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Ethics Opinions Every South Carolina Attorney Should Know: Part XVI, Not Reporting Substantial Misconduct

Thomas McDow made the excellent suggestion that I do a column on the Rule 8.3 duty to report professional misconduct.  It was a failure on my part to not do so as I am well aware of the duties that subsections a and b of this rule require:

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s honesty, trustworthiness, or fitness for office in other respects shall inform the appropriate authority.

The comments to this rule both help explain the need for it and create an important limitation upon it.  Comment one notes:

Self regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. Lawyers have a similar obligation with respect to judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense.

Comment three creates an important limitation upon the duty to report misconduct:

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 bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances. Similar considerations apply to the reporting of judicial misconduct.

Many times when I have believed that another attorney may have violated the Rules of Professional Conduct I have talked to that attorney about my concern and have almost always received a satisfactory response.  Since I did not believe the conduct raised “a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects” I did not feel the need to report the conduct.  The only time I have reported an attorney for misconduct was when that attorney engaged in a pattern of misconduct in which I repeatedly suggested his behavior was not appropriate and he continued to engage in it.

Similarly there have been times when another attorney has had problems with my conduct and I have always been relieved rather than angered when that attorney took the time to note his or her concern.  More than once I have changed or corrected my actions based on that attorney’s counsel.  There are a few attorneys out there who threaten to report other attorneys to the Office of Disciplinary Counsel when they do not like the tactics that attorney is using.  Such behavior is not only reprehensible, it is unethical.

My failure to do a column on this topic was due to my mistaken belief that no attorney has been disciplined for a violation of Rule 8.3.  Actually there are two reported cases on this issue, though in neither case was the failure to report misconduct the sole basis of discipline.

In In re Bowden, 364 S.C. 310, 613 S.E.2d 367 (2005), Bowden learned that his supervising attorney was inflating government recording fees on HUD-1 settlement statements. Bowden questioned his supervisor about the practice, who assured him that the practice was ethical and legal.  Further his supervising attorney was mishandling client funds, though Bowden was not aware of this.

The Supreme Court publicly reprimanded Bowden, finding he violated South Carolina Professional Conduct Rule 5.1 (lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if, with knowledge of the specific conduct, the lawyer ratifies the conduct involved); Rule 5.2 (lawyer is bound by the Rules of Professional Conduct notwithstanding lawyer acts at the direction of another person); and Rule 8.3 (lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as that lawyer’s honesty, integrity, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate professional authority).  In addition, the court found he failed to comply with Rule 417, SCACR (addressing financial recordkeeping).

I am unclear why the safe harbor of Rule 5.2(b) (“A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.”) didn’t protect Bowden from discipline.  It would have been helpful for the Supreme Court to explain why he couldn’t rely upon his supervising attorney informing him that the conduct “was ethical and legal” or how he could be responsible for his supervising attorney mishandling client funds.

In In Re Galmore, 340 S.C. 46, 530 S.E.2d 378 (2000), Galmore was publicly reprimanded, in part, for failing to report to the Commission on Lawyer Conduct, that a suspended attorney had offered to assist him handling a case Galmore had taken over from the suspended attorney.

The lesson of Bowden and Galmore: the law is a self-policing profession and every attorney has an obligation in ensuring that fellow attorneys and judges practice ethically.

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  • I think most of the problems of the legal profession are a direct result of lawyers’ reluctance to report professional misconduct. I have made five reports in my forty-two year career and none of the five are practicing law today. I am looking for an opinion by the Supreme Court of South Carolina where the only offense was a failure to report.

  • Lilly Collette

    This case may be of some use to your search: In re Himmel, 533 NE 2d 790 – Ill: Supreme Court 1988
    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:

    We have held that fairness dictates consideration of mitigating factors in disciplinary cases. […] 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.

  • I just learned that there is no statute of limitations for being charged with violating South Carolina Rules of Professional Conduct. I wonder how many lawyers would actually report another lawyer for serious violations. My guess is 10% or less. How many lawyers would report judicial misconduct? I have been involved in over 1000 cases as a private investigator and over a dozen cases as a self-represented litigant. What goes on in “chambers” and in circuit court when the court reporter is on a break between hearings is unbelievable. One judges makes unethical remarks to me when I sit in the back row quietly trying to observe court procedures. Comments like “Mr. xxxxx is here learning how to be a trial lawyer” or warning me that the opposing attorney will never settle my case – out of the blue. Other comments have included “Mr. xxxxx – you’re not a lawyer, so you don’t know how to interpret court rules”. The level of prejudice is very frustrating. With modern technology as it is, why is there no audio/video recording in the courtroom? Why are judges allowed to pull people into “chambers” without a court reporter? Then the judge orders the opposing lawyer to prepare the order of what just happened in chambers. As Forrest Gump and his mother said “life is like a box of chocolates – you never know what you’re going to get”. In one case the lawyer wrote the order about what he wanted in the order, even though most of what he put in the order was not even discussed. The judge forgot to order the court reporter (small county) so he called us into chambers (was actually a break room or small kitchen) and despite my request for a continuance so the hearing could be on the record he said “we’re going to hear this right now right now”. Then the lawyer presented his case with affidavits, etc… I objected to non-notarized affidavits and the lawyer testifying about untrue facts, etc… I was only allowed to talk for a moment. Anyway, a few days later the lawyer sent his proposed order, which was now an agreement containing a restraining order and all kinds of other crap not even discussed at the hearing totally slanted. The judge signed the order and now I’m screwed. I respect the law and actually do like lawyers (for the most part). I am disappointed and frustrated with the prejudice I have experienced. Now I understand better what many minorities have felt fighting for their civil rights, or in many cases their lives. signed – frustrated in SC

  • p.s.

    Greg – you are an excellent, honest lawyer and your blog articles are outstanding – much appreciated!

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