By Mitchell T. Borkowsky
Reprinted with Permission by the Nassau County Bar Association.
Quite some time ago, while working as counsel to the New York State Grievance Committee for the Tenth Judicial District, I received an anonymous letter from an attorney reporting disturbing conduct of another attorney. It was the middle of February, and, as reported by the attorney, he was on the railroad returning from a meeting in NYC when an inebriated man entered the train car wearing nothing but boxer shorts, a short-sleeve Hawaiian shirt, a diving mask, snorkel, and flippers. The man flip-flopped through the train, raging against the world but particularly against attorneys, judges, and the legal system. The reporting attorney was shocked to recognize the man as an attorney he frequently saw in court. In an exercise of compassion and concern, and with an inchoate sense of professional obligation, the attorney felt compelled to report what he had witnessed to the Grievance Committee.
Although no disciplinary investigation was initiated against the purportedly inebriated attorney, efforts were made to communicate with him and get him help through the local bar association’s confidential lawyer’s assistance program. When contacted, the attorney acknowledged he had a problem, was receptive to assistance, and agreed to have someone from the program reach out to him. A connection was made, and the attorney began working his way toward sobriety and good health. Hopefully, that man has prospered in the intervening years without incident or relapse.
I’m always reminded of that story when dealing with attorneys struggling with alcoholism, substance abuse, or other physical or mental impairments. Just as often, however, the story comes to mind when I am asked by an attorney whether he or she is obligated to report alleged misconduct of another attorney. This question arises very frequently, particularly in litigated matters where attorneys often feel their adversaries have crossed an ethical line. Sometimes, the attorney is just venting or seeking an objective viewpoint; on rarer occasions, the attorney will appear to be looking to manufacture leverage in the litigation without a reasonable basis, an ill-conceived, if not unethical, act in its own right.[1] In only a handful of instances have I viewed the related misconduct as one warranting referral to the disciplinary authorities.
The Duty to Report is Limited
Generally, the duty of an attorney to report misconduct by another attorney is very limited under the New York Rules of Professional Conduct [22 NYCRR 1200]. Rule 8.3 requires a lawyer to report knowledge of another lawyer’s violation of a Rule of Professional Conduct to a tribunal or other authority empowered to investigate or act upon such information if: (1) the rule violation raises a substantial question as to the offending lawyer’s honesty, trustworthiness, or fitness as a lawyer; and (2) the information is not privileged or confidential by virtue of it having come from a client or as a result of involvement with a bona fide lawyer assistance program. Accordingly, in all cases, determining whether you are obligated to report another attorney’s misconduct requires an analysis of the elements of Rule 8.3.
Preliminarily, Rule 8.3 provides that you do not necessarily have to report misconduct to a disciplinary authority. If the other elements of the rule are satisfied, bringing the information to the attention of a tribunal with the power to investigate or act upon such information will suffice. In a litigated matter, this means advising the Court in which the matter is pending. For non-litigated matters, the rule contemplates reporting the misconduct to the appropriate disciplinary authorities, which, in New York, usually means the Grievance Committee or Appellate Division in the jurisdiction where the alleged misconduct occurred or in which the offending lawyer practices or is admitted.
Oftentimes, when the alleged misconduct is intertwined with pending litigation, the Court may already be aware. Depending on the nature of the misconduct and the stage of the litigation, the Court may direct the reporting attorney to promptly notify the appropriate Grievance Committee rather than interrupt or sidetrack the pending action. If the Court does examine the conduct and finds misconduct, the Court may contact the Grievance Committee directly, instruct the complaining attorney to do so, or require the offending attorney to self-report. Whichever is the case, the Grievance Committee will do what it does whenever it receives a complaint: make an independent determination as to whether to open an investigation, hold the matter in abeyance pending the resolution of the litigation, or decline to investigate outright.
First-Hand Knowledge of Serious Misconduct
As for the other elements of Rule 8.3, first and foremost, you must have first-hand knowledge that the other attorney engaged in misconduct or violated a rule requiring disclosure.[2] Your knowledge and information cannot be based on a feeling, belief, suspicion, or hearsay. If you do not personally know that the attorney did, in fact, violate a rule, then you are not required to report under Rule 8.3.
Furthermore, even if you do have personal, first-hand knowledge of the misconduct, if reporting would require that you disclose confidential information of a client under Rule 1.6, whether it be the offending attorney or another client unwilling to consent to disclosure, or if the information was obtained through your involvement in an accredited lawyer’s assistance program, you are not required to report the misconduct.
Assuming, however, that you are not absolved of the obligation to report based on the extent to which you personally know of the misconduct or the manner in which you obtained the information, the most important and difficult element of Rule 8.3 is determining whether the alleged rule violation is one that raises a “substantial question” as to the offending “lawyer’s honesty, trustworthiness, or fitness as a lawyer.”
Essentially, the rule requires attorneys to report serious acts of misconduct, not minor acts or rule violations that do not implicate an attorney’s integrity or fitness. Some obvious examples of serious misconduct that must be reported are escrow defalcations, criminal activity, fraud on the Court, and repeated and consistent neglect of client matters.[3] Although you can always report nonserious misconduct, you would not be in violation of Rule 8.3 if you have a reasonable, good faith belief that the conduct did not meet the threshold and chose not to do so.
Notably, in instances where you are not obligated to report the alleged misconduct of another lawyer, you may use the information in any way you, in your professional judgment, deem appropriate, including reporting the conduct or promptly confronting the offender.[4] In New York, while threatening to file a criminal complaint against someone to gain advantage in civil litigation is expressly prohibited by the rules, threatening to file a grievance complaint is not per se prohibited, so long as the alleged misconduct is not the sort of misconduct that must be reported under Rule 8.3 in the first instance, and provided you do not make a criminally “extortionate” threat.[5] To that end, there is a significant difference between threatening to file a grievance complaint alleging neglect against an attorney who is refusing to return a disputed fee to your client and threatening to notify the Grievance Committee that the attorney is behind in child support obligations if he does not return the fee to your client.
Moreover, attorneys contemplating threatening to file a complaint of misconduct based on a suspicion or a belief should take care that they are not merely using the disciplinary process for a nefarious or underhanded purpose, or out of spite, and without a reasonable basis, as doing so may, itself, violate the Rules of Professional Conduct.[6]
The decision whether to report misconduct of another attorney is as nuanced as the factual scenarios are endless. Whether an alleged violation raises a “substantial question” as to the offending attorney’s “honesty, trustworthiness, or fitness as a lawyer” must be determined on a case-by-case basis. Historically, there have been a limited number of reported cases where an attorney has been charged and publicly disciplined for failing to report under Rule 8.3.
Usually, public discipline is imposed where the failure to report is an aggravating factor in a matter where the disciplined attorney was involved in the underlying misconduct him or herself. In Matter of Lodes,[7] an attorney was suspended for three years for, among other things, failing to timely report a financial kickback scheme involving himself and a State Senator who was also an attorney. In Matter of Graziano,[8] a suspended New Jersey attorney was reciprocally suspended in New York for one year for, among other things, failing to report that his New Jersey firm was participating in a prohibited fee sharing arrangement and for giving less than candid testimony to the disciplinary authorities.
The number of attorneys who are investigated and privately disciplined by Grievance Committees for failing to report misconduct of other attorneys is unknowable given the confidential nature of such proceedings;[9] however, it is likely that such private discipline would also be imposed ancillary to other allegations and findings.
Self-Regulating and Preserving the Integrity of the Profession
Underpinning the strict and limited mandatory reporting requirement under Rule 8.3 is the desire to have attorneys self-regulate the profession in order to preserve its integrity and ensure that the disciplinary authorities are not overrun with minor complaints by attorneys against one another.
The lawyer who reported the inebriated attorney referred to above was correct in doing so. Not because alcoholism implicates anything about honesty or trustworthiness or violates a particular rule of professional conduct, but because an attorney raging against lawyers, judges, and the legal system while publicly intoxicated in the manner described was someone in need of help. He also was engaged in conduct adversely reflecting on the legal profession and, some might argue, his own fitness as a lawyer. Significantly, attorneys who struggle with alcohol dependence or other substance abuse issues are substantially more likely to commit malpractice or face disciplinary action.[10] That the attorney obtained necessary help within the same system speaks volumes as to the efficacy of the profession’s efforts at self-regulation and self-preservation.
Conclusion
In conclusion, although attorneys are mandated by Rule 8.3 to report professional misconduct of other attorneys, the circumstances giving rise to the obligation are purposely circumscribed. Attorneys should ensure that all elements of Rule 8.3 are satisfied and that they are acting in good faith before deciding whether a report is necessary.
Mitchell T. Borkowsky provides representation to lawyers being investigated or prosecuted by the state grievance committees for alleged ethical or professional misconduct. He is the former Chief Counsel to the New York State Grievance Committee for the Tenth Judicial District of the Supreme Court, Appellate Division, Second Department and a member of the Nassau and Suffolk County Bar Associations’ Ethics Committees, and the New York State Bar Association’s Task Force on Attorney Well-Being: Public Trust and Ethics Working Group. Mr. Borkowsky can be reached at Mitch@myethicslawyer.com
1. NY City 2015-5; NY State 854 (2011); NY State 635 (1992)
2. NY City 2015-5; NY State 480 (1978)
3. N.Y. City Bar Opinion 1995-5 (1995)
4. Nassau County 98-12
5. NY City 2015-5; American Bar Association Formal Opinion 94-383
6. NY City 2015-5; NY State 854 (2011); NY State 635 (1992).
7. 118 A.D.3d 54 (2d Dept 2014)
8. 87 A.D.3d 283 (2d Dept 2011)
9 N.Y. Jud Law 90(10)
10. Krill, P. R. (Fall 2014). If There is One Bar Lawyers Cannot Seem to Pass: Alcoholism in the Legal Profession. The Brief (American Bar Association), Volume 44, Number 1.