United States: Code Of Law: If You See Something, Say Something

The legal profession's system of self-governance relies in part on what is effectively an "honor code" for attorneys. Specifically, when an attorney becomes aware of misconduct by another attorney, many states require that the attorney report the violation to the applicable bar authority and even discipline attorneys for their failure to report. Notably, however, Georgia applies a permissive standard, whereby attorneys are encouraged to report but are not required to do so.

Regardless of whether reporting is mandatory or permissive, an attorney that learns that another attorney destroyed evidence or misappropriated client funds, for example, may feel obligated to alert the bar. However, the question of whether reporting is appropriate (or required) involves a number of considerations depending on the circumstances and the jurisdiction.

Most notably, an attorney can consider whether reporting is consistent with the ethical duties owed to her or his clients. Even in jurisdictions where reporting is mandatory, reporting can be excused under certain circumstances in order to protect the client's confidential information. In permissive jurisdictions such as Georgia, an attorney or law firm may nonetheless choose to report, but first should consider whether reporting is permitted under the ethical rules and is in the best interests of the client.

The Georgia Rule: encouraged, but not mandatory

Georgia Rule of Professional Conduct 8.3(a) provides that "[a] lawyer having knowledge that another lawyer has committed a violation of the Georgia Rules of Professional Conduct that raises a substantial question as o that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, should inform the appropriate professional authority."

While this rule is nearly identical to the corresponding Model Rule, the notable exception is that the Model Rule states that an attorney with such knowledge "shall"—instead of Georgia's "should"—inform the appropriate professional authority, thus establishing a mandatory reporting requirement. Further, unlike the Model Rule, the Georgia rule specifically states that "[t]here is no disciplinary penalty for a violation of [Rule 8.3]." Thus, while reporting may be encouraged, an attorney does not risk disciplinary action for her or his failure to report.

Think before reporting

Although reporting may not be mandatory in Georgia, reporting can nonetheless be important for many reasons, especially where the observed violation "may indicate a pattern of misconduct that only a disciplinary investigation can uncover" or where "the victim is unlikely to discover the offense." See Georgia Rule of Professional Conduct 8.3, Comment [1]. For example, if an attorney learns that another attorney misused client trust funds, reporting may be the only way to make that client whole and to help other clients victimized by the attorney.

However, even in situations where reporting may appear appropriate (and moral), the issue is made complicated where reporting would result in the disclosure of client confidences and secrets. While the Model Rules expressly state that reporting is not required where it would violate Rule 1.6 (which governs client confidences and secrets), the Georgia version of the rule does not similarly remind attorneys to ensure that reporting is consistent with the obligations owed by attorneys to their clients. Nonetheless, Georgia attorneys can still remain vigilant.

Indeed, if an attorney becomes aware of misconduct by a colleague at their firm, it may be impossible to report the misconduct without revealing confidential information regarding the firm's representation of the client. Absent client consent, reporting might even be improper.

Instead, where there is a concern that reporting would disclose confidential information, law firms in Georgia can consider whether the misconduct is capable of being addressed internally. The firm may also need to ensure that the client is fully informed regarding any issues that may affect the representation.

Reporting issues can also be tricky when the misconduct is committed by opposing counsel. A decision to report opposing counsel in the context of a heated dispute could be viewed as an attempt to gain a tactical advantage, especially where the attorney cannot claim that she or he was obligated to report the misconduct (as is the case in jurisdictions that require reporting).

Considerations in Mandatory Reporting States

As noted, attorneys in jurisdictions that have adopted the mandatory reporting requirement set forth in Model Rule 8.3 must nonetheless consider whether reporting can be achieved without disclosing any client confidences. However, in such states, there are a number of other issues to consider before determining whether the obligation to report has even been triggered.

For example, while the District of Columbia requires reporting, it has made clear that the requisite "knowledge" to trigger reporting will not be construed broadly. Instead, a lawyer is required to report misconduct "only if she has a clear belief that misconduct has occurred, and possesses actual knowledge of the pertinent facts." D.C. Ethical Op. 246 (internal citation omitted). Mere hearsay or suspicion that another attorney has violated her or his ethical duties thus is unlikely to rise to the level of reportable misconduct.

However, if there is an obligation to report and it can be achieved without disclosing client confidences, then attorneys would be well-served to report promptly, as illustrated by the Louisiana Supreme Court's decision in In re Riehlmann, 891 So. 2d 1239 (La. 2005).

In Riehlmann, an attorney learned that a former prosecutor (and close friend) had suppressed exculpatory evidence in a case that led to a conviction. The attorney urged his friend to admit what happened, but the former prosecutor died before revealing his own misconduct. Five years later, after the convicted defendant's attorney uncovered the missing evidence, the reporting attorney wrote an affidavit stating that the prosecutor had intentionally suppressed the evidence. The defendant was a month away from his execution date.

In considering whether the attorney should be disciplined for violating Louisiana's mandatory reporting requirement, the Louisiana Supreme Court observed that the purpose of Rule 8.3 is not served unless it "is read to require timely reporting under the circumstances presented." Thus, the court sanctioned the attorney for his failure to timely report the prosecutor's ethical violation.

Although Riehlmann involved extreme circumstances, it demonstrates that attorneys practicing in jurisdictions where reporting is mandatory cannot afford to simply bury their heads in the sand. However, attorneys in Georgia and other permissive reporting jurisdictions have a different set of considerations and should consider all the relevant factors when deciding whether to report.

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