(This article appeared in Journal 19,2, June 2014)
The mandatory reporting requirement set out in Rule 8.3 is an important way that the legal profession enforces the Rules of Professional Conduct. However, the nuances of the reporting requirement frequently perplex new, as well as seasoned, lawyers.
Rule 8.3(a) provides:
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 North Carolina State Bar or the court having jurisdiction over the matter.
"I think Billy read my diary."
Rule 8.3 requires the lawyer’s actual knowledge of a violation of the Rules—not speculation or conjecture. The terminology section of the Rules of Professional Conduct, Rule 1.0, states that “knowingly,” “known,” and “knows” denote “actual knowledge of the fact in question,” but also provides that “a person’s knowledge may be inferred from the circumstances.”
"Billy is picking his nose!"
Only a violation that raises a substantial question about specific traits of the lawyer—honesty, trustworthiness, or fitness—must be reported. Comment [4] to Rule 8.3 provides:
If a lawyer were obliged to report every violation of the Rules, the failure to report any violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term "substantial" refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. A report should be made to the North Carolina State Bar unless some other agency or court is more appropriate in the circumstances. Similar considerations apply to the reporting of judicial misconduct.
For example, in most instances, failure to follow the technical requirements of the advertising rules would not raise a “substantial question” about honesty, trustworthiness, or fitness. Similarly, a conflict of interest or an inadvertent contact with a represented person would generally not rise to this level. If a lawyer found possible incompetent representation upon reviewing a prior lawyer’s file, the lawyer would likely not be required to report that conduct unless it was serious or serial malpractice, thus raising a substantial question about fitness to practice law. Matters involving a lawyer’s trust account should always be reported.
The “substantial question” requirement is discussed in RPC 243 (1997). In RPC 243, a prosecutor threatens to use the statutory calendaring power of the District Attorney's Office to delay a defendant’s trial if the defendant will not accept a plea bargain. The opinion concludes the prosecutor’s threat to use the criminal trial scheduling process to coerce a plea agreement from a criminal defendant is prejudicial to the administration of justice in violation of Rule 8.4.
As to whether a lawyer who overhears the threat has a duty to report the prosecutor to the Bar, the opinion provides:
Prosecutor's conduct may be an isolated incident resulting from a momentary lapse in judgment. If so, such conduct does not raise a "substantial" question as to Prosecutor's fitness as a lawyer. The lawyer who overhears the conversation may want to counsel Prosecutor with regard to his conduct, but the lawyer is not required to report the conduct to the State Bar. However, if the lawyer knows that Prosecutor routinely abuses the discretionary power to schedule criminal cases or, after being advised that this conduct is a violation of the Rules, Prosecutor continues the conduct, the lawyer should report the matter to the State Bar or other appropriate authority.
A similar conclusion was reached in 2011 FEO 4, which deals with exclusive reciprocal referral agreements. The opinion provides that a lawyer who discovers that another lawyer is participating in what appears to be an improper referral arrangement should first communicate his concerns to the other lawyer and recommend that the lawyer contact the State Bar for an ethics opinion as to his continuing participation. The opinion goes on to state that if, after this communication, the lawyer has knowledge that the other lawyer has continued his participation in an improper referral arrangement, the lawyer must report the other lawyer to the Bar.
"You can’t tell mom. You pinky swore!"
The duty of confidentiality, as set forth in Rule 1.6, limits a lawyer’s duty to report the misconduct of another lawyer. See Rule 8.3(c). If a client’s interests would be harmed by reporting to the State Bar (or a court with jurisdiction), or the client instructs the lawyer not to report, the lawyer may not report unless one of the exceptions to the duty set forth in Rule 1.6(b) applies. Comment [3] to Rule 8.3 provides that “a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client's interests.”
"I didn’t think I needed to tell mom. I told dad."
Reporting the matter to the court having jurisdiction over the matter satisfies the reporting requirements of Rule 8.3. Comment [2] to the rule provides:
Although the North Carolina State Bar is always an appropriate place to report a violation of the Rules of Professional Conduct, the courts of North Carolina have concurrent jurisdiction over the conduct of the lawyers who appear before them. Therefore, a lawyer's duty to report may be satisfied by reporting to the presiding judge the misconduct of any lawyer who is representing a client before the court.
Reporting misconduct based on a lawyer’s impairment to the Lawyer Assistance Program (LAP) of the North Carolina State Bar does not satisfy the reporting requirements of Rule 8.3. The report of misconduct should be made to the Grievance Committee of the State Bar if the lawyer’s impairment results in a violation of the Rules of Professional Conduct that is sufficient to trigger the reporting requirement. See 2003 FEO 2.
However, as stated in 2003 FEO 2, reporting to the Bar as required under Rule 8.3 “does not diminish the appropriateness of also making a confidential report to LAP. The bar's disciplinary program and LAP often deal with the same lawyer and are not mutually exclusive. The discipline program addresses conduct; LAP addresses the underlying illness that may have caused the conduct. Both programs, in the long run, protect the public interest.”
Discussing an issue with ethics counsel does not satisfy the reporting requirement.
"I’ll give you my left over Easter candy if you don’t tell mom."
A lawyer may not participate in the settlement of a dispute conditioned on an agreement not to report lawyer misconduct or an agreement to withdraw a previously filed grievance. See RPC 84 (1990). Similarly, a threat to file disciplinary charges is unethical in circumstances where a lawyer would be required to file such charges by Rule 8.3. Such a threat would also be improper if the disciplinary charges are frivolous. See Rule 3.1.
"If I just glue this vase back together, mom will never know."
Maybe not. With the limited exception set out in Rule 8.3(d), there is no duty under Rule 8.3 to self-report. This seems to be the most common misconception about Rule 8.3. However, Rule .0116, Reciprocal Discipline & Disability Proceedings, of the State Bar administrative rules on discipline and disability (27 N.C.A.C. 1B), requires a lawyer licensed in North Carolina who has been disciplined in any state or federal court for a violation of the Rules of Professional Conduct in effect in such state or federal court, or who has been transferred to disability inactive status or its equivalent by any state or federal court, to make a written report of the action to the North Carolina State Bar within 30 days. Failure to make the report may subject the lawyer to professional discipline. Rule 8.3(d) of the Rules of Professional Conduct.
Notwithstanding the absence of a requirement in Rule 8.3 to self report potential professional misconduct to the State Bar, it may be in the lawyer’s best interest to self-report conduct that involves dishonesty, fraud, deceit, or misrepresentation because it may be considered a mitigating factor in the event a grievance file is opened, and discipline may be imposed. While self-reporting will not eliminate the possibility of discipline, it may affect the level of discipline. Before a lawyer decides to self-report, the lawyer should consider whether to seek advice from counsel and/or the lawyer’s professional liability carrier.
"I used my lunch money to buy Pokemon cards."
It is important to note that there is a separate reporting duty (as well as a different reporting standard) when it comes to safekeeping property. Rule 1.15-2(o) states that “[a] lawyer who discovers or reasonably believes that entrusted property has been misappropriated or misapplied shall promptly inform the North Carolina State Bar.” It is prudent to remember that the reporting requirement in Rule 1.15-2 is different from that set out in Rule 8.3 and applies to a lawyer’s own conduct as well as the conduct of other lawyers or nonlawyers. Contacting the trust account compliance counsel Peter Bolac regarding such trust account issues will satisfy the reporting requirement of Rule 1.15-2.
"Nobody likes a tattletale."
While lawyers may feel icky “snitching” on their colleagues, sometimes it is necessary. The reason for the reporting obligation set out in Rule 8.3 is summarized in the Preamble to the Rules of Professional Conduct:
The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement... The legal profession's relative autonomy carries with it a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers.
Preamble to the Rules of Professional Conduct, Rule 0.1, paras. [14], [16]. Lawyers have been entrusted with these responsibilities because they are in the best position to observe misconduct by fellow lawyers, and to assist the legal profession in investigating and sanctioning misconduct. “Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.” Preamble, para. [16]. Therefore, so long as the report is not frivolous, or made simply to harass another lawyer, a lawyer should not hesitate to make any report that, while not required under Rule 8.3, the lawyer reasonably believes is necessary for the protection of the public or the profession.
Suzanne Lever is assistant ethics counsel for the North Carolina State Bar.