In the movie “Goodfellas,” Robert De Niro famously advises that the two greatest life lessons are “Never rat on your friends, and always keep your mouth shut.” Those are good rules if you’re in a crime syndicate. But as most lawyers know, our Rules of Professional Conduct can actually require us to “rat out” our fellow lawyers, under some limited circumstances. Model Rule 8.3(a), adopted in some version in almost all jurisdictions, says:
“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.”
Rule 8.3(b) applies the principle to judges.
But do you ever have to, in effect, rat yourself out — self-reporting your own ethical misconduct?
In almost every jurisdiction (my home state of Ohio is an exception), the answer is “No.” The Model Rule, as incorporated into almost all the state professional conduct rules and the rules of the District of Columbia, deals expressly with reporting the ethical misconduct of “another lawyer.” Under that language, there is no ethical duty to self-report your own violation of the professional conduct rules. In some jurisdictions, though, self-reporting might be considered as part of the mitigating factors that can reduce the severity of professional discipline, as a recent Nevada opinion illustrates.
Stayed suspensions for trust fund misconduct
In the Nevada case, two lawyers got one-year fully-stayed suspensions after their employee improperly used more than $1 million in client trust account funds to pay firm business expenses. As described in the state supreme court’s opinion, the two lawyers admitted they violated Nevada’s version of Model Rule 5.3, by failing to properly supervise a non-lawyer assistant, and they agreed to the sanction. The lawyers were not aware of the non-lawyer’s actions. And, strikingly, “Within fifteen minutes of discovering the non-lawyer assistant’s improper trust fund transfers,” they “self-reported to the State Bar.” In accepting the proposed discipline, the supreme court noted the lawyers’ “full and free disclosure to disciplinary authority.” It also helped that the lawyers immediately hired a forensic accountant for an audit, and began repaying the trust account shortfall out of earned fees.
… And you might have to self-report crimes and/or other discipline
The general rule excusing you from ratting on yourself is turned upside down in many places, however, when it comes to self-reporting discipline that is imposed on you by a court (for instance a federal court) or by a disciplinary authority in another jurisdiction. In those cases, many jurisdictions require you to bring the matter to the attention of your home state’s disciplinary body. It’s not the misconduct itself, but the fact of disciplinary action emanating from somewhere besides your home jurisdiction’s highest court that triggers this kind of self-reporting duty.
You also might have a duty to self-report if you are charged with or convicted of a crime. If (heaven forbid) you find yourself in that situation, you should get advice about what your jurisdiction requires of you, including any mandatory time frames on self-reporting.
Carve-out for lawyer assistance programs
Last, a PSA: If you are struggling with a mental health problem, or with substance abuse, be aware that the lawyer assistance program that every jurisdiction has is very likely exempted from reporting to disciplinary authorities misconduct that its staff lawyers learn of in the course of helping you. Check your own state’s version of Model Rule 8.3(c), but those I’m aware of have some form of the Model Rule’s carve-out: “This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.”
Here in Ohio, our lawyer assistance program advises that no disciplinary problem is ever made worse by seeking help.