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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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