Legal Ethics Memorandum

Unlike most professions, the legal profession is self-governing in that it is regulated by other lawyers and judges instead of other outside agencies or the government. Therefore, it is imperative that lawyers be governed by established rules of conduct in order to maintain the highest level of professionalism necessary to warrant integrity and credibility in our justice system.     

The State of Columbia is in the process of drafting its Rules of Professional Conduct.  The Legal Ethics Subcommittee of the legislature has identified several ethical problems involving professional misconduct on the part of licensed lawyers.  The Subcommittee has requested information regarding existing governing ethical rules for these particular concerns. The four issues are as follows:

1. What are the governing ethical rules for a non-practicing lawyer such as a legislator or law professor who commits misconduct?
2. What are the governing ethical rules for a practicing lawyer who commits misconduct that does not involve the practice of law?
3. Do lawyers have a duty to report other lawyers who commit misconduct to the Bar?
4. Does a lawyer who learned of misconduct from her client and was asked not to report the misconduct have a duty to report the misconduct to the Bar?

The first issue is related to non-practicing lawyers and their liability if they commit misconduct.  According to the ABA Committee on Ethics and Professional Responsibility, Formal Opinion 04-433 (05/25/04), a non-practicing lawyer such as a law professor or a legislator remains subject to the disciplinary rules of a practicing lawyer as long as the non-practicing lawyer remains licensed by the Bar.  To illustrate, in the Magar case, the Supreme Court of Oregon upheld a disciplinary suspension of an inactive member of the Bar. In re Magar, 337 Or. 548 P3d (2004).  The same court also held in the Smith case that an inactive attorney remained subject to the disciplinary rules.  In re Smith, 318 Or 47, 861 P2d 1013 (1993).  Therefore, it is clear that as long as a lawyer remains licensed by the Bar irrespective of their inactivity in the practice of law, they remain subject to the disciplinary rules held by the Bar.

The second issue involves misconduct on the part of a lawyer where the misconduct does not involve the practice of law.  Model Rule 8.4(b) clearly outlines these issues: “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”  Therefore, a licensed lawyer is subject to disciplinary action for acts of misconduct committed by the licensed lawyer whether related to his practice or in a personal setting if the misconduct involves dishonesty, lack of trust or lack of fitness as a lawyer.

The third issue involves a duty to report misconduct on the part of another attorney.  First, it is important to note that the rules governing active attorneys are the same for non-active attorneys as long as they are licensed by the Bar.   Model Rule 8.3 governs this question by requiring a lawyer to report the misconduct of another lawyer if it raises a “substantial question” as the honesty, trustworthiness or fitness of that lawyer.  As noted, the scope of the rule encompasses non-practicing lawyers as long as they remained licensed.  This issue again hinges on the fact that as long as an active or a non-active lawyer remains licensed by the Bar, they remain subject to the disciplinary rules.  Here, the key to holding a lawyer responsible for their actions, not related to their law practice, revolves around honest, trustworthiness or fitness of being a lawyer.  If a “substantial question” as to these issues is raised, then the threshold of rule will be met and the lawyer will be subject disciplinary action.  Further, a Hawaii Bar Journal article titled, Ethics and Issues, states that an attorney is required to inform the Office of Disciplinary Counsel if he learns of misconduct on the part of a licensed active or inactive attorney.  Carole R. Richelieu, Ethics & Issues, 9 Hav. B.J. 18 (2005). 

         However, in California, no such duty to report exists.  So as you can see, states differ in the issue of duty to report misconduct on the part of a licensed active or inactive attorney.  The majority view and the most prudent view would be to provide for such duty to report in the Rules of Professional Misconduct.