Whose Misconduct Triggers the Duty

Rule 8.3 gives each kind of offender a paragraph of its own. Paragraph (a) governs a lawyer who knows of a violation by another lawyer; paragraph (b) governs a lawyer who knows of a violation by a judge.¹ Three questions decide whether either paragraph applies: who committed the misconduct, whether the reporting lawyer knows of it, and whether it raises a substantial question about honesty, trustworthiness, or fitness. The offender's identity comes first because it selects the paragraph, and the paragraph supplies the text against which the other two questions are asked.

The choice of paragraph changes the yardstick and, on the face of the text, the recipient of the report. Paragraph (a) measures a lawyer's conduct against the Rules of Professional Conduct and sends the report to “the appropriate professional authority.” Paragraph (b) measures a judge's conduct against “applicable rules of judicial conduct” and sends the report to “the appropriate authority.”² Testing a judge against the lawyer rules, or a lawyer against the judicial rules, asks the wrong question at the outset.

Misconduct by Another Lawyer

Paragraph (a) requires 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 to inform the appropriate professional authority.³ Knowledge and substantiality get their own sections below. Two features of the wording matter here: the conduct must violate the Rules, and the violator must be another lawyer.

The first feature separates reportable misconduct from misconduct that need not be reported, because the duty does not reach every violation. The comments explain that many jurisdictions once required lawyers to report every violation, and that the requirement proved unenforceable because failing to report any violation was itself an offense. Rule 8.3 therefore confines the duty to offenses that a self-regulating profession must vigorously endeavor to prevent, and it calls for “a measure of judgment.” The word “substantial” measures the seriousness of the possible offense, not the quantum of evidence the lawyer holds.⁴ A lawyer applying paragraph (a) thus asks two things: do the facts show a breach of the Rules, and does the breach bear on honesty, trustworthiness, or fitness? A client's loss, standing alone, answers neither.

Hypothetical Illustration

A litigator misses a response deadline once because of a calendaring slip, and the court enters a default that costs the client the case. The litigator admits the slip, and nothing suggests dishonesty or any earlier trouble. A lawyer at another firm learns these facts. The lapse was careless and the loss was real, but on these facts it raises no substantial question about the litigator's honesty, trustworthiness, or fitness, so the second lawyer has nothing to report. Change the facts so that the litigator tells the client for months that the court is still considering the matter, and the conduct becomes concealment. It now goes to honesty, the first trait the rule names. (The comments also warn that an apparently isolated violation may indicate a pattern, a point developed in the section on isolated acts and patterns.)

The conduct alleged in Wieder v. Skala resembles the second version. The opinion recounts that when the plaintiff confronted a lawyer identified only as L.L., he acknowledged that he had lied about a real estate transaction and later admitted in writing that he had committed “several acts of legal malpractice and fraud and deceit upon plaintiff and several other clients of the firm.”⁵ The case arose under former DR 1-103(A), which required a lawyer who possessed knowledge, not protected as a confidence or secret, of a violation raising a substantial question as to another lawyer's honesty, trustworthiness or fitness to report that knowledge to a tribunal or other authority empowered to investigate or act on it.⁶ Lies to a client and admitted fraud and deceit on several clients speak directly to honesty and trustworthiness, the traits the reporting provision protects. A lawyer who knew of that conduct would have faced the duty that paragraph (a) states today.

The second feature comes from the words another lawyer. Paragraph (a) addresses a lawyer who knows of someone else's violation, so it does not itself require a lawyer to report the lawyer's own. That shape fits the rule's purpose. The comments describe the duty as the means by which members of a self-regulating profession start disciplinary investigations of violations they know about. They stress its importance where the victim is unlikely to discover the offense, and where an apparently isolated violation may be part of a pattern that only an investigation can uncover.⁷ The report carries a peer's conduct to the body able to investigate it. An answer that treats Rule 8.3(a) as a self-reporting rule misreads it.

Once both features are met, the report goes to the appropriate professional authority, which the comments identify as the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances.⁸ The confidentiality limit under Rule 1.6 and the other exceptions come later in this chapter.

Misconduct by a Judge

Paragraph (b) requires 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 fitness for office to inform the appropriate authority.¹⁰ The paragraph tracks paragraph (a). It likewise states an affirmative duty to report violations that are known to the lawyer.¹¹ The comments confirm the kinship: lawyers have “a similar obligation with respect to judicial misconduct,” and similar considerations apply to the reporting of it.¹² Because the structure is shared, the knowledge requirement and the substantial-question judgment taken up in the next sections apply to both paragraphs.

Judicial misconduct often falls on litigants who cannot see it. A party who loses a motion before a judge who has been paid has no way of learning why, which is the situation in which the comments say reporting matters most: where the victim is unlikely to discover the offense.¹³ The lawyers who appear before that judge may be among the few people positioned to see what happened.

The two paragraphs differ in three places, and each difference follows from the fact that the person reported holds an office:

The benchmark is the applicable rules of judicial conduct, in place of the Rules of Professional Conduct.
The seriousness measure is a substantial question as to the judge's fitness for office, in place of honesty, trustworthiness, or fitness as a lawyer.
The recipient is the appropriate authority, in place of the appropriate professional authority.

The first two differences work together. The benchmark is the body of conduct rules written for judges, and the seriousness measure asks whether the violation bears on the judge's fitness for that office. The third difference has practical consequences. Paragraph (b) drops the word “professional” and names no particular body, and the comments say that similar considerations apply to reporting judicial misconduct as apply to reporting a lawyer's, where the report goes to the bar disciplinary agency unless another agency is more appropriate.¹⁴ The reporting lawyer must therefore work out which authority is appropriate for the judge in question.

The word “applicable” in the benchmark ties the judge to the judicial conduct rules that govern that judge. Lisi v. Several Attorneys shows how a jurisdiction can put the same structure in its own words. The version quoted there says that a lawyer “having knowledge” that a judge has violated applicable rules of judicial conduct in a way that raises a substantial question as to the judge's fitness for office “shall inform the appropriate authority,” and a following paragraph provides that the rule does not require disclosure of information otherwise protected by Rule 1.6.¹⁵ “Having knowledge” differs in phrasing from the Model Rule's “who knows,” but the judge branch, the fitness-for-office measure, the recipient phrase, and the confidentiality carve-out are all there.