State Bar of Arizona Ethics Opinions
89-06: Reporting Misconduct
General comments on the extent of a lawyer's obligation to report another attorney's misconduct in light of In re Himmel (Ill. 1988).
The inquiring attorney, Attorney B, is employed as a Deputy County Attorney in the County Attorney’s Office of County X. He is apparently involved in civil litigation in which Attorney A represents the plaintiff. The inquiring attorney says that, in that litigation, one of the county's co-defendants is not represented by counsel. During the deposition of that co-defendant, he was asked by the inquiring attorney how many times the co-defendant had spoken with counsel for the plaintiff either in person or by telephone. Attached hereto as Exhibit A is an edited copy of the deposition testimony of the co-defendant submitted to us by the inquiring attorney.
We are further informed that later discovery revealed that the deponent had contacted plaintiff's counsel's office at least nine times; had entered into a settlement agreement with the plaintiff several months before the deposition; and had received a number of letters from plaintiff's counsel.
In a second factual setting, the inquiring attorney says that Attorney A, plaintiff's counsel, ". . . made blatant misrepresentations concerning the law to the Court." Attached hereto as Exhibit B is an edited copy of the transcript of the Court proceedings supplied to us by the inquiring attorney in which the misrepresentations allegedly were made. The inquiring attorney asserts that plaintiff's counsel had no legal authority to support his position, and that all case authority later offered by Attorney A in support of the proposition he had asserted in Court was case law dealing with the duties of an insurer to provide a defense for its insured.
Finally, the inquiring attorney advises us that the litigation in which these two alleged infractions occurred is still being actively litigated before the Superior Court in County X.
The inquiring attorney inquires as to his duty to report the alleged misconduct of his opponent to the State Bar or other appropriate authority under ER 8.3(a) of the Arizona Rules of Professional Conduct, particularly in light of the decision of the Illinois Supreme Court in In Re Himmel, 125 Ill. 2d 531, 533 N.E.2d 790 (1988). In particular, the inquiring attorney asks:
1. Did plaintiff's counsel's failure to advise of previous contacts between the unrepresented deponent and him violate ER 4.3 and, if it did, is it the kind of violation which Attorney B must report pursuant to ER 8.3(a)?
2. Did plaintiff's counsel's representation as to the authority in support of his position violate ER 3.3(a)(1) and, if so, is the inquiring attorney under a duty to report that misrepresentation of law to the State Bar of Arizona or other appropriate authority pursuant to ER 8.3(a)?
ETHICAL RULES INVOLVED1
ER 1.1. Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
ER 3.1. Meritorious Claims and Contentions
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for the extension, modification or reversal of existing law. ***
ER 3.3. Candor Toward the Tribunal
(a) A lawyer shall not knowingly:
(1) Make a false statement of material fact or law to a tribunal;
The advocate's task is to present the client's case with persuasive force. Performance of that duty while maintaining confidences of the client is qualified by the advocate's duty of candor to the tribunal. However, an advocate does not vouch for the evidence submitted in a cause; the tribunal is responsible for assessing its probative value.
1. We have, for the assistance of the Bar, included the Comments to the Rules sections as well as the Code Comparisons.
Misleading Legal Argument
Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. A lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities. Furthermore, as stated in paragraph (a) (3), an advocate has a duty to disclose directly adverse authority in the controlling jurisdiction which has not been disclosed by the opposing party. The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case.
ER 3.3(a) (1) is substantially identical to DR 7-102(A) (5), which provided that a lawyer shall not "knowingly make a false statement of law or fact."
ER 4.1. Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person;
ER 4.3. Dealing with Unrepresented Person
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.
ER 8.3. Reporting Professional Misconduct
(a) A lawyer having knowledge 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, shall inform the appropriate professional authority, except as otherwise provided in these rules or by law.
Self regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. Lawyers have a similar obligation with respect to judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can cover. Reporting a violation is especially important where the victim in unlikely to discover the offense.
If a lawyer were obliged to report every violation of the rules, the failure to report any violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. This rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent.A measure of judgment is, therefore, required in complying with the provisions of this rule. The term "substantial" refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is moreappropriate in the circumstances. Similar considerations apply to the reporting of judicial misconduct.
DR 1-103(a) provided that "A lawyer possessing unprivileged knowledge of a violation of a Disciplinary Rule shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation."
In responding to this inquiry, we must first remind the inquiring attorney and the Bar of our Statement of Jurisdictional Policies which provides in part that:
4. The Committee will not render opinions involving the questioned ethical propriety of the conduct of any attorney other than the inquiring attorney. Such opinions will be rendered only when requested by the Board of Governors, the Arizona Disciplinary Board, another Committee, or the Executive Director of the State Bar; a Local Administrative Committee; the Committee on Examinations and Admissions; an Arizona county or other local bar association; or a member of the Arizona judiciary (state or federal) before whom the questioned conduct of the member has occurred.
5. The Committee will not render opinions as to the ethical propriety of conduct of a member of the State Bar in a matter in which such conduct is involved in pending litigation which may determine or substantially affect the determination of the ethical questions involved. An exception will be made if the opinion is requested by the judge before whom the litigation is pending.
6. The Committee's jurisdiction being limited to the resolution of questions of professional and judicial ethics, it will not render opinions:
(a) On pure questions of law. If an inquiry involves a mixed question of law and ethics, the Committee may render an opinion.
To respond fully to this inquiry, in the manner apparently sought by the inquiring attorney, would require us to deviate from the limitations set by our jurisdictional policies. We decline to do so and, thus, decline to answer the specific questions posed by the inquiring attorney. Instead, we take this opportunity to comment on what may be a wave of pressure on attorneys to inform on one another, with an accompanying fear of possible suspension or disbarment if the attorney does not so inform.
The Supreme Court of Arizona has not yet squarely faced this issue. This Committee dealt with the problem in our Opinion No. 87-26 (December 30, 1987). However, Justice Corcoran is reported to have hinted that he views the holding in the Himmel case from Illinois favorably. He is reported to have said:
I want to talk to you about a serious subject. Am I my brother's keeper? And, it is always put to us as 'am I the bar's keeper, the court's keeper?' The Illinois case (Himmel), left little doubt that the answer to both questions is yes.
Verdier, Three Lauded; Corcoran Addresses Misconduct, The Maricopa Lawyer, June, 1989, p. 8.
Himmel is a very recent case in which the Supreme Court of Illinois, in a disciplinary proceeding commenced by the Administrator of the Illinois Attorney Registration and Disciplinary Commission seeking Himmel's suspension from the practice of law, overruled the Hearing Board's recommendation for a private reprimand, as well as the Review Board's recommendation for dismissal of the complaint. Instead, the Court suspended Mr. Himmel from the practice of law for a period of one year. Himmel's infraction arose from his discovery, through his representation of one Tammy Forsberg, that her former attorney, John R. Casey, had converted her share of the proceeds from the settlement of a personal injury claim Casey had handled for her. (Casey had been disbarred "on consent" prior to the hearing before the Hearing Board on the Administrator's complaint against Himmel, 533 N.E.2d at 791.)
Himmel failed to notify the Commission of Casey's conversion of Forsberg's funds. In addition, Himmel drafted an agreement which included a partial payment to Forsberg by Casey and an agreement by Forsberg not to initiate criminal, civil or attorney disciplinary actions against Casey.
Illinois practice at the relevant time was governed by DR 1-103(A) of the Code of Professional Responsibility. ER 8.3 of our own Rules of Professional Conduct seems to require more incisive inquiry by the lawyer who detects misconduct by a colleague than does DR 1-103(A). However, we find no practical substantive difference in the two provisions, as we believe they should be applied, or as DR 1-103(A) was applied in Himmel.
In that case, there was little doubt as to the severity of Casey's conduct. Certainly, Casey's conduct raised a ". . . substantial question as to (Casey's . . .) honesty, trustworthiness or fitness as a lawyer . . .".
In fact, both the Administrator of the Illinois Commission and the Supreme Court of Illinois commented that both Himmel and Ms. Forsberg were in violation of the Illinois Criminal Code's prohibition against compounding a crime. (533 N.E.2d at 745, 746)
The Court found that Himmel's failure to report Casey resulted in interference with the Commission's investigation of Casey and, thus, with the administration of justice. The Court speculated that early reporting by Himmel might have spared other members of the public from being victimized by Casey.
Comparing Casey's conduct and Himmel's failure to report -- indeed Himmel's active participation and concealment as evidenced by the settlement agreement Himmel drafted which included the "no prosecution" clause -- to the conduct complained of here, we find very little similarity.
Although, as noted earlier, we state no specific opinion on the questions submitted, we will use the two "infractions" which triggered this inquiry as illustrative of problems we foresee in too rigid an application of the principles enunciated by Himmel which were referred to by Justice Corcoran in his comments to the Maricopa County Bar Association.
In Exhibit A, the subject of the first question submitted, nowhere in the deposition testimony cited did Attorney B inquire of the witness whether the witness had contacted plaintiff's counsel's office; if he had, how many times he had done so; whether we had entered into a settlement agreement with the plaintiff; or whether he had received letters from plaintiff's counsel. Nor are we advised of the nature of the subsequent discovery which disclosed the fact that the witness had contacted plaintiff's counsel's office at least nine times; the fact that the witness had entered into a settlement agreement with the plaintiff; and the fact that he had received a number of letters from plaintiff's counsel.
Was the information received during later discovery obtained from plaintiff's counsel? Was plaintiff's counsel under an obligation during the deposition of the unrepresented co-defendant to instruct the inquiring attorney that he had failed to ask the right questions to elicit the information he was seeking?
As to the second inquiry, we find it difficult to construe plaintiff's counsel's promise to "come back and cite authority, specific authority" as a misrepresentation of legal authority. The colloquy continues in which Attorneys B and C and the Court characterize the argument Attorney A seems to be making in a number of ways. The Court, however, concludes that ". . . before we all shoot our big fat mouths off, we ought to read and see whether or not maybe an employer is in that position". And the Court further concludes that, "if in fact Mr. A's review of the law is correct and his cases say what he says, perhaps you should buy Mr. A lunch. But if they don't, he will buy you lunch".
Does the inquiring attorney suggest that a complaint must be made each time counsel, in argument, off the top of his head, or even relying on a specific line of cases, attempts to stretch the holding of the cases or perhaps mistakenly argues that the cases hold more than they actually hold?
We are unable to discern from the portion of the transcript supplied to us by the inquiring attorney the nature of the proceeding during which the colloquy called to our attention occurred. Surely, in County X, a motion for judgment on the pleadings or for summary judgment -- which is apparently what is being discussed in the transcript we are furnished -- must be supported by a written motion and memorandum. Under no stretch of the apparent intent of the Illinois Court's holding in Himmel, or upon a careful reading of the Comment to ER 8.3, can we find any violation by Attorney A which would require Attorney B to complain about him to the State Bar.
On the contrary, we believe that a careful consideration of the Comment to ER 8.3 and a review of our Opinion No. 87-26 will lead the inquiring attorney, and other members of the Bar, to a careful use of the judgment suggested in that Comment.
What Himmel tells us, and what Justice Corcoran apparently told the Maricopa County Bar, is that each of us must be aware of the possibility that our brethren at the bar are not infallible. We must all be sensitive to potential ethical violations which appear around us and in cases in which we are involved. In those instances where the violation appears sufficiently substantial as to raise questions as to the lawyer's honesty, trustworthiness or fitness as a lawyer, each of us is under an affirmative obligation to report that misconduct. Conversely, where the apparent violation is not of that stature, we should not burden the State Bar disciplinary staff with such minor complaints.
BY MR. B
Q. How many times have you spoken to Mr. A, either in person or by telephone, before today?
A. Once, today.
Q. How long did you speak with him before this deposition?
A. I have never spoken to him before, that I recall. I always talked to his secretary to verify the dates, times, and places that I was supposed to be.
Q. Did you ever speak with any investigators from his office?
A. I think one of his investigators, or secretary or something, had a conversation back in February, I think it was.
Q. What was that about?
A. Basically, I had got served a notice of default on this lawsuit and wanted to know what my recourse was in that I didn't know what the hell to do.
Q. Were you ever personally served with a summons and complaint in this matter?
A. Yes, sir.
Q. Was that in City X?
A. Yes, sir.
Q. Did you ever speak with any associates of Mr. A, anybody else from Mr. A's office?
A. None that I know of, sir.
MR. A : Neither did I.
THE COURT: Maybe that's new now, but --
MR. D: The statute was amended in '84.
MR. A: The statute was amended in '84, but still, if you look at the statute, the reasons the Court consistently laid out for administrative claims, they have nothing to do with an individual claim.
THE COURT: I agree with that.
MR. A: In any case, they didn't defend 0. 0's liability is set out in the complaint. We got summary judgment against him, and we are entitled to judgment in accordance with the complaint. Their contention is that if he is their agent and their agent is judicially determined to be negligent, they can't come back in and collaterally estop that judgment.
If the Court has any question about that specific premise, because I have butted my head for 20 years from time to time, I will come back and cite authority, specific authority, which I have been telling them all along. I don't understand why they have missed that authority.
MR. B: May I interpose? We have a similar motion with respect to H, and since they haven't worked out a deal, I would like to expound a little on what Mr. C said
MR. A: Wait a minute, Your Honor. We are talking about 0's issue.
THE COURT: No, we are not, because the same problem really applies with regard to H. H is another one that no one filed a notice of claim on. And also with regard to H, the County didn't defend on him. So I think he has a right to set forth what their position is and what the County's position is.
MR. B: Your Honor, basically he's attempting to use this judgment as a sword against the County on the proximate cause issue.
MR. A: Sure.
THE COURT: Of course. He may be able to do that. He's not doing it because he's trying to improve the caliber of legal writing in the State of Arizona.
MR. B: I understand what he's doing, Your Honor, but my point would simply be, he says, look, any time an employee acts, you have got to come in and defend or pay for it. Bull. My position is, it would be illegal for the County to do so, and in fact is. So what he's asking us to do is come in and defend a man and basically give away public funds to defend him.
THE COURT: That's a nice argument, but I think what he's basically saying, and I can understand it, his position is, it's not just the public. It's that if you have an employee who commits a certain act and there's a respondent superior responsibility, the employer, public or private, who doesn't defend the employee runs the risk of having issues determined on the employee's liability which affect him, and the only defense he may well have is, one, he wasn't an employee, or two, it was outside the scope of his employment, and that's a risk you run in not doing that.
MR. B: Your Honor, my point would be, it would be fine if you had a trial on the merits. Then it can be used against somebody else. But obviously here there has been no finding except by way of default. So there's been no determination on the proximate cause issue.
MR. C: There's been no determination on the proximate cause issue in front of Judge P. In fact, he said in chambers completely to the contrary.
THE COURT: I don’t care what Judge P says. What I think A is saying, and so far the only one who has indicated he has any legal authority to that effect is A, who says that the law is and the cases are that if you find liability against the employee, the employer is stuck unless he can show the employee was not acting in the course and scope of his employment.
My question, Mr. C, is real simple. Have you read some cases that say that isn't the law?
MR. C: First, that's not the issue -- no, I haven't, because I have not seen counsel's cases and I haven't researched it. But what I'm saying is, if you look at Judge P's order, it doesn't countenance any specific language with regard to proximate cause. That was made up by Mr. A in the form of the judgment. That's what I am objecting to.
THE COURT: I agree with you, and perhaps --
MR. C: We are going to argue about this when it comes to instructions. We are going to argue about this when it comes to motions in limine.
THE COURT: I well may just sign the order, strike the proximate cause, and then we will make a determination as to what that judgment means when we go to trial.
MR. C: Fine.
MR. A: That sounds reasonable, Your Honor.
MR. C: As long as you strike the proximate cause stuff.
THE COURT: I think instead of making all these arguments about what can and cannot be done, before we all shoot our big fat mouths off, we ought to read and see whether or not maybe an employer is in that position. If he chooses not to defend his employee, he can well get himself boxed. That may be one of the problems in making that choice.
MR. A: Strikes me as incredible that the State and County would have been in this lawsuit for two years, and during a time when they were refusing to defend their employee, and never research that point.
THE COURT: Come on, A. You have not only been a lawyer for many years, you have been a judge, and you know as well as I do that "that is incredible" is not one of the things that we say around here, because we have all seen all those incredible things.
Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceeding. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rules change, a different conclusion may be appropriate.
© State Bar of Arizona 1989
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