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September 24, 2013

Professional Misconduct: To Report or Not to Report

by WSBA
whistle
Do you have an ethical obligation to report another lawyer’s RPC violation? What about your own misconduct?

whistleLawyers should report professional misconduct of other lawyers or judges to the Washington State Bar Association when they know of a serious violation of the Rules of Professional Conduct (RPC). In Washington, however, it is not mandatory that a lawyer report such professional misconduct. In other words, Lawyer A’s failure to report an ethical transgression by Lawyer B will not subject Lawyer A to discipline for non-reporting. While this approach differs from that of most U.S. jurisdictions, it has been Washington’s position since the adoption of our RPC in 1983.

Under Washington’s rule,

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, should inform the appropriate professional authority. RPC 8.3(a) (emphasis added).


The same language is found in RPC 8.3(b), the provision about reporting judicial misconduct. It is clear from the comments to the rule (and its drafting history) that “should inform” in this context is permissive: “Lawyers are not required to report the misconduct of other lawyers or judges.” RPC 8.3, comment [1].

By contrast, Rule 8.3 of the American Bar Association’s (ABA) Model Rules of Professional Conduct uses the phrase “shall inform.” In the 48 U.S. jurisdictions that have adopted the ABA version of the rule (sometimes facetiously called the “squeal rule”), a lawyer must inform the appropriate professional authority in order to initiate a disciplinary investigation. A failure to do so can result in discipline of the non-reporting lawyer. In a landmark 1988 case known as In re Himmel, an Illinois lawyer was suspended for one year for failure to comply with the reporting obligation. The Himmel case resulted in a “flurry” of lawyer-filed grievances in the state of Illinois.

Washington, California, and Georgia comprise a very small minority of jurisdictions that have rejected mandatory reporting of professional and judicial misconduct. This does not mean that Washington’s ethics rules are intended to discourage reporting. As the comments to RPC 8.3 make clear, members of the legal profession ought to report misconduct to the appropriate disciplinary authority “when they know of a serious violation” of the RPC (or the Code of Judicial Conduct); a failure to report “may undermine the belief that lawyers should be a self-regulating profession.” RPC 8.3, comments [1] & [2]. Naturally, even this aspirational responsibility to report does not extend to a lawyer retained to represent the lawyer whose conduct is in question. RPC 8.3, comment [4]. Nor, under RPC 8.3(c), may a Washington lawyer report misconduct if doing so would require the lawyer to disclose confidential client information. RPC 8.3(c).

Self-reporting Misconduct

There are two situations when a lawyer is required to make a “self-report” about the lawyer’s own conduct: (1) after having been disciplined in another jurisdiction, and (2) when the lawyer has received an “overdraft notification” involving a trust account. See Rules for Enforcement of Lawyer Conduct 9.2(a) and 15.4(d). In addition, effective January 1, 2014, a Washington lawyer convicted of a felony must report that conviction within 30 days. See Rules Adopted but not yet effective (Rules for Enforcement of Lawyer Conduct 7.1(b).

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