DUTY OF ATTORNEYS TO REPORT ETHICAL VIOLATIONS OF OTHER ATTORNEYS – Does this apply to Bar Counsel’s Office?

By LawReader Senior Editor Stan Billingsley

Quis custodiet ipsos custodes” *1
We have had sources claim that the Bar Counsel has prosecuted claims  against attorneys who have allegedly committed violations of the Rules of  Ethics, and have failed to report their own violation. Our
research of the Supreme Court Rules find no such rule.
If anyone can cite a rule imposing on an attorney the duty of  “self-reporting” his/her own violations, please share their  authorities with us.(LawReader has previously published an article discussing
Kentucky Bar Ass’n v. Rorrer, 222 S.W.3d 223 (Ky.,  2007) (See Footnote *2 below). The Rorrer case would appear to  grant 5th. Amendment rights to an attorney. The case discusses the
right of attorneys not to incriminate themselves. This Supreme Court ruling  suggests that it may be unconstitutional to demand that an attorney report  his own violations.)
However, there is a rule, SCR 3.130(8.3), known popularly as the” Squeal  Rule”, which requires an attorney who has knowledge of an ethical violation of  another attorney
to report it to the Bar Counsel’s office.  A formal complaint  must be signed and notarized. There is no such requirement for merely making a  report to the Bar Counsel under the “Squeal Rule” SCR 3.130 (8.3).
The rule states:
“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.”
This rule would appear to apply to members of the Board of Governors,  attorney Members of the Inquiry Commission, KBA Ethics Trial Commissioners, and  attorney employees of the Bar Counsel’s office.
The argument goes that every attorney must report possible ethics  violations by “another attorney”. There is no exception to this rule for KBA  officials and Bar Counsel office attorneys.
The firing of the Bar Counsel, Linda Gosnell, on November 21, 2011, has not been explained by the KBA Board of Governors, or the KBA  President Maggie Keane.
Only the disclosure of the reasons the Board of Governor’s discharged Linda  Gosnell will reveal if any members of the KBA or Bar Counsel’s office have failed to comply with SCR 3.130
(8.2).
The possibility, that the Bar Counsel’s office is totally in charge of  enforcing SCR 3.130(8.2) against themselves, if they had knowledge of any  ethical violations of the former Bar Counsel, is not reassuring.
It appears  clear from the reading of the “Squeal Rule” that if any attorney in the Bar  Counsel’s office had knowledge of an ethical violation by the former Bar  Counsel, that they have a duty to report it to the Bar Counsel’s
office. We  acknowledge that any pending charge being handled or investigated by the Bar  Counsel’s office must remain confidential until the Trial Commissioner had made  a finding. Only then could such a charge be disclosed to
the public.
Once again this situation brings into question the justification for the  secrecy rules protecting the KBA attorney discipline process.
We have no knowledge of any violation of SCR 3.130 (8.2) by anyone.  We have no knowledge of any ethical violation by the former Bar Counsel.
We are merely discussing the Supreme Court Rules which appear to be  deficient in that they allow a system where the Bar Counsel’s office polices
itself.
The possibility of a violation of SCR 3.130(8.2) will likely never be revealed if the KBA continues to refuse to publically announce their reasons for  terminating Linda Gosnell.
We would argue that the current Supreme Court Rules regarding attorney discipline procedures are a mess. If the justification for attorney discipline rules are to protect the image of the legal profession, the current process
fails miserably. The public and members of the Bar and the public are  not likely to be reassured that all ethics violations will be properly investigated.
***
*1-Quis custodiet ipsos  custodes? is a Latin  phrase traditionally attributed to the Roman poet Juvenal from his  Satires (Satire VI, lines 347–8), which is literally translated as
“Who will guard the guards themselves?” Also sometimes  rendered as “Who watches the watchmen?”, the phrase has other
idiomatic translations and adaptations such as “Who will  watch the watch-guards?” In modern usage, it is frequently associated with the
political philosophy of Plato and the problem of political corruption. – Wikipedia
*2-Kentucky Supreme Court Suggests Attorney Defending Against  Ethics Complaint May Demand His Rights Under 5th. Amendment Not To Incriminate
Himself Read  Story
–>
Kentucky Bar Ass’n v. Rorrer, 222 S.W.3d 223 (Ky., 2007)
Rorrer poses a more difficult question on his conviction for failing to
respond to the KBA’s request for information. Although his criminal conviction
had been
finalized, Rorrer was in the process of appealing his sentence
during much of the attorney discipline process. And Rorrer’s response to the
charges against him alleged that he did not answer the initial complaint because
he wanted to
exercise his Fifth Amendment right to avoid self-incrimination.
But Rorrer did not raise this self-incrimination argument until after the
Inquiry Commission had issued the charges.
Obviously, each attorney is obligated to respond to the KBA’s
lawful request for information involved in a disciplinary
investigation.12 But the
Fifth Amendment guarantees each person a
right to avoid self-incrimination.13 In certain cases, therefore,
there is a conflict between an attorney’s
obligation under SCR 3.130(8.1)(b)
to respond to a lawful request for information in an attorney discipline matter
and the attorney’s constitutional
right to avoid
self-incrimination.

 

 

Comments are closed.