Jessica Whelan Outlines Three Things to Know About Reporting Ethics Violations
BGD attorney Jessica Whelan and co-author James J. Bell recently outlined the three things to know about an attorney’s duty to report an ethics violation by another lawyer in a column for the Indiana Lawyer.
First, Whelan and Bell say not all violations of the Rules of Professional Conduct need to be reported. Rule 8.3(a) of the Indiana Rules of Professional Conduct states that “[a] lawyer who knows that another lawyer has committed a violation of the 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 professional authority.”
In examining Rule 8.3, it is clear that the lawyer must “know” of the other attorney’s violation. Rule 1.0(f) states that “‘knows’ denotes actual knowledge of the fact in question.” In fact, as outlined in the rule, if the alleged misconduct of the other attorney does not cause you to question the lawyer’s honesty, trustworthiness or fitness as a lawyer, you can report the violation, but you are not required to do so.
Second, Whelan and Bell explain that in Indiana, an attorney is required to self-report a criminal conviction. According to the Indiana Admission & Discipline Rule 23, § 11.1(a)(2), “[a]n attorney licensed to practice law in the state of Indiana who is found guilty of a crime in any state or of a crime under the laws of the United States shall, within 10 days after such finding of guilt, transmit a certified copy of the finding of guilt to the Executive Secretary of the Indiana Supreme Court Disciplinary Commission.” Judges who are aware of an attorney’s criminal conviction have a similar duty. See Admis. Disc. R. 23, § 11.1(a)(1).
Finally, do not threaten to report an ethics violation to obtain an advantage in litigation. Whelan and Bell emphasize that if you know that another attorney has committed an act of misconduct that would trigger a mandatory report, then follow the rule and report the attorney. Do not seek to report the attorney for your own personal gain – it could result in disciplinary sanctions.