moran III, of Springfield, for the Administrator of the Attorney Registration and Disciplinary Commission.
James H. Himmel, of Palos Heights, respondent pro se.
George B. Collins, of Collins Bargione, of Chicago, for respondent.
This is a disciplinary proceeding against respondent, James H. Himmel. On January 22, 1986, the Administrator of the Attorney Registration and Disciplinary Commission (the Commission) filed a complaint with the Hearing Board, alleging that respondent violated Rule 1-103(a) of the Code of Professional Responsibility (the Code) (107 Ill.2d R. 1-103(a)) by failing to disclose to the Commission information concerning attorney misconduct. On October 15, 1986, the Hearing Board found that respondent had violated the rule and recommended that respondent be reprimanded. The Administrator filed exceptions with the Review Board. The Review Board issued its report on July 9, 1987, finding that respondent had not violated a disciplinary rule and recommending dismissal of the complaint. We granted the Administrator’s petition for leave to file exceptions to the Review Board’s report and recommendation. 107 Ill.2d R. 753(e)(6).
We will briefly review the facts, which essentially involve three individuals: respondent, James H. Himmel, licensed to practice law in Illinois on November 6, 1975; his client, Tammy Forsberg, formerly known as Tammy McEathron; and her former attorney, John R. Casey.
The complaint alleges that respondent had knowledge of John Casey’s conversion of Forsberg’s funds and respondent failed to inform the Commission of this misconduct. The facts are as follows.
In October 1978, Tammy Forsberg was injured in a motorcycle accident. In June 1980, she retained John R. Casey to represent her in any personal injury or property damage claim resulting from the accident. Sometime in 1981, Casey negotiated a settlement of $35,000 on Forsberg’s behalf. Pursuant to an agreement between Forsberg and Casey, one-third of any monies received would be paid to Casey as his attorney fee.
In March 1981, Casey received the $35,000 settlement check, endorsed it, and deposited the check into his client trust fund account. Subsequently, Casey converted the funds.
Between 1981 and 1983, Forsberg unsuccessfully attempted to collect her $23,233.34 share of the settlement proceeds. In March 1983, Forsberg retained respondent to collect her money and agreed to pay him one-third of any funds recovered above $23,233.34.
Respondent investigated the matter and discovered that Casey had misappropriated the settlement funds. In April 1983, respondent drafted an agreement in which Casey would pay Forsberg $75,000 in settlement of any claim she might have against him for the misappropriated funds. By the terms of the agreement, Forsberg agreed not to initiate any criminal, civil, or attorney disciplinary action against Casey. This agreement was executed on April 11, 1983. Respondent stood to gain $17,000 or more if Casey honored the agreement. In February 1985, respondent filed suit against Casey for breaching the agreement, and a $100,000 judgment was entered against Casey. If Casey had satisfied the judgment, respondent’s share would have been approximately $25,588.
The complaint stated that at no time did respondent inform the Commission of Casey’s misconduct. According to the Administrator, respondent’s first contact with the Commission was in response to the Commission’s inquiry regarding the lawsuit against Casey.
In April 1985, the Administrator filed a petition to have Casey suspended from practicing law because of his conversion of client funds and his conduct involving moral turpitude in matters unrelated to Forsberg’s claim. Casey was subsequently disbarred on consent on November 5, 1985.
A hearing on the complaint against the present respondent was held before the Hearing Board of the Commission on June 3, 1986. In its report, the Hearing Board noted that the evidence was not in dispute. The evidence supported the allegations in the complaint and provided additional facts as follows.
Before retaining respondent, Forsberg collected $5,000 from Casey. After being retained, respondent made inquiries regarding Casey’s conversion, contacting the insurance company that issued the settlement check, its attorney, Forsberg, her mother, her fiance and Casey. Forsberg told respondent that she simply wanted her money back and specifically instructed respondent to take no other action. Because of respondent’s efforts, Forsberg collected another $10,400 from Casey. Respondent received no fee in this case.
The Hearing Board found that respondent received unprivileged information that Casey converted Forsberg’s funds, and that respondent failed to relate the information to the Commission in violation of Rule 1-103(a) of the Code. The Hearing Board noted, however, that respondent had been practicing law for 11 years, had no prior record of any complaints, obtained as good a result as could be expected in the case, and requested no fee for recovering the $23,233.34. Accordingly, the Hearing Board recommended a private reprimand.
Upon the Administrator’s exceptions to the Hearing Board’s recommendation, the Review Board reviewed the matter. The Review Board’s report stated that the client had contacted the Commission prior to retaining respondent and, therefore, the Commission did have knowledge of the alleged misconduct. Further, the Review Board noted that respondent respected the client’s wishes regarding not pursuing a claim with the Commission. Accordingly, the Review Board recommended that the complaint be dismissed.
The Administrator now raises three issues for review: (1) whether the Review Board erred in concluding that respondent’s client had informed the Commission of misconduct by her former attorney; (2) whether the Review Board erred in concluding that respondent had not violated Rule 1-103(a); and (3) whether the proven misconduct warrants at least a censure.
As to the first issue, the Administrator contends that the Review Board erred in finding that Forsberg informed the Commission of Casey’s misconduct prior to retaining respondent. In support of this contention, the Administrator cites to testimony in the record showing that while Forsberg contacted the Commission and received a complaint form, she did not fill out the form, return it, advise the Commission of the facts, or name whom she wished to complain about. The Administrator further contends that even if Forsberg had reported Casey’s misconduct to the Commission, such an action would not have relieved respondent of his duty to report under Rule 1-103(a). Additionally, the Administrator argues that no evidence exists to prove that respondent failed to report because he assumed that Forsberg had already reported the matter.
Respondent argues that the record shows that Forsberg did contact the Commission and was forwarded a complaint form, and that the record is not clear that Forsberg failed to disclose Casey’s name to the Commission. Respondent also argues that Forsberg directed respondent not to pursue the claim against Casey, a claim she had already begun to pursue.
We begin our analysis by examining whether a client’s complaint of attorney misconduct to the Commission can be a defense to an attorney’s failure to report the same misconduct. Respondent offers no authority for such a defense and our research has disclosed none. Common sense would dictate that if a lawyer has a duty under the Code, the actions of a client would not relieve the attorney of his own duty. Accordingly, while the parties dispute whether or not respondent’s client informed the Commission, that question is irrelevant to our inquiry in this case. We have held that the canons of ethics in the Code constitute a safe guide for professional conduct, and attorneys may be disciplined for not observing them. ( In re Yamaguchi (1987), 118 Ill.2d 417, 427, citing In re Taylor (1977), 66 Ill.2d 567.) The question is, then, whether or not respondent violated the Code, not whether Forsberg informed the Commission of Casey’s misconduct.
As to respondent’s argument that he did not report Casey’s misconduct because his client directed him not to do so, we again note respondent’s failure to suggest any legal support for such a defense. A lawyer, as an officer of the court, is duty-bound to uphold the rules in the Code. The title of Canon 1 (107 Ill.2d Canon 1) reflects this obligation: “A lawyer should assist in maintaining the integrity and competence of the legal profession.” A lawyer may not choose to circumvent the rules by simply asserting that his client asked him to do so.
As to the second issue, the Administrator argues that the Review Board erred in concluding that respondent did not violate Rule 1-103(a). The Administrator urges acceptance of the Hearing Board’s finding that respondent had unprivileged knowledge of Casey’s conversion of client funds, and that respondent failed to disclose that information to the Commission. The Administrator states that respondent’s knowledge of Casey’s conversion of client funds was knowledge of illegal conduct involving moral turpitude under In re Stillo (1977), 68 Ill.2d 49, 54. Further, the Administrator argues that the information respondent received was not privileged under the definition of privileged information articulated by this court in People v. Adam (1972), 51 Ill.2d 46, 48, cert. denied (1972), 409 U.S. 948, 34 L.Ed.2d 218, 93 S.Ct. 289. Therefore, the Administrator concludes, respondent violated his ethical duty to report misconduct under Rule 1-103(a). According to the Administrator, failure to disclose the information deprived the Commission of evidence of serious misconduct, evidence that would have assisted in the Commission’s investigation of Casey.
Respondent contends that the information was privileged information received from his client, Forsberg, and therefore he was under no obligation to disclose the matter to the Commission. Respondent argues that his failure to report Casey’s misconduct was motivated by his respect for his client’s wishes, not by his desire for financial gain. To support this assertion, respondent notes that his fee agreement with Forsberg was contingent upon her first receiving all the money Casey originally owed her. Further, respondent states that he has received no fee for his representation of Forsberg.
Our analysis of this issue begins with a reading of the applicable disciplinary rules. Rule 1-103(a) of the Code states:
“(a) A lawyer possessing unprivileged knowledge of a violation of Rule 1-102(a)(3) or (4) shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.” 107 Ill.2d R. 1-103(a).
Rule 1-102 of the Code states:
“(a) A lawyer shall not
(1) violate a disciplinary rule;
(2) circumvent a disciplinary rule through actions of another;
(3) engage in illegal conduct involving moral turpitude;
(4) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; or
(5) engage in conduct that is prejudicial to the administration of justice.” 107 Ill.2d R. 1-102.
These rules essentially track the language of the American Bar Association Model Code of Professional Responsibility, upon which the Illinois Code was modeled. (See 107 Ill.2d Rules art. VIII, Committee Commentary, at 604.) Therefore, we find instructive the opinion of the American Bar Association’s Committee on Ethics and Professional Responsibility that discusses the Model Code’s Disciplinary Rule 1-103 (Model Code of Professional Responsibility DR 1-103 (1979)). Informal Opinion 1210 states that under DR 1-103(a) it is the duty of a lawyer to report to the proper tribunal or authority any unprivileged knowledge of a lawyer’s perpetration of any misconduct listed in Disciplinary Rule 1-102. (ABA Committee on Ethics Professional Responsibility, Informal Op. 1210 (1972) (hereinafter Informal Op. 1210).) The opinion states that “the Code of Professional Responsibility through its Disciplinary Rules necessarily deals directly with reporting of lawyer misconduct or misconduct of others directly observed in the legal practice or the administration of justice.” Informal Op. 1210, at 447.
This court has also emphasized the importance of a lawyer’s duty to report misconduct. In the case In re Anglin (1988), 122 Ill.2d 531, because of the petitioner’s refusal to answer questions regarding his knowledge of other persons’ misconduct, we denied a petition for reinstatement to the roll of attorneys licensed to practice in Illinois. We stated, “Under Disciplinary Rule 1-103 a lawyer has the duty to report the misconduct of other lawyers. (107 Ill.2d Rules 1-103, 1-102(a)(3), (a)(4).) Petitioner’s belief in a code of silence indicates to us that he is not at present fully rehabilitated or fit to practice law.” ( Anglin, 122 Ill.2d at 539.) Thus, if the present respondent’s conduct did violate the rule on reporting misconduct, imposition of discipline for such a breach of duty is mandated.
The question whether the information that respondent possessed was protected by the attorney-client privilege, and thus exempt from the reporting rule, requires application of this court’s definition of the privilege. We have stated that “`(1) [w]here legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.'” ( People v. Adam (1972), 51 Ill.2d 46, 48 (quoting 8 J. Wigmore, Evidence § 2292 (McNaughton rev. ed. 1961)), cert. denied (1972), 409 U.S. 948, 34 L.Ed.2d 218, 93 S.Ct. 289.) We agree with the Administrator’s argument that the communication regarding Casey’s conduct does not meet this definition. The record does not suggest that this information was communicated by Forsberg to the respondent in confidence. We have held that information voluntarily disclosed by a client to an attorney, in the presence of third parties who are not agents of the client or attorney, is not privileged information. ( People v. Williams (1983), 97 Ill.2d 252, 295, cert. denied (1984), 466 U.S. 981, 80 L.Ed.2d 836, 104 S.Ct. 2364.) In this case, Forsberg discussed the matter with respondent at various times while her mother and her fiance were present. Consequently, unless the mother and fiance were agents of respondent’s client, the information communicated was not privileged. Moreover, we have also stated that matters intended by a client for disclosure by the client’s attorney to third parties, who are not agents of either the client or the attorney, are not privileged. ( People v. Werhollick (1970), 45 Ill.2d 459, 462.) The record shows that respondent, with Forsberg’s consent, discussed Casey’s conversion of her funds with the insurance company involved, the insurance company’s lawyer, and with Casey himself. Thus, under Werhollick and probably Williams, the information was not privileged.
Though respondent repeatedly asserts that his failure to report was motivated not by financial gain but by the request of his client, we do not deem such an argument relevant in this case. This court has stated that discipline may be appropriate even if no dishonest motive for the misconduct exists. ( In re Weinberg (1988), 119 Ill.2d 309, 315; In re Clayter (1980), 78 Ill.2d 276, 283.) In addition, we have held that client approval of an attorney’s action does not immunize an attorney from disciplinary action. ( In re Thompson (1963), 30 Ill.2d 560, 569; People ex rel. Scholes v. Keithley (1906), 225 Ill. 30, 41.) We have already dealt with, and dismissed, respondent’s assertion that his conduct is acceptable because he was acting pursuant to his client’s directions.
Respondent does not argue that Casey’s conversion of Forsberg’s funds was not illegal conduct involving moral turpitude under Rule 1-102(a)(3) or conduct involving dishonesty, fraud, deceit, or misrepresentation under Rule 1-102(a)(4). (107 Ill.2d Rules 1-102(a)(3), (a)(4).) It is clear that conversion of client funds is, indeed, conduct involving moral turpitude. ( In re Levin (1987), 118 Ill.2d 77, 88; In re Stillo (1977), 68 Ill.2d 49, 54.) We conclude, then, that respondent possessed unprivileged knowledge of Casey’s conversion of client funds, which is illegal conduct involving moral turpitude, and that respondent failed in his duty to report such misconduct to the Commission. Because no defense exists, we agree with the Hearing Board’s finding that respondent has violated Rule 1-103(a) and must be disciplined.
The third issue concerns the appropriate quantum of discipline to be imposed in this case. The Administrator contends that respondent’s misconduct warrants at least a censure, although the Hearing Board recommended a private reprimand and the Review Board recommended dismissal of the matter entirely. In support of the request for a greater quantum of discipline, the Administrator cites to the purposes of attorney discipline, which include maintaining the integrity of the legal profession and safeguarding the administration of justice. The Administrator argues that these purposes will not be served unless respondent is publicly disciplined so that the profession will be on notice that a violation of Rule 1-103(a) will not be tolerated. The Administrator argues that a more severe sanction is necessary because respondent deprived the Commission of evidence of another attorney’s conversion and thereby interfered with the Commission’s investigative function under Supreme Court Rule 752 (107 Ill.2d R. 752). Citing to the Rule 774 petition (107 Ill.2d R. 774) filed against Casey, the Administrator notes that Casey converted many clients’ funds after respondent’s duty to report Casey arose. The Administrator also argues that both respondent and his client behaved in contravention of the Criminal Code’s prohibition against compounding a crime by agreeing with Casey not to report him, in exchange for settlement funds.
In his defense, respondent reiterates his arguments that he was not motivated by desire for financial gain. He also states that Forsberg was pleased with his performance on her behalf. According to respondent, his failure to report was a “judgment call” which resulted positively in Forsberg’s regaining some of her funds from Casey.
In evaluating the proper quantum of discipline to impose, we note that it is this court’s responsibility to determine appropriate sanctions in attorney disciplinary cases. ( In re Levin (1987), 118 Ill. 77, 87, citing In re Hopper (1981), 85 Ill.2d 318, 323.) We have stated that while recommendations of the Boards are to be considered, this court ultimately bears responsibility for deciding an appropriate sanction. ( In re Weinberg (1988), 119 Ill.2d 309, 314, citing In re Winn (1984), 103 Ill.2d 334, 337.) We reiterate our statement that “`[w]hen determining the nature and extent of discipline to be imposed, the respondent’s actions must be viewed in relationship “to the underlying purposes of our disciplinary process, which purposes are to maintain the integrity of the legal profession, to protect the administration of justice from reproach, and to safeguard the public.” ( In re LaPinska (1978), 72 Ill.2d 461, 473.)'” In re Levin (1987), 118 Ill.2d 77, 87, quoting In re Crisel (1984), 101 Ill.2d 332, 343.
Bearing these principles in mind, we agree with the Administrator that public discipline is necessary in this case to carry out the purposes of attorney discipline. While we have considered the Boards’ recommendations in this matter, we cannot agree with the Review Board that respondent’s conduct served to rectify a wrong and did not injure the bar, the public, or the administration of justice. Though we agree with the Hearing Board’s assessment that respondent violated Rule 1-103 of the Code, we do not agree that the facts warrant only a private reprimand. As previously stated, the evidence proved that respondent possessed unprivileged knowledge of Casey’s conversion of client funds, yet respondent did not report Casey’s misconduct.
This failure to report resulted in interference with the Commission’s investigation of Casey, and thus with the administration of justice. Perhaps some members of the public would have been spared from Casey’s misconduct had respondent reported the information as soon as he knew of Casey’s conversions of client funds. We are particularly disturbed by the fact that respondent chose to draft a settlement agreement with Casey rather than report his misconduct. As the Administrator has stated, by this conduct, both respondent and his client ran afoul of the Criminal Code’s prohibition against compounding a crime, which states in section 32-1:
“(a) A person compounds a crime when he receives or offers to another any consideration for a promise not to prosecute or aid in the prosecution of an offender.
(b) Sentence. Compounding a crime is a petty offense.” (Ill. Rev. Stat. 1987, ch. 38, par. 32-1.)
Both respondent and his client stood to gain financially by agreeing not to prosecute or report Casey for conversion. According to the settlement agreement, respondent would have received $17,000 or more as his fee. If Casey had satisfied the judgment entered against him for failure to honor the settlement agreement, respondent would have collected approximately $25,588.
We have held that fairness dictates consideration of mitigating factors in disciplinary cases. ( In re Yamaguchi (1987), 118 Ill.2d 417, 428, citing In re Neff (1980), 83 Ill.2d 20.) Therefore, we do consider the fact that Forsberg recovered $10,400 through respondent’s services, that respondent has practiced law for 11 years with no record of complaints, and that he requested no fee for minimum collection of Forsberg’s funds. However, these considerations do not outweigh the serious nature of respondent’s failure to report Casey, the resulting interference with the Commission’s investigation of Casey, and respondent’s ill-advised choice to settle with Casey rather than report his misconduct.
Accordingly, it is ordered that respondent be suspended from the practice of law for one year.
In re Riehlmann, 891 So. 2d 1239 (La. 2005)
January 19, 2005.
Charles Bennett Plattsmier, Chief Disciplinary Counsel, for Applicant.
Brett J. Prendergast, Michael G. Riehlmann, New Orleans, for Respondent.
Robert Stephen Glass, New Orleans, Michael L. Banks, for John Thompson, Amicus Curiae.
ATTORNEY DISCIPLINARY PROCEEDINGS.
This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Michael G. Riehlmann, an attorney licensed to practice law in Louisiana.
Respondent is a criminal defense attorney who was formerly employed as an Assistant District Attorney in the Orleans Parish District Attorney’s Office. One evening in April 1994, respondent met his close friend and law school classmate, Gerry Deegan, at a bar near the Orleans Parish Criminal District Court. Like respondent, Mr. Deegan had been a prosecutor in the Orleans Parish District Attorney’s Office before he “switched sides” in 1987. During their conversation in the bar, Mr. Deegan told respondent that he had that day learned he was dying of colon cancer. In the same conversation, Mr. Deegan confided to respondent that he had suppressed exculpatory blood evidence in a criminal case he prosecuted while at the District Attorney’s Office. Respondent recalls that he was “surprised” and “shocked” by his friend’s revelation, and that he urged Mr. Deegan to “remedy” the situation. It is undisputed that respondent did not report Mr. Deegan’s disclosure to anyone at the time it was made. Mr. Deegan died in July 1994, having done nothing to “remedy” the situation of which he had spoken in the bar.
Nearly five years after Mr. Deegan’s death, one of the defendants whom he had prosecuted in a 1985 armed robbery case was set to be executed by lethal injection on May 20, 1999. In April 1999, the lawyers for the defendant, John Thompson, discovered a crime lab report which contained the results of tests performed on a piece of pants leg and a tennis shoe that were stained with the perpetrator’s blood during a scuffle with the victim of the robbery attempt. The crime lab report concluded that the robber had Type “B” blood. Because Mr. Thompson has Type “O” blood, the crime lab report proved he could not have committed the robbery; nevertheless, neither the crime lab report nor the blood-stained physical evidence had been disclosed to Mr. Thompson’s defense counsel prior to or during trial. Respondent claims that when he heard about the inquiry of Mr. Thompson’s lawyers, he immediately realized that this was the case to which Mr. Deegan had referred in their April 1994 conversation in the bar. On April 27, 1999, respondent executed an affidavit for Mr. Thompson in which he attested that during the 1994 conversation, “the late Gerry Deegan said to me that he had intentionally suppressed blood evidence in the armed robbery trial of John Thompson that in some way exculpated the defendant.”
In May 1999, respondent reported Mr. Deegan’s misconduct to the ODC. In June 1999, respondent testified in a hearing on a motion for new trial in Mr. Thompson’s armed robbery case. During the hearing, respondent testified that Mr. Deegan had told him that he “suppressed exculpatory evidence that was blood evidence, that seemed to have excluded Mr. Thompson as the perpetrator of an armed robbery.” Respondent also admitted that he “should have reported” Mr. Deegan’s misconduct, and that while he ultimately did so, “I should have reported it sooner, I guess.”
On September 30, 1999, respondent gave a sworn statement to the ODC in which he was asked why he did not report Mr. Deegan’s disclosure to anyone at the time it was made. Respondent replied:
I think that under ordinary circumstances, I would have. I really honestly think I’m a very good person. And I think I do the right thing whenever I’m given the opportunity to choose. This was unquestionably the most difficult time of my life. Gerry, who was like a brother to me, was dying. And that was, to say distracting would be quite an understatement. I’d also left my wife just a few months before, with three kids, and was under the care of a psychiatrist, taking antidepressants. My youngest son was then about two and had just recently undergone open-heart surgery. I had a lot on my plate at the time. A great deal of it of my own making; there’s no question about it. But, nonetheless, I was very, very distracted, and I simply did not give it the important consideration that it deserved. But it was a very trying time for me. And that’s the only explanation I have, because, otherwise, I would have reported it immediately had I been in a better frame of mind. [emphasis added]
DISCIPLINARY PROCEEDINGS Formal Charges
On January 4, 2001, the ODC filed one count of formal charges against respondent, alleging that his failure to report his unprivileged knowledge of Mr. Deegan’s prosecutorial misconduct violated Rules 8.3(a) (reporting professional misconduct), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct. The ODC subsequently amended the formal charges to delete the alleged violation of Rule 8.4(c).
On March 5, 2002, respondent answered the amended formal charges and admitted some of the factual allegations therein, but denied that his conduct violated the Rules of Professional Conduct. Specifically, respondent asserted that Rule 8.3(a) “merely requires that an attorney possessing unprivileged knowledge of a violation of this Code shall report such knowledge to the authority empowered to investigate such acts. It is undisputed that respondent did report his knowledge of Deegan’s statements to Thompson’s attorneys, with the clear understanding that this information would be reported to the District Attorney and the Court, undeniably authorities empowered to investigate Deegan’s conduct.”
When this matter proceeded to a formal hearing before the committee, respondent testified that his best recollection of his conversation with Mr. Deegan in 1994 “is that he told me that he did not turn over evidence to his opponents that might have exculpated the defendant.” Nevertheless, when asked whether he recognized during the barroom conversation that Mr. Deegan had violated his ethical duties, respondent replied, “Well, certainly.” Respondent admitted that he gave the conversation no further thought after he left the bar because he was “distracted” by his own personal problems.
Hearing Committee Recommendation
In its report filed with the disciplinary board, the hearing committee concluded that respondent did not violate Rule 8.3(a), but that he should be publicly reprimanded for his violation of Rule 8.4(d).
Considering the evidence presented at the hearing, the committee made a factual finding that during the 1994 barroom conversation, Mr. Deegan explained to respondent that he did not turn over evidence in a case that might have exculpated a defendant, but “equivocated on whether the evidence proved the innocence of a defendant.” Moreover, the committee found there is no clear and convincing evidence that Mr. Deegan identified John Thompson by name in the disclosure to respondent in 1994. The committee believed respondent’s testimony that he did not draw a connection between Mr. Deegan’s 1994 statements and the Thompson case until 1999, when he heard about the inquiry of Mr. Thompson’s lawyers.
Based on its factual findings, the committee found that respondent did not violate Rule 8.3(a) because he did not have “knowledge of a violation” that obligated him to report Mr. Deegan to the ODC or to any other authority. The committee pointed out that it believed respondent’s testimony that Mr. Deegan made equivocal statements in 1994 that did not rise to the level of a “confession” that Deegan had actually suppressed the crime lab report nine years earlier. The committee found Mr. Deegan qualified his statement that the evidence “might” have exculpated the defendant, and furthermore, agreed that if the evidence did not tend to negate the defendant’s guilt, Mr. Deegan would have had no obligation to turn over that evidence under Brady. Consequently, the committee determined that respondent would have had no violation to report. The committee found Mr. Deegan’s statements at most suggested a potential violation of the ethical rules, but the committee declined to construe Rule 8.3(a) to require a lawyer to report a potential violation of an ethical rule by another lawyer.
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), requires the State to disclose to the defendant in a criminal case evidence that is favorable to the accused and is material to guilt or punishment.
Although the committee did not find that respondent violated Rule 8.3(a), the committee found he violated Rule 8.4(d), which imposes a “broader obligation to ensure that justice is fairly administered,” by his “complete inaction after the barroom disclosure.” The committee found respondent’s conversation with Mr. Deegan “was of sufficient importance that not pursuing Deegan for a disclosure or to rectify the situation, failing to investigate further, and ultimately not taking any affirmative action for five years constituted conduct that hindered the administration of justice.” The committee determined the baseline sanction for such conduct by respondent is a reprimand.
As aggravating factors, the committee recognized respondent’s experience in the practice of law (admitted 1983) and the vulnerability of the victim, Mr. Thompson. In mitigation, the committee acknowledged the absence of a prior disciplinary record, absence of a dishonest or selfish motive, personal or emotional problems (including the terminal colon cancer of his best friend, Mr. Deegan; marital problems; and the health problems both he and his son were experiencing), timely good faith effort to rectify the consequences of Mr. Deegan’s misconduct, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceeding, character and reputation, and remorse.
In light of the mitigating factors present, and finding that a suspension would serve no useful purpose in this case, the committee recommended the imposition of a public reprimand.
Both respondent and the ODC filed objections to the hearing committee’s recommendation.
Disciplinary Board Recommendation
The disciplinary board adopted the hearing committee’s factual findings but rejected its application of Rule 8.3(a) of the Rules of Professional Conduct. The board determined that a finding of a violation of Rule 8.3(a) requires clear and convincing evidence that an attorney (1) possessed unprivileged knowledge of an ethical violation and (2) failed to report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation. Concerning the knowledge requirement, the board considered various legal authorities interpreting both Louisiana Rule 8.3(a) and Model Rule 8.3(a), and determined that a lawyer’s duty to report professional misconduct is triggered when, under the circumstances, a reasonable lawyer would have “a firm opinion that the conduct in question more likely than not occurred.” See Attorney U v. Mississippi Bar, 678 So.2d 963 (Miss. 1996); RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 5 cmt. I (2000). The board explained that the requisite knowledge under Rule 8.3(a) is “more than a mere suspicion, but less than absolute or moral certainty.”
Employing this analysis, the board concluded the committee erred in its finding that respondent had no duty to report because Mr. Deegan’s statements were equivocal. The board found respondent must have understood from his 1994 conversation with Mr. Deegan that Mr. Deegan had suppressed Brady evidence:
If Respondent did not understand from his conversation with Deegan that Deegan has suppressed evidence that he was obligated to produce, why was Respondent shocked and surprised? Why did Respondent tell Deegan that what he had done was “not right” and that Deegan had to “rectify” the situation? Respondent never changed his testimony in this respect. Obviously, if Respondent understood from his conversation with Deegan that Deegan had done nothing wrong, there would have been no occasion for Respondent to say that it was “not right” or that Deegan had to “rectify” what he had done. The Committee makes no attempt to explain these circumstances which are wholly inconsistent with the Committee’s theory. This uncontradicted circumstantial evidence cannot be ignored. Indeed, if Deegan believed he had done nothing wrong, why did Deegan even bother to bring the matter up nearly ten (10) years after Thompson was convicted? More importantly, why did he bring it up in the same conversation that he disclosed to Respondent that he (Deegan) had terminal colon cancer?
The board concluded that a reasonable lawyer under the circumstances would have formed a firm opinion that Mr. Deegan had wrongfully failed to disclose the blood evidence, and that respondent did in fact form such an opinion because he advised Mr. Deegan that what he (Deegan) did was “not right” and that he (Deegan) had to “rectify” the situation. Accordingly, the board found respondent had sufficient knowledge of misconduct by Mr. Deegan to trigger a duty to report the misconduct to the disciplinary authorities.
The board then turned to a discussion of whether respondent’s failure to report Mr. Deegan’s misconduct for more than five years after learning of it constituted a failure to report under Rule 8.3(a). The board acknowledged that Rule 8.3(a) does not provide any specific time limit or period within which the misconduct must be reported. Nevertheless, the board reasoned that Rule 8.3(a) serves no useful purpose unless it is read to require reporting to an appropriate authority within a reasonable time under the circumstances. See United States v. Cantor, 897 F.Supp. 110 (S.D.N.Y. 1995); Douglas R. Richmond, The Duty to Report Professional Misconduct: A Practical Analysis of Lawyer Self-Regulation, 12 GEO. J. LEGAL ETHICS 175, 200 (1999). Therefore, absent special circumstances, the board determined that a lawyer must report his knowledge of misconduct “promptly.” Applying these principles to the instant case, the board determined respondent’s disclosure in 1999 of misconduct he discovered in 1994 was not timely and did not satisfy the requirements of Rule 8.3(a).
The board also found that respondent’s conduct violated Rule 8.4(d) because his inactivity following Mr. Deegan’s disclosure was prejudicial to the administration of justice.
The board found respondent knowingly violated a duty owed to the profession, and that his actions resulted in both actual and potential injury to Mr. Thompson. The board noted that if respondent had taken further action in 1994, when Mr. Deegan made his confession, Mr. Thompson’s innocence in connection with the armed robbery charge may have been established sooner. The board also observed that negative publicity attached to respondent’s actions, thereby causing harm to the legal profession. The board determined the baseline sanction for respondent’s conduct is a suspension from the practice of law.
See Standard 7.2 of the ABA’s Standards for Imposing Lawyer Sanctions, which suggests that a suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system.
The board adopted the aggravating and mitigating factors cited by the hearing committee, except that the board refused to credit respondent with the mitigating factor of making a timely good faith effort to rectify the consequences of Mr. Deegan’s misconduct.
Considering the prior jurisprudence, the board determined that some period of suspension is appropriate for respondent’s conduct. In light of the significant mitigating factors in this matter, the board recommended that respondent be suspended from the practice of law for six months. One board member dissented and would recommend a suspension of at least one year and one day.
The cases cited by ODC and the committee include In re: Leitz, 98-3014 (La. 1/8/99), 728 So.2d 835 (attorney suspended for sixty days for failing to supervise law partner or law firm’s trust account, which permitted partner to convert third-party funds); In re: Toups, 00-0634 (La. 11/28/00), 773 So.2d 709 (attorney publicly reprimanded for failing to report another attorney’s unethical conduct); and In re Himmel, 125 Ill.2d 531, 127 Ill.Dec. 708, 533 N.E.2d 790 (1988) (attorney suspended for one year for failing to report another attorney’s conversion of client’s settlement funds). In addition, the board considered In re: Brigandi, 02-2873 (La. 4/9/03), 843 So.2d 1083 (attorney suspended for two years, with all but six months deferred, for misconduct including failing to report another attorney’s solicitation activities).
Both respondent and the ODC filed objections to the disciplinary board’s recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).
In this matter we are presented for the first time with an opportunity to delineate the scope of an attorney’s duty under Rule 8.3 to report the professional misconduct of a fellow member of the bar. Therefore, we begin our discussion with a few observations relating to the rule and its history.
The American legal profession has long recognized the necessity of reporting lawyers’ ethical misconduct. When the American Bar Association adopted its first code of ethics in 1908, Canon 29 of the Canons of Professional Ethics, entitled “Upholding the Honor of the Profession,” encouraged lawyers to “expose without fear or favor before the proper tribunals corrupt or dishonest conduct in the profession, . . .” Charles W. Wolfram, Modern Legal Ethics 683 n. 16 (1986). More than sixty years later, the ABA enacted Disciplinary Rule 1-103(A) of the Model Code of Professional Responsibility, the predecessor of the current Rule 8.3(a) of the Model Rules of Professional Conduct. Both the 1969 Code, in DR 1-103(A), and the 1983 Model Rules, in Rule 8.3(a), make it clear that the duty to report is not merely an aspiration but is mandatory, the violation of which subjects the lawyer to discipline. See Ronald D. Rotunda, The Lawyer’s Duty to Report Another Lawyer’s Unethical Violations in the Wake of Himmel, 1988 U. ILL. L.REV. 977, 980-81 (1988).
DR 1-103(A) provides that “A lawyer possessing unprivileged knowledge of a violation of DR 1-102 shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.” Model Rule 8.3(a) provides that “A lawyer having knowledge 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.”
This court first adopted Rule 8.3 on December 18, 1986, effective January 1, 1987. Louisiana’s rule is based on ABA Model Rule 8.3; however, there are several differences between the Model Rule and the Louisiana Rule that was in effect in 2001, at the time the formal charges were filed in this case. Most significantly, Model Rule 8.3 requires a lawyer to report the misconduct of another lawyer only when the conduct in question “raises a substantial question” as to that lawyer’s fitness to practice. Louisiana’s version of Rule 8.3 imposed a substantially more expansive reporting requirement, in that our rule required a lawyer to report all unprivileged knowledge of any ethical violation by a lawyer, whether the violation was, in the reporting lawyer’s view, flagrant and substantial or minor and technical. A task force of the Louisiana State Bar Association concluded that it was inappropriate to put a lawyer “in the position of making a subjective judgment” regarding the significance of a violation, and felt it was preferable instead “to put the burden on every lawyer to report all violations, regardless of their nature or kind, whether or not they raised a substantial question as to honesty, trustworthiness, or fitness.” See Report and Recommendation of the Task Force to Evaluate the American Bar Association’s Model Rules of Professional Conduct, at p. 24 (November 23, 1985).
We made significant changes to Rule 8.3 effective March 1, 2004, long after the formal charges were filed against respondent.
We now turn to a more in-depth examination of the reporting requirement in Louisiana. At the time the formal charges were filed in this case, Louisiana Rule 8.3(a) provided:
A lawyer possessing unprivileged knowledge of a violation of this code shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.
Thus, the rule has three distinct requirements: (1) the lawyer must possess unprivileged knowledge of a violation of the Rules of Professional Conduct; (2) the lawyer must report that knowledge; and (3) the report must be made to a tribunal or other authority empowered to investigate or act on the violation. We will discuss each requirement in turn.
In its recommendation in this case, the disciplinary board did excellent work in collecting and analyzing the cases and legal commentary interpreting the knowledge requirement of Rule 8.3(a). We need not repeat that analysis here. Considering those authorities, it is clear that absolute certainty of ethical misconduct is not required before the reporting requirement is triggered. The lawyer is not required to conduct an investigation and make a definitive decision that a violation has occurred before reporting; that responsibility belongs to the disciplinary system and this court. On the other hand, knowledge requires more than a mere suspicion of ethical misconduct. We hold that a lawyer will be found to have knowledge of reportable misconduct, and thus reporting is required, where the supporting evidence is such that a reasonable lawyer under the circumstances would form a firm belief that the conduct in question had more likely than not occurred. As such, knowledge is measured by an objective standard that is not tied to the subjective beliefs of the lawyer in question.
When to Report
Once the lawyer decides that a reportable offense has likely occurred, reporting should be made promptly. Arthur F. Greenbaum, The Attorney’s Duty to Report Professional Misconduct: A Roadmap for Reform, 16 GEO. J. LEGAL ETHICS 259, 298 (Winter 2003). The need for prompt reporting flows from the need to safeguard the public and the profession against future wrongdoing by the offending lawyer. Id. This purpose is not served unless Rule 8.3(a) is read to require timely reporting under the circumstances presented.
Louisiana Rule 8.3(a) requires that the report be made to “a tribunal or other authority empowered to investigate or act upon such violation.” The term “tribunal or other authority” is not specifically defined. However, as the comments to Model Rule 8.3(a) explain, the report generally should be made to the bar disciplinary authority. Therefore, a report of misconduct by a lawyer admitted to practice in Louisiana must be made to the Office of Disciplinary Counsel.
DETERMINATION OF RESPONDENT’S MISCONDUCT AND APPROPRIATE DISCIPLINE
Applying the principles set forth above to the conduct of respondent in the instant case, we find the ODC proved by clear and convincing evidence that respondent violated Rule 8.3(a). First, we find that respondent should have known that a reportable event occurred at the time of his 1994 barroom conversation with Mr. Deegan. Stated another way, respondent’s conversation with Mr. Deegan at that time gave him sufficient information that a reasonable lawyer under the circumstances would have formed a firm opinion that the conduct in question more likely than not occurred. Regardless of the actual words Mr. Deegan said that night, and whether they were or were not “equivocal,” respondent understood from the conversation that Mr. Deegan had done something wrong. Respondent admitted as much in his affidavit, during the hearing on the motion for new trial in the criminal case, during his sworn statement to the ODC, and during his testimony at the formal hearing. Indeed, during the sworn statement respondent conceded that he would have reported the matter “immediately” were it not for the personal problems he was then experiencing. Respondent also testified that he was surprised and shocked by his friend’s revelation, and that he told him to remedy the situation. There would have been no reason for respondent to react in the manner he did had he not formed a firm opinion that the conduct in question more likely than not occurred. The circumstances under which the conversation took place lend further support to this finding. On the same day that he learned he was dying of cancer, Mr. Deegan felt compelled to tell his best friend about something he had done in a trial that took place nine years earlier. It simply defies logic that respondent would now argue that he could not be sure that Mr. Deegan actually withheld Brady evidence because his statements were vague and non-specific.
We also find that respondent failed to promptly report Mr. Deegan’s misconduct to the disciplinary authorities. As respondent himself acknowledged, he should have reported Mr. Deegan’s statements sooner than he did. There was no reason for respondent to have waited five years to tell the ODC about what his friend had done.
In his answer to the formal charges, respondent asserts that he did comply with the reporting requirement of Rule 8.3(a) because he promptly reported Mr. Deegan’s misconduct to the District Attorney and the Criminal District Court through the attorneys for the criminal defendant, John Thompson. Respondent has misinterpreted Rule 8.3(a) in this regard. The word “tribunal” must be read in the context of the entire sentence in which it appears. The proper inquiry, therefore, is what authority is “empowered” to act upon a charge of attorney misconduct. In Louisiana, only this court possesses the authority to define and regulate the practice of law, including the discipline of attorneys. La. Const. art. V, § 5(B); In re Bar Exam Class Action, 99-2880 (La. 2/18/00), 752 So.2d 159, 160. In turn, we have delegated to disciplinary counsel the authority to investigate and prosecute claims of attorney misconduct. Supreme Court Rule XIX, § 4. Furthermore, while a trial court bears an independent responsibility to report attorney misconduct to the ODC, see Canon 3B(3) of the Code of Judicial Conduct, only this court may discipline an attorney found guilty of unethical behavior. Therefore, respondent is incorrect in arguing that he discharged his reporting duty under Rule 8.3(a) by reporting Mr. Deegan’s misconduct to Mr. Thompson’s attorneys, the District Attorney, and/or the Criminal District Court. It is undisputed that respondent did not report to the appropriate entity, the ODC, until 1999. That report came too late to be construed as “prompt.”
Although our primary focus is on Rule 8.3(a), we also note that respondent’s conduct violated Rule 8.4(d).
Having found professional misconduct, we now turn to a discussion of an appropriate sanction. In considering that issue, we are mindful that the purpose of disciplinary proceedings is not primarily to punish the lawyer, but rather to maintain the appropriate standards of professional conduct, to preserve the integrity of the legal profession, and to deter other lawyers from engaging in violations of the standards of the profession. In re: Vaughan, 00-1892 (La. 10/27/00), 772 So.2d 87; In re: Lain, 00-0148 (La. 5/26/00), 760 So.2d 1152; Louisiana State Bar Ass’n v. Levy, 400 So.2d 1355 (La. 1981). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. In re: Redd, 95-1472 (La. 9/15/95), 660 So.2d 839; Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La. 1984).
Respondent’s actions violated the general duty imposed upon attorneys to maintain and preserve the integrity of the bar. In re: Brigandi, 02-2873 (La. 4/9/03), 843 So.2d 1083 (citing Louisiana State Bar Ass’n v. Weysham, 307 So.2d 336 (La. 1975)). While we adhere to our observation in Brigandi that an attorney’s failure to comply with the reporting requirement is a “serious offense,” in the instant case, we find that respondent’s conduct was merely negligent. Accordingly, Standard 7.3 of the ABA’s Standards for Imposing Lawyer Sanctions provides that the appropriate baseline sanction is a reprimand.
Standard 7.3 provides that a reprimand is generally appropriate when a lawyer negligently engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system.
The only aggravating factor present in this case is respondent’s substantial experience in the practice of law. As for mitigating factors, we adopt those recognized by the disciplinary board, placing particular emphasis on the absence of any dishonest or selfish motive on respondent’s part. Notwithstanding these factors, however, respondent’s failure to report Mr. Deegan’s bad acts necessitates that some sanction be imposed. Respondent’s knowledge of Mr. Deegan’s conduct was sufficient to impose on him an obligation to promptly report Mr. Deegan to the ODC. Having failed in that obligation, respondent is himself subject to punishment. Under all of the circumstances presented, we conclude that a public reprimand is the appropriate sanction.
Accordingly, we will reprimand respondent for his actions.
Reporting another lawyer’s misconduct to disciplinary authorities is an important duty of every lawyer. Lawyers are in the best position to observe professional misconduct and to assist the profession in sanctioning it. While a Louisiana lawyer is subject to discipline for not reporting misconduct, it is our hope that lawyers will comply with their reporting obligation primarily because they are ethical people who want to serve their clients and the public well. Moreover, the lawyer’s duty to report professional misconduct is the foundation for the claim that we can be trusted to regulate ourselves as a profession. If we fail in our duty, we forfeit that trust and have no right to enjoy the privilege of self-regulation or the confidence and respect of the public.
Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Michael G. Riehlmann, Louisiana Bar Roll number 2072, be publicly reprimanded. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.
VICTORY, J., dissents and assigns reasons.
I dissent from the majority opinion and would impose a harsher sanction on Respondent.