When is a lawyer required to report the misconduct or potential misconduct of another lawyer or a judge?
Rule 8.03, Texas Disciplinary Rules of Professional Conduct, is the relevant rule that mandates when a lawyer is obligated to report misconduct of another lawyer. Note that a Texas lawyer is not required under this Rule or any other provision of the Texas rules to report his or her own misconduct to the State Bar - although a lawyer has a fiduciary duty to clients to disclose material information regarding the representation, which may include the lawyer’s malpractice or misconduct. Further, a lawyer may be required, under other Texas disciplinary rules, to disclose information to the courts or third persons that may implicate the lawyer’s conduct under the Texas Disciplinary Rules of Professional Conduct (for example, Rule 4.01 imposes various disclosure requirements on lawyers with respect to material representations (or misrepresentations) made to a tribunal, although, arguably, one premise of this Rule is that the lawyer was not aware of a false statement of fact or law at the time the lawyer made it).
Lawyers have occasionally been disciplined for failing to report the misconduct of other lawyers. In a prominent Illinois case, In re Himmel, 533 N.E.2d 790 (Ill. 1988), the Illinois Supreme Court upheld the one year suspension of a lawyer for failing to report another lawyer’s misapplication of client settlement money, even though the client had asked Himmel not to report the lawyer. The case outcome is credited with generating many more misconduct reports by lawyers in Illinois and elsewhere. The Illinois disciplinary rule was more stringent than the current Texas Rule 8.03 (which has been in effect since 1990) in at least one important respect: the Texas rule recognizes a client confidentiality exception, under Rule 1.05 to the misconduct reporting requirement (i.e., if the lawyer learned of another lawyer’s misconduct through his or her own client and the client does not consent to the lawyer’s misconduct report, then the lawyer is absolved from the reporting requirement). Himmel argued, to no avail, that his client had asked him not to report the other lawyer’s misconduct (the other lawyer had allegedly stolen money from the client and the client apparently believed that a misconduct report would complicate Himmel’s recovery efforts.
Texas Rule 8.03 provides that:
(a) Except as permitted in paragraphs (c) or (d), a lawyer having knowledge that another lawyer has committed a violation of applicable rules of professional conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority.
(b) Except as permitted in paragraphs (c) or (d), a lawyer having knowledge that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judges fitness for office shall inform the appropriate authority.
(c) A lawyer having knowledge or suspecting that another lawyer or judge whose conduct the lawyer is required to report pursuant to paragraphs (a) or (b) of this Rule is impaired by chemical dependency on alcohol or drugs or by mental illness may report that person to an approved peer assistance program rather than to an appropriate disciplinary authority. If a lawyer elects that option, the lawyer's report to the approved peer assistance program shall disclose any disciplinary violations that the reporting lawyer would otherwise have to disclose to the authorities referred to in paragraphs (a) and (b).
(d) This rule does not require disclosure of knowledge or information otherwise protected as confidential information:
(1) by Rule 1.05 or
(2) by any statutory or regulatory provisions applicable to the counseling activities of the approved peer assistance program.