South Carolina ethics opinion on RPC 8.3(a) – right answer but not the best articulation of the rationale

In July, a new ethics advisory opinion was issued out of South Carolina to address a question related to the obligation to report the misconduct of another lawyer, specifically what sort of timing is required.

South Carolina Ethics Advisory Opinion 16-04 addresses an inquiry from a lawyer (Lawyer A) who believes he has knowledge of a violation of RPC 3.3 by opposing counsel in litigation (Lawyer B) but is worried about the negative ramifications to his client if he makes a disciplinary report while the litigation is ongoing.  The South Carolina opinion offers the correct conclusion –“Lawyer A may wait until the conclusion of the case, or appeal, before making the report against Lawyer B if Lawyer A determines that a later report would be in the best interest of the client.”

The South Carolina opinion also correctly acknowledges in its discussion that Lawyer A’s client needs to consent to the report for it to even happen, but manages to truly miss an opportunity (in my opinion at least) to provide a thorough, and thoroughly helpful, treatment of why the fact that the ethics rules essentially give a veto to Lawyer A’s client must obviously mean that Lawyer A’s client’s interests could also justify delay in making a report.

After briefly acknowledging that a more than 10-year old Louisiana case represents the prevailing view that a report necessary under RPC 8.3 should be made “promptly,” the South Carolina opinion explains:

[It] believes it is appropriate for a lawyer to consider any potential adverse impact to his or client in determining the timing of a report against another lawyer. It is the opinion of this Committee that if Lawyer A believes the conduct of Lawyer B raises a “substantial question as to [Lawyer B’s] honesty, trustworthiness or fitness as a lawyer in other respects,” then Lawyer A must report such misconduct to the disciplinary authority. Because the Rule is silent regarding the timing of such report, Lawyer A may wait until the conclusion of the matter if Lawyer A determines immediate reporting may hurt the client. However, the misconduct should be reported “promptly” at the conclusion of the litigation or appeal.

I shouldn’t complain too strongly because, at least this opinion manages to explicitly acknowledge the need for client consent in the first place, and also as mentioned gets the answer right, but it still reads to me like a missed opportunity.  Resting everything on the idea that the rule is simply silent on timing is much less persuasive than elaborating on the natural way in which the necessary discussion between Lawyer A and his client about whether the client will let Lawyer A make a report at all can lead to a decision that the client will provide consent but only for a report to be made at a future time.

South Carolina has versions of RPC 8.3(b) and (d) that are substantively identical to the ABA Model Rule 8.3(a) and (c).  It also has a relevant, identical paragraph in its Comment to the Rule.  The two subsections of the rule, as confirmed by the comment language, work together to explain that, in a situation in which a lawyer knows of another lawyer’s violation of the ethics rules that raises substantial questions as to the other lawyer’s honesty, trustworthiness, or fitness to practice law, the lawyer has an ethical obligation to report the other lawyer.  And, that obligation is one for which the lawyer can himself be disciplined if he fails to make such a report.  But, and it is an important “but,” one that is quite often disregarded by lawyers and disciplinary counsel alike — Model Rule 3.8(c) [South Carolina’s RPC 8.3(d)] indicates that there is no such obligation to report (and thus there can be no punishment for remaining silent) if the report would require the lawyer to disclose RPC 1.6 information.  In any jurisdiction in which the scope of confidentiality is as broad as it is under the ABA Model Rules, this is the kind of exception with the potential to swallow the rule over which ethics nerds can argue for hours.

Accordingly, Comment [2] to RPC 8.3 in South Carolina (just like the ABA Model) explains that a lawyer ought to “encourage a client to consent to disclosure where prosecution would not substantially prejudice the client’s interests.  Thus, the South Carolina opinion could have gone into greater detail to explain that the only way to make a report about Lawyer B’s violation of RPC 3.3 would be to disclose information about Lawyer A’s representation of his own client and, thus, Lawyer A would have to seek and obtain his client’s consent before making the report.

The South Carolina opinion then could have turned to how such a conversation might go . . .  Lawyer A would explain the problem, the ethical obligation, and the client’s ability to say no to the report.  The client would likely ask Lawyer A questions about what the report would mean for the case and, as part of that, Lawyer A and client could well discuss and reach the conclusion that if the disclosure and report doesn’t happen until after the case is over, that it would make certain not to prejudice the client’s matter.  Thus, Lawyer A could fulfill the obligation to encourage the client to consent, and the client could provide the necessary consent to make the report but condition it upon the timing of the report.

“Damn near never…”

I mentioned back near the end of July 2015 that I would be participating on a panel at the Association of Professional Responsibility Lawyers’ Annual Meeting in Chicago.  It is always an honor to get to speak at an APRL meeting, and it was particularly an honor to share the stage with Eliza Rodrigues of Sedgwick, Gabe Miller of Advocates United, and Charles Mokriski of Proskauer Rose.

Fortunately, if you are interested in reading a pretty extensive write-up of some of the ground we covered during our session exploring the role of internal ethics counsel in law firms, the ABA/BNA Lawyers’ Manual on Professional Conduct has it and it is available without subscription here.

With such turns of phrase by me as a “messed up” rule and “Damn near never…” I managed to sound a lot more Southern then I tend to think I am . . . so lesson learned.

We never did manage to get into much of a discussion of the varying, and seemingly contradictory, approaches courts across the nation are taking to disqualification motions involving advance waiver language and other waiver issues.

C’est la vie.  Y’all.

TACDL’s judicial disciplinary complaint and what really makes it unusual

The Tennessean has an article today about a disciplinary complaint filed by the Tennessee Association of Criminal Defense Lawyers against a General Sessions judge in Nashville.  (General Sessions court in Tennessee is our small claims court, on the civil side, and on the criminal side of things tends to be a misdemeanor court.)  TACDL says that it is unprecedented for its organization to have done something like this against a sitting judge, and I have no reason to doubt that’s true.  You can read TACDL’s letter submitting the complaint here.  This is a fascinating story, and TACDL does a good job in the complaint in laying out the judicial ethics rules that appear to be implicated.  You can read the source material for more details about the contents of the email communication from the judge to the prosecutors that prompted the complaint, but I’d like to use this as an opportunity to make two points about Tennessee’s ethics rules and when they can actually require a lawyer to file a disciplinary complaint.

First, far too many lawyers who may remember that RPC 8.3(a) requires a lawyer in certain situations to file a complaint about another lawyer forget that our RPC 8.3(b) actually imposes a requirement for lawyers to have to file a disciplinary complaint in some circumstances against a judge.  RPC 8.3(b) imposes that requirement if the lawyer “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.”

Second, much more frequently overlooked even than the existence of RPC 8.3(b) is the impact of RPC 8.3(c) and Comment [2] on any such obligation of a lawyer.  Much more frequently overlooked even than the existence of RPC 8.3(b) is the meaning and impact of RPC 8.3(c) and Comment [2].  What makes this TACDL complaint really catch my attention is that the situation that led to this complaint is one of the few in which the exception to mandatory reporting provided by RPC 8.3(c) wouldn’t come into play.

RPC 8.3(c) and Comment [2] work together to explain that if a lawyer would have to disclose RPC 1.6 confidential information in order to make the disciplinary complaint, then the lawyer is not ethically required to do under RPC 8.3(a) or (b).  Because Tennessee’s RPC 1.6, like so many others, makes all information related to the representation of a client confidential, the exception built into RPC 8.3(c) can nearly always be used to swallow the rest of the rule’s requirement for reporting.  Comment [2] does exhort lawyers to “encourage a client to consent to disclosure where prosecution [of the disciplinary complaint] would not substantially prejudice the client’s interests” but the rule does not have any teeth in the event a lawyer decides not to encourage their client to do so.

Most of the time for lawyers, their only knowledge of an ethics offense by a judge (and for that matter of another lawyer) will come about in connection with representing a particular client.  As such, a lawyer trying to decide if they have an ethical obligation to file a complaint will almost always be a situation in which the lawyer would have to disclose some information about the representation of that client to make the report and, thus, can sidestep any ethical obligation to do so if they do not get their client’s consent.

But here the existence of this email sent by the judge appears to have been learned by other lawyers not in connection with representing a particular client but learning about it through media reports.  Thus, while the complaint itself does not say so, this is one of those rare instances in which a strong argument could be made that the lawyers for TACDL who signed off on the making of this complaint could actually be considered to have been ethically required to do so or risk committing their own violation of RPC 8.3(b).  That, more than anything, is what makes the situation truly unusual.

TN’s Simple Rule > NYC’s Lengthy Ethics Opinion on Same Subject

Last month, the Association of the Bar of the City of New York Committee on Professional Ethics put out a thorough Formal Opinion addressing when it is unethical for an attorney to threaten to file a disciplinary complaint against another lawyer.  While Formal Opinion 2015-5 is a well-written opinion overall, it is a sprawling one that spans some 6 to 10 written pages depending on the format in which you view it.  Truth is though it has to be that lengthy and complex because New York’s ethics rules lack the kind of clear ethics rule we have adopted in Tennessee on this very subject.

In Tennessee, after our 2011 revisions to the rules, RPC 4.4(a)(2) specifically applies the same standards to threats about disciplinary complaints as threats about criminal charges:  “In representing a client, a lawyer shall not … threaten to present a criminal or lawyer disciplinary charge for the purpose of obtaining an advantage in a civil matter.”  Thus, our rule is simple and straightforward.   Our rule only leaves room in a few places for hair-splitting.  Things like what constitutes a “threat,” and when is something being pursued to gain an advantage in a civil matter.  Both of those issues were things that the NYC opinion wrestles with a bit even though not in the context of a rule directly on point.  I tend to think they elucidate a very useful explanation of where to draw the line on whether something is a “threat” — “merely advising another lawyer that his conduct violates a disciplinary rule or could subject them to disciplinary action does not constitute a ‘threat’ unless it is accompanied by a statement that you intend to file disciplinary charges unless the other lawyer complies with a particular demand.”

Because New York’s otherwise most pertinent rule – New York Rule 3.4(e) — only extends to threatening to pursue criminal charges, the NYC Bar opinion ends up having to wrestle with lots of other issues to get to the relatively not-so-helpful conclusion that making a threat “may” violate the ethics rules:

  • It explains that it is unethical for a lawyer to threaten to bring a disciplinary complaint when New York’s Rule 8.3 would require reporting.  This requires some explanation because the threat is wrong not in how it treats the recipient of the threat but because the threat implies a willingness to not to do something ethically required of the one making the threat.  Of course, that only answers the question as to a specific set of threats threats to turn someone in for something that is the kind of serious ethical infraction that would trigger RPC 8.3 reporting obligations.
  • It discusses the usual litany of other rules not directly on point that can be a problem, such as RPC 3.1 which prohibits pursuit of frivolous claims or assertions (so a lawyer can’t threaten a frivolous disciplinary complaint in the same way they shouldn’t be threatening someone with the filing of a civil lawsuit they know is frivolous).
  • It discusses RPC 4.4(a)(1)’s prohibition on conduct that has no substantial purpose other than to harass or embarrass.  Which of course isn’t much helpful if you have questions about whether obtaining an advantage in litigation can be viewed as a substantial purpose.
  • It discusses various shades of RPC 8.4 including the idea that you cannot engage in a threat that would amount to the crime of extortion.

When all of those provisions are thrown into the kettle, then the NYC Bar opinion, like other jurisdictions that do not have a straightforward rule like Tennessee’s, hit on an overall notion that a lawyer has to have a good faith belief that there has been a disciplinary violation in order to be able to make the threat.  Again, though speaking practically that isn’t much help, because threats of pursuit of a disciplinary complaint about something that the threatening lawyer didn’t even have a good faith belief aren’t the kind of powerful threats likely to gain any real leverage.

So if the idea is that, as a matter of public policy those in a self-regulating profession ought not be able to threaten to wind up the springs of self-regulation in order to gain leverage in a civil proceeding, then Tennessee has done things the right way by simply adopting a rule that says in clear, straightforward terms that you can’t do that.