Why Reporting Is Mandatory

Duty to Report Misconduct

Why Reporting Is Mandatory

A profession that governs itself must hear about misconduct from its own members, and Rule 8.3 turns that need into a command. Paragraph (a) provides that a lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct, one that raises a substantial question about that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects, “shall” inform the appropriate professional authority.¹ Paragraph (b) gives judges the same treatment. A lawyer who knows that a judge has violated the applicable rules of judicial conduct in a way that raises a substantial question about the judge's fitness for office “shall” inform the appropriate authority.² A lawyer who meets the conditions has no discretion to decide that a report would be awkward, unwelcome, or unnecessary.

The comments to Rule 8.3 state the reason directly. Self-regulation of the profession requires its members to initiate disciplinary investigation when they know of a violation, and lawyers have a similar obligation with respect to judicial misconduct.³ Reporting matters most where the victim is unlikely to discover the offense. An apparently isolated violation may also indicate a pattern of misconduct that only a disciplinary investigation can uncover.⁴

The stakes reach beyond any single victim. If lawyers prove incapable of policing their own ranks, the executive or legislative branches may intervene, and a profession that has lost its independence from the political branches may find its lawyers less able to act with zealous regard for the rights of citizens.⁵ The treatise therefore describes the lawyer's obligation three ways: a moral duty, a formal duty, and a self-interested incentive to report, so that the disciplinary process can protect the public from practitioners unfit to practice.⁶ A Texas opinion makes the same point about Texas's Rules 5.01 and 8.03, calling them essential to the self-regulatory nature of law practice and to the honor of the profession itself.⁷

The word “shall” has a concrete consequence. The Louisiana court in re Riehlmann was asked for the first time to delineate the scope of the duty under Rule 8.3, and it began with the rule's history. Both the 1969 Code, in DR 1-103(A), and the 1983 Model Rules, in Rule 8.3(a), make clear that the duty to report is not merely an aspiration but is mandatory, and a lawyer who violates it is subject to discipline.⁸ A lawyer who knows of a qualifying violation and stays silent has therefore done more than miss a chance to do good. The silence is a violation of its own.

The duty is mandatory without being unlimited. Rule 8.3 does not reach every violation of the Rules. It reaches only those that raise a substantial question about honesty, trustworthiness, or fitness.⁹ The comments explain the cutback. If a lawyer had to report every violation, failing to report any one of them would itself be a professional offense. Many jurisdictions once had such a requirement, and it proved unenforceable, so the rule confines the duty to offenses that a self-regulating profession must vigorously endeavor to prevent.¹⁰ Louisiana's version of Rule 8.3 took the opposite course. It required a lawyer to report all unprivileged knowledge of any ethical violation by a lawyer, whether flagrant and substantial or minor and technical. A state bar task force had concluded that lawyers should not be put in the position of making a subjective judgment about a violation's significance, and it preferred to burden every lawyer with reporting every violation.¹¹ The Model Rule makes the other trade. It requires a measure of judgment from the reporting lawyer and gets in return a duty that can actually be enforced.¹² Neither extreme describes the rule. The duty is not optional encouragement, and it is not a duty to report every infraction.

The first question comes first because it selects the yardstick for everything after it: the lawyer rules measure a lawyer's conduct, and the judicial conduct rules measure a judge's. The second and third questions then work as filters. Knowledge screens out rumor, and substantiality screens out the minor and technical. Even a violation that passes all three may go unreported when a report would involve a violation of Rule 1.6, an exception that a later section develops along with the content of the report itself.¹⁶