NEW RULE CREATES DUTY OF LAWYERS TO REPORT ETHICAL VIOLATIONS OF THE CODE OF PROFESSIONAL RESPONSIBILITY.

 

By Stan Billingsley, LawReader Senior Editor – June 20, 2009

 

One of the important new ethic rules applying to the legal profession, which became effective on June 15, 2009, makes an important change in the duty to report ethical violations to the KBA Inquiry Commission.

 

Until this new provision of the Code of Professional Responsibility became effective their was no duty of a lawyer to report a violation of the Code.

 

    A different rule has been applied to judges.  Canon Three of the Code of Judicial Conduct has long required judges to report ethical violations which come to their attention.

 

“(2) A judge who receives information indicating a substantial likelihood that a lawyer has committed a violation of the Kentucky Rules of Professional Conduct should take appropriate action. A judge having knowledge that a lawyer has committed a violation of the Kentucky Rules of Professional Conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects should inform the appropriate authority.”

 

   In an unpublished opinion written by Judge Taylor in 2008, and joined in by Judges Keller and Vanmeter the Court of Appeals said:

 

Amburn v. Delahanty, No. 2007-CA-000067-MR (Ky. App. 4/4/2008) (Ky. App., 2008)

 

“A lawyer does not have a duty to report what he believes to be unethical conduct against another lawyer. The Court does have such a duty to report unethical conduct if the circumstance presents itself. The Court has prepared a bar complaint regarding attorneys, Foster Haunz, Michael Schwartz and Jackson Andrews.”

 

As of June 15, 2009, the ruling in Amburn v. Delahanty is voided by an amendment to the Rules of Professional Responsibility.

 

NEW RULE EFFECTIVE JUNE 15, 2009:

 

II. SCR 3.130(8.3) Reporting professional misconduct

The proposed new rule SCR 3,130(8.3) shall read:

(a) A lawyer who knows that another lawyer has committed a criminal act or has engaged in conduct involving dishonesty, fraud, or deceit that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer shall report such act or conduct to the Association’s Bar Counsel.

 

OLD RULE:

 

 SCR 3.130(8.3) Misconduct

It is professional misconduct for a lawyer to:

(a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

(c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) State or imply an ability to influence improperly a government agency or official; or

(e) Knowingly assist a judge or judicial officer in conduct that is a violation of applicable Rules of Judicial Conduct or other law.

HISTORY: Adopted by Order 89-1, eff. 1-1-90

 

 

(Note the Old Rule was titled:  SCR 3.130(8.3) Misconduct   (and did not mention a duty to report violations.)

 

The new rule 8.3 now has a new title and a new provision which says:

 

II. SCR 3.130(8.3) Reporting professional misconduct

The proposed new rule SCR 3,130(8.3) shall read:

 

(a)   A lawyer who knows that another lawyer has committed a criminal act or has engaged in conduct involving dishonesty, fraud, or deceit that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer shall report such act or conduct to the Association’s Bar Counsel.

 

The language of the new commentary suggests that not every violation needs to be reported.

 

(New Supreme Court) Commentary:

(1) Self-regulation of the legal profession requires that members of the profession initiate a disciplinary investigation when they know that another lawyer has violated certain minimum standards of behavior as described in the Rule. 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 uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense.

(2) 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 exists in many jurisdictions but has proved unenforceable. The Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. Lawyers requiring assistance in determining the need to report an incident of misconduct may confer with their Supreme Court District Committee member. Pursuant to SCR 3.530(7) a lawyer’s communications with a District Committee member are confidential.

(3) Paragraph (a) of the Rule requires that a lawyer who knows that another lawyer has committed specified inappropriate acts, as defined in this Rule, report the facts of such conduct to Bar Counsel. While a measure of judgment in complying with the Rule is appropriate, the Rule and Comments are designed to encourage compliance and to provide clarity as to the types of conduct that must be reported to Bar Counsel.

 

 

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