Last week, the California Supreme Court approved a rule that requires a lawyer to report another lawyer’s misconduct. Among others, Bloomberg Law, Law360, and Reuters, reported the news.
I didn’t intend to blog about the Golden State’s new rule. However, yesterday, a reader suggested that a reminder on Vermont’s rule would be helpful.
I agree.
In addition, when I’m finished discussing Vermont’s rule, I will share my reaction to reports that California adopted a “snitch rule.” A reaction rooted in memories of begging the First Brother not to tell my parents that I’d watched Love Boat and game shows all morning instead of playing outside.
A common ethics inquiry is “Mike, I think I have a duty to report another attorney. What do you think?”
As I’ve made clear in my Policies on Ethics Inquiries and at numerous CLEs, I will not give an opinion on the conduct of someone other than the person who is contacting me. For one, nothing in the rules that govern the Professional Responsibility Program authorizes me to issue such an opinion. For another, it would be inappropriate for me to do so in response to learning only one side of the story. So, if anyone ever informs you “Mike Kennedy says you violated the rules,” I didn’t.
Most of the inquiries in which someone asks whether they have a duty to report involve conflicts of interest. So, I’ll use that as an example.
When a lawyer asks whether another lawyer has a conflict, I will:
- refer the inquirer to the conflicts rules, to any relevant disciplinary decisions that discuss the conflicts rules, and to any advisory ethics opinions that lend guidance on the conflicts rules;
- share thoughts on whether the inquirer’s duty of competence requires the inquirer to move to disqualify the other lawyer;
- direct the inquirer to Vermont’s reporting rule, without offering my thoughts on whether a report is required;
- remind the inquirer about the exemptions & exceptions to the reporting rule; and,
- share thoughts on the timing of any report the inquirer might make, including a warning against making a report for other reason than to gain leverage in an underlying action.
Our reporting rule is Rule 8.3 of the Vermont Rules of Professional Conduct . Paragraph (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.”
Comment [3] is instructive and often answers several of most of an inquirer’s questions. In part, it states:
- “This rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, 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.”
Paragraph (c) sets out the exemptions and exceptions. They include:
- Bar Counsel is exempt from reporting information disclosed in an ethics inquiry;
- a lawyer is exempt from reporting information learned while participating in a lawyer assistance program approved by the VBA; and,
- a lawyer is exempt from reporting “information otherwise protected by Rule 1.6.”
The final exemption refers to the confidentiality rule. As Comment 2 explains:
- “A report about misconduct is not required where it would involve violation of Rule 1.6. However, a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client’s interests.”
That’s our reporting rule. In my opinion, it creates a high bar that must be cleared for a report to be mandatory. Perhaps that explains why there is not a single reported disciplinary decision in which a Vermont lawyer has been sanctioned for failing to make an otherwise mandatory report.
Which gets me back to my reaction to the headlines and articles that reported that California adopted a “snitch rule.”
Even under Vermont’s standard, we aren’t exactly mandating playground-variety tattling. Again, here are key words & phrases from the rule and its comments:
- Knows that another lawyer violated the rules.
- Substantial question as to the other lawyer’s honesty, trustworthiness, and fitness.
- Limited to offense that we must vigorously endeavor to prevent.
- Judgment is required in complying with the rule.
- Exempt from reporting information relating to the representation of a client.
Arguably, California’s rule creates a hurdle higher than Vermont’s. It requires a report:
- “when the lawyer knows of credible evidence that another lawyer has committed a criminal act or engaged in conduct involving dishonesty, deceit, or reckless or intentional misrepresentation, or misappropriation of funds or property that raises a substantial question as to the other lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.”
Hmm.
So, the new California rule requires a report whenever another lawyer commits a crime, lies, or steals?
And only if the crime, the lie, or the theft raises a substantial question as to that person’s honesty or trustworthiness?
If that’s “snitching,” then the word has a different meaning than it did when I was a kid.
As always, let’s be careful out there.
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Ethical Grounds 
[…] B. Whether to report another lawyer’s misconduct. See, this blog post. […]
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