SQUEAL RULE APPLIES TO LAWYER, BAR COUNSEL, & JUDGES

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

By LawReader Senior Editor Stan Billingsley Feb. 29, 2013

“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
–>
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.

KENTUCKY BAR ASSOCIATION

Ethics Opinion KBA E-430 Issued: January 16, 2010

SUBJECT: A LAWYER’S DUTY TO REPORT PROFESSIONAL MISCONDUCT OF OTHER LAWYERS AND JUDGES

Question I: Under what circumstances does SCR 3.130 (8.3) impose a duty to
report professional misconduct of others?
Answer: See discussion in Section I.

Question II: When does a lawyer “know” that a violation has occurred?
Answer: See discussion in Section II.

Question III: What constitutes a “substantial question” under Rule 8.3?
Answer: See discussion in Section III.

Question IV: Does a lawyer have a duty to report conduct unrelated to the
practice of law or to judicial duties?
Answer: See discussion in Section IV.

Question V: Does a lawyer have a duty to report information protected by SCR
3.130(1.6) or other law, or information received in the course of
participation in the Kentucky Lawyer Assistance Program
(KYLAP) or the Ethics Hotline?
Answer: See discussion in Section V.

Question VI: Does a lawyer have a duty to self-report his or her own misconduct
or that of an associate?
Answer: See discussion in Section VI.

Question VII: Does a lawyer have a duty to report the misconduct of a suspended
or disbarred lawyer?
Answer: See discussion in Section VII.
Question VIII: Does a prosecutor have additional responsibilities under Rule 8.3?
2
Answer: See discussion in Section VIII.

Question IX: Is the reporting lawyer immune from civil or criminal liability?
Answer: See discussion in Section IX.

Question X: What are the procedures for reporting a violation and when must
the report be made?
Answer: See discussion in Section X.

References: SCR 3.130 (Preamble); SCR 3.130 (1.0) (Terminology); SCR
3.130 (1.5) SCR 3.130 (1.6); SCR 3.130 (3.3); SCR 3.130 (4.1);
SCR 3.130 (5.3); SCR 3.130 (5.5); SCR 3.130 (8.3); SCR 3.130
(8.4); SCR 3.166; SCR 3.453; SCR 3.470; SCR 3.530; SCR 3.990;
Clay v. Kentucky Bar Ass’n, 290 S.W.3d 652 (Ky. 2009);
Kentucky Bar Ass’n v. Bierbauer, 282 S.W.3d 318 (Ky. 2009);
Kentucky Bar Ass’n v. Marcum, 292 S.W.3d 317 (Ky. 2009);
Kentucky Bar Ass’n v. Matthews, 291 S.W.3d 236 (Ky. 2009);
Radolovich v. Kentucky Bar Ass’n, 282 S.W.3d 327 (Ky. 2009);
Kentucky Bar Ass’n v. Hawkins, 260 S.W.3d 337 (Ky. 2008);
Kentucky Bar Ass’n v. Hammond, 241 S.W.3d 310 (2007);
Kentucky Bar Ass’n v. Rice, 229 S.W.3d 903 (Ky. 2007);
Kentucky Bar Ass’n v. Vanmeter, 176 S.W.3d 692 (Ky.
2005);Kentucky Bar Ass’n v. Hall, 173 S.W.3d 621 (Ky. 2005);
Kentucky Bar Ass’n v. Layton, 97 S.W.3d 452 (Ky. 2003); In re
Riehlmann, 891 So.2d 1239 (La. 2005); In the Matter of Galmore,
530 S.E.2d 378 (S.C. 2000); In re Rivers, 331 S.E.2d 332 (S.C.
1984); ABA Formal Op. 04-433 (2004); ABA Formal Op. 03-431
(2003); Pa. Eth. Op. 2008-12(2008); Oh. Adv. Op. 2007-1 (2007);
S.C. Adv. Op. 05-21 (2005); Or. Eth. Op. 2005-95(2005); S.C.
Adv. Op. 02-15 (2002); S.C. Adv. Op. 02-14 (2002); N.C. Eth. Op.
5 (2001);Ct. Eth. Op. 00-01 (2000); Ct. Eth. Op. 01-04 (2001); Pa.
Eth. Op. 99-53 (1999); Ct. Eth. Op. 97-30 (1997); Ct. Eth. Op. 96-
20 (1996); KBA E-265 (1982).

Introduction
Under the recent amendments to the Rules of Professional Conduct,1 SCR 3.130 (8.3),2
Kentucky lawyers now have an ethical obligation to report certain types of ethical
misconduct of other lawyers and judges. The obligations imposed by the rule are
designed to preserve the integrity of the profession and to assure public confidence in the
judicial system. Because the legal profession has the privilege of self-regulation it has

1 Kentucky Supreme Court Order Amending Rules of the Supreme Court 2009-5, issued April 16, 2009,
made substantial changes in the Kentucky Rules of Professional Conduct, SCR 3.130. The Rule changes
became effective July 15, 2009. 2 Hereinafter referred to as “Rule 8.3.”
the corresponding responsibility of assuring that the profession’s high standards are
respected. Rule 8.3 reflects that privilege and responsibility.3

In many circumstances, lawyers are in the best position to know of another lawyer’s
misconduct and to minimize its consequences to others. Not only do lawyers know the
standards by which lawyers and judges are expected to conduct themselves, lawyers also
work closely with them and may be the first ones actually to observe the acts of
misconduct. In many cases, the victim of the misconduct may not even be aware of it.

As officers of the legal system, lawyers must take the affirmative responsibility to assure
that both the bench and bar maintain the highest standards, and to assure that those who
do not conform to these standards are disciplined. It is only by taking an active role in
the disciplinary process that the profession is deserving of the public’s trust and
confidence.

The reason for the reporting obligation is summarized in the Preamble to Kentucky’s
Rules of Professional Conduct:

XIII. The legal profession’s relative autonomy carries with it special
responsibilities of self-government. The profession has a responsibility to assure
that its regulations are conceived in the public interest and not in furtherance of
parochial or self-interested concerns of the bar. Every lawyer is responsible for
observance of the Rules of Professional Conduct. A lawyer should also aid in
securing their observance by other lawyers. Neglect of these responsibilities
compromises the independence of the profession and the public interest which it
serves.4
Many questions have been raised about the rule’s application. For example, must
lawyers report all violations of the rules? How much does a lawyer have to know before
the duty to report is triggered? How does confidentiality affect the obligation? Do
lawyers have to report themselves? Do lawyers have to report partners or associates?
These are all questions that lawyers may encounter as they seek to understand the
implications of the new rule. It should be emphasized that every situation is different;
thus lawyers will need to carefully analyze each situation independently. This opinion is
designed to provide a framework for that analysis. In questionable cases, lawyers should
seek further advice from their District Member of the Ethics Hotline.

I. Under what circumstances does Rule 8.3 impose a duty to report professional
misconduct of others?

“The duty to report misconduct of another lawyer or judge does not arise every time one
thinks a violation of the Rules of Professional Conduct may have occurred. Rule 8.3
imposes the obligation to report only under certain limited circumstances. The full text of
Rule 8.3 reads as follows:
3 ABA Formal Op. 04-433 (2004).
4 SCR 3.130 (Preamble).
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