THE NEW “SQUEAL” RULE – Your duty to report ethics violations

We note that the language of this rule (which is posted on the KBA web site) does not require the filing of a formal complaint. It only requires a report to the Bar Counsel.        

 If you wish to file a formal complaint you can find the suggested KBA form at the KBA site under ETHICS.

 A formal complaint must be signed and notarized.   There is no such requirement in SCR 3.130 (8.3) for merely making a report to the Bar Counsel.

 The following rule provides “civil and criminal” immunity to the party reporting such information in good faith.

 An Attorney’s Duty to Report Ethical Violations

 SCR 3.130(8.3) Reporting professional misconduct

 (a) A lawyer who knows that another lawyer has committed a violation of the Rules of

Professional Conduct that raises a substantial question as to the lawyer’s honesty,

trustworthiness or fitness as a lawyer in other respects, shall inform the Association’s Bar

Counsel.

(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial

conduct that raises a substantial question as to the judge’s fitness for office shall report such

violation to the Judicial Conduct Commission.

(c) A lawyer is not required to report information that is protected by Rule 1.6 or by other law.

Further, a lawyer or a judge does not have a duty to report or disclose information that is received in the course of participating in the Kentucky Lawyer Assistance Program or Ethics Hotline.

(d) A lawyer acting in good faith in the discharge of the lawyer’s professional responsibilities required by paragraphs (a) and (b) or when making a voluntary report of other misconduct shall be immune from any action, civil or criminal, and any disciplinary proceeding before the Bar as a result of said report, except for conduct prohibited by Rule 3.4(f).

 

(e) As provided in SCR 3.435, a lawyer who is disciplined as a result of a lawyer disciplinary

action brought before any authority other than the Association shall report that fact to Bar

Counsel.

(f) As provided in SCR 3.166(2), a lawyer prosecuting a case against any member of the

Association to a plea of guilty, conviction by judge or jury or entry of judgment, should

immediately notify the Director of such event.

HISTORY: Amended by Order 2009-05, eff. 7-15-09; adopted by Order 89-1, eff. 1-1-90

SUPREME COURT COMMENTARY

2009:

 

(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 violations 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 more appropriate in the circumstances. Similar considerations apply

to the reporting of judicial conduct. Lawyers requiring assistance in determining the need to

report a violation 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) A lawyer who knows that a judge has committed a violation of the Code of Judicial Conduct

that raises a substantial question as to the judge’s fitness shall, at a minimum, file a report with

the Judicial Conduct Commission. The term “substantial” refers to the seriousness of the possible

offense.

(4) The duty to report professional misconduct does not apply to a lawyer retained to represent a

lawyer whose professional conduct is in question. Such a situation is governed by the rules

applicable to the client-lawyer relationship.

(5) The duty to report misconduct is an important aspect of self-regulation, and is intended to

achieve societal goals. In order to protect a lawyer who makes a report in compliance with the

Rule and to encourage a lawyer to make a voluntary report of other acts of misconduct, the Rule

provides qualified immunity to the reporting lawyer thereby removing the fear of retaliation by the

reported lawyer or judge. The Rule’s immunity provision is founded upon a similar rule of

immunity provided by SCR 4.300, Canon 3D(3) of the Kentucky Code of Judicial Conduct

Comments are closed.