Lawyers Turning in Other Lawyers for Violating Rules of Professional Conduct
There are many ways a grievance, or professional disciplinary complaint, can get filed against a lawyer. The disciplinary authority can start an investigation itself, which happens often in situations where there is an overdraft on an escrow account. Clients or former clients can file complaints airing grievances real or perceived. Other times a judge will initiate a complaint against a lawyer who appeared in their court. As a lawyer who represents other lawyers in these matters, I have represented clients in proceedings arising from all these different directions.
Another circumstance that also arises, and could result in a disciplinary complaint being filed, is when a lawyer or law firm feels they are obligated to file a complaint against another lawyer. Many jurisdictions have disciplinary rules similar to Maryland Rule 8.3(a) that governs a lawyer obligation to turn in a colleague. Maryland Rule 8.3(a) states that:
"A lawyer who knows that another lawyer has committed a violation of the Maryland Lawyers' Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority."
This is a difficult issue and any lawyer or firm contemplating the need to file a complaint against a colleague is well advised to seek guidance before acting. It is not possible to sufficiently address all the issues that can arise in a blog post. But here are things I have seen that I consider wise, depending on the circumstances. Sometimes when a professional issue comes to the attention of a law firm about an employee, the firm will want to seek its own lawyer, and consider offering to pay for its employee to have a lawyer as well while the interested parties work through the question of whether a complaint must be filed. Sometimes it might be possible to offer a lawyer the opportunity to turn themselves in, and “self-report” to an entity like Maryland’s Attorney Grievance Commission. Other times, when one lawyer feels the need to possibly report another, a viable option is to write to the lawyer who may have violated the rules, explain the nature of the issue, and offer that lawyer an opportunity to explain.
Through all of this, it is important to note that many jurisdictions, like Maryland and D.C., limit a lawyer’s obligation to report a colleague to situations where one “knows” another lawyer has committed a violation of the rules that has a “substantial” effect on the lawyer’s fitness. In my opinion, it would be unwise to read this rule in a way that imposes any kind of formal obligation on lawyers to undertake investigations of other lawyers when something seems unusual but there is no known rule violation and a possible plausible explanation. It is more likely this Rule is designed to prevent lawyers from covering up for their colleagues in the face of an illegality or obvious professional misconduct. On the other hand, sometimes whether a lawyer or law firm “knows” something, or should “know” it, can fall in a gray area. How “substantial” the issue may be is another question that is difficult to assess. The stakes can be high for all interested parties. No lawyer or law firm in that situation should feel like they are making these decisions alone. Seeking guidance in making these decisions is one way an employer can show a good faith attempt to comply with the rules without, yet also protect themselves from potential pitfalls in the process.