Rules 8.1, 8.3—Providing Information to Professional Authorities
I. OVERVIEW
A. Reporting, Responding, Applying
Rules 8.1 and 8.3 are considered together here, because both Rules require providing information to professional authorities. Rule 8.1(b) and Rule 8.3 require providing information primarily to the Office of Lawyers Professional Responsibility (OLPR) and secondarily to the Board on Judicial Standards (BJS). Rule 8.1 also deals with providing information to the Board of Law Examiners (BLE).
B. Failure to Respond is a Frequent Subject of Discipline
Rules 8.1 and 8.3 are generally not the subject of disciplines, with one major exception—lawyers disciplined for violating Rule 8.1(b) by not responding to OLPR requests. In 2011, about ten percent of private admonitions included Rule 8.1(b) violations, and in over half of these admonitions, failure to cooperate with OLPR was the only violation. Each of the admonished lawyers eventually complied with the OLPR request, but still received a discipline. Megan Englehart, Requirement to Cooperate with Director is Just That: A Requirement, MINN. LAW., Sept. 5, 2011. If a bar applicant fails to respond to a BLE request, the applicant can expect a repeat request. The first consequence of failure to respond will be that BLE will hold the application in abeyance, and the failure to cooperate may well be counted against fitness for admission.
C. Subjects Not Considered Here
1. Rule 8.3(c), Confidentiality and Reporting. Rule 8.3(c), and the relationship between Rules 8.3 and 1.6, are discussed primarily in the chapter of this treatise on Rule 1.6. That chapter explains why the exceptions to the reporting obligation in Rule 8.3(c) and Rule 1.6 nearly swallow the reporting obligation of Rule 8.3(a). A few additional considerations are stated below. Similarly, an ABA Opinion, interpreting the Model Rules, concludes, "As a practical matter, clients have the ultimate authority when it comes to protecting confidential information. Hence, however salutary and indeed important the reporting of misconduct of lawyers may be, under the Model Rules the hands of lawyers are often effectively tied in these situations by the wishes or even whims of their clients." ABA Comm. on Ethics & Prof'l Responsibility, Formal Op. 04-433 (2004) (footnotes omitted).
2. Threats and Reporting. The circumstances in which it is improper to threaten a report to OLPR are considered in the chapter of this treatise on Rule 4.4. In some circumstances, OLPR will regard a threat by one lawyer, to report another lawyer to OLPR, as misconduct. Relevant factors include whether (1) the misconduct is unrelated to the claim involved in the underlying representation; (2) the complaint to OLPR is not well-founded; (3) the threat's only substantial purpose is to embarrass or burden; and (4) the threat is prejudicial to the administration of justice. Edward J. Cleary, The Obligation to Report and Retaliatory Ethics Complaints, BENCH & B. OF MINN., Apr. 1998, at 19.
3. Rule 8.3(b)—Judges. Because there appears to be no case law or commentary in Minnesota regarding the requirement that lawyers report judges' serious misconduct, the topic is not addressed here. Rule 8.3(b).
II. RULE 8.3 OVERVIEW
A. "Without Fear or Favor"—Historical Overview
Rule 8.3's lineage began with Canon 29 of the 1908 ABA Canons of Professional Conduct: "Lawyers should expose without fear or favor before the proper tribunals corrupt or dishonest conduct in the profession ... ." Canon 29 also provided antecedents for the Rule 8.3 requirements relating to bar applicants and to serious misconduct by judges. An excellent historical overview of Rule 8.3 (until 1998), with philosophical reflections on the competing considerations in mandated reporting, is found in Edward J. Cleary, The Obligation to Report and Retaliatory Ethics Complaints, BENCH & B. OF MINN., Apr. 1998, at 19.
B. No Rule 8.3 Cases in Minnesota
OLPR has made clear that, "seldom will this office seek discipline of an attorney for failing to report another." Edward J. Cleary, The Obligation to Report and Retaliatory Ethics Complaints, BENCH & B. OF MINN., Apr. 1998, at 19, 21. OLPR's 1998 report remains accurate and would still be accurate if "solely" were deleted; "There have been no reported cases in Minnesota in which an attorney was disciplined solely for failure to report another attorney." Mary L. Galvin, A Lawyer's Duty to Report Misconduct Under Rule 8.3, MINN. LAW., Dec. 3, 2001, at 2, 4 (footnote omitted).
C. Rule 8.3 Outside of Minnesota
Only a handful of Rule 8.3 disciplines have been reported nationwide. This treatise normally does not cite non-Minnesota cases, but two cases warrant citation here, with another case (Warren) cited below.
1. In re Himmel, 533 N.E.2d 790 (Ill. 1988). This is by far the most-cited Rule 8.3 case. It resulted in a one year suspension for not reporting trust account theft and for drafting and entering into agreement not to report. Himmel is discussed in an OLPR article. William J. Wernz, To Report or Not to Report, BENCH & B. OF MINN., Dec. 1988, at 10.
2. In re Riehlmann, 891 So. 2d 1239 (La. 2005). This case is noted for its drama. In April 1994, a lawyer, Deegan (D), met his old friend and colleague, Riehlmann (R), in a New Orleans bar and told him two important things. D had been diagnosed with colon cancer (and would die in July 1994). When D and R had worked together, as prosecutors, D had suppressed important exculpatory evidence in a criminal matter. R urged D to disclose and remedy the criminal conviction, but D did not do so and R did nothing. In 1999, R read a newspaper report of a death row inmate, Thompson (T), whose lawyers had discovered a crime lab blood report that tended to exculpate T. R then disclosed D's admission to T's lawyers and reported the matter to disciplinary counsel. After lengthy proceedings, and many distinctions not reported here, R received a public reprimand, for violating Rule 8.3. In re Riehlmann, 891 So. 2d 1239 (La. 2005).
D. OLPR Advisory Opinions
An OLPR article explains why OLPR is wary of opinion requests based on lawyers' perceived duty to report their opponents. "A frequent inquiry concerns whether the caller has a duty to report the alleged misconduct of some other attorney, usually opposing counsel in some contested matter. The advisory opinion service does not provide opinions on third-party conduct, i.e., the conduct of the 'other lawyer.' Certainly Rule 8.3(a), MRPC, imposes a duty on lawyers to report the misconduct of other lawyers of which they have knowledge and that raises a substantial question as to the other lawyer's honesty, trustworthiness or fitness. But the recent call about an opposing attorney who might have a conflict of interest did not raise such an issue; posing it as an advisory opinion question about the caller's duty to report doesn't change that. We'll describe the limited scope of the rule and usually be able to advise a caller that she has no duty to report; but we'll not say whether the other lawyer's conduct violates the rules." Martin A. Cole, Advisory Opinion Sampler, BENCH & B. OF MINN., Sept. 2009, at 14, 17.
E. Commentary
Rule 8.3 has been the subject of a large number of OLPR articles, when compared to the dearth of applications of Rule 8.3 in actual disciplines. Because Rule 8.3 and its Code predecessor have been repeatedly amended, articles on Rule 8.3 published before the most recent amendments, in 2005, should be used with great caution. Rule 8.1 has been mentioned often in commentary, but it is a less complex and interesting subject than Rule 8.3.
F. Mandated Reporting—True Professionalism or Totalitarian Mandate?
Is the duty to report under Rule 8.3 a hallmark of a true professional? Or are such laws generally morally ambiguous conscriptions? These competing characterizations are discussed in an OLPR article, William J. Wernz, To Report or Not to Report, BENCH & B. OF MINN., Dec. 1988, at 18. The article reports the agonizing situation when "the Board of Medical Examiners disciplined a doctor-father for not reporting his son-doctor's continuing drug use."Id. at 11. An article examining these issues in much greater depth is Gerard E. Lynch, The Lawyer as Informer, 1986 DUKE L.J. 491 (1986).
G. Associate and Partner Duties and Reporting
Rule 8.3(a) applies to any "lawyer." An associate who comes to know of a partner's serious misconduct has a reporting duty. As a practical matter, it is usually best for the associate to report to the lawyer(s) in the firm who have responsibility for dealing with such problems. If the firm does not report the misconduct to the appropriate professional authority, the associate must do so.
Rule 5.1 makes partners in a law firm responsible for rule violations of other lawyers in the firm in certain circumstances. The members of a firm's governing authority may come to have a duty to report a firm lawyer who, for example, steals money from the firm or from clients. A case in Maine involved charges that every member of the Warren firm's Executive Committee violated Rules 5.1 and 8.3, by not reporting defalcations promptly. The Rule 8.3 charges were not sustained, only because of unusual Rule 8.3 interpretations in Maine. The Warren firm learned that a partner had misappropriated law firm funds, but nonetheless relied for some months on the partner's assurance the misappropriation was isolated and did not involve client funds. During this time, the firm did not report the misconduct to disciplinary counsel. A nonlawyer, former employee, reported the conduct to disciplinary counsel. The firm's Executive Committee members were found to have violated Rule 5.1, but not Rule 8.3. Bd. of Overseers of the Bar v. Warren, 2011 ME 124, 34 A.3d 1103 (Me. 2011).
H. "Fitness as a Lawyer in Other Respects"
Rule 8.3(a) requires reporting when a lawyer knows of another lawyer's rule violation or violations that raise a substantial question as to...
