Whistleblowing — Difficult Duty of DR 1-103(a)
By John Q. Barrett [Originally published in NYPRR June 2000]
Last fall, I received a memorable telephone call from a former student. This young lawyer explained that he was calling me to seek professional responsibility advice for an unnamed friend who had just begun to work as a new associate at a law firm.
A partner in the firm had apparently confided to this associate that he was billing some of the associate’s legal work out as the partner’s own, at his higher billing rate. The partner had also told the associate that some of her work was being billed out to clients for as many hours as he could reasonably justify, not the shorter time she actually spent on the work. The partner had defended his acts as “This is how we do it here.” The associate’s basic question, relayed by her friend to me, was whether she had a professional obligation to do anything about the situation, which was beginning to trouble her a great deal.
Both my caller and his friend already feared, of course, that the answer to the question was “Yes.” The New York Code of Professional Responsibility imposes, through Disciplinary Rule 1-103(a) [22 NYCRR §1200.4(a)], a duty on every New York lawyer to report the professional misconduct of a fellow lawyer.
To assist lawyers who confront situations like (and also somewhat different in their details from) the one facing my student’s friend, this column reviews DR 1-103(a) and some of the judicial decisions and bar committee ethics opinions that interpret its provisions.
Text of DR 1-103(a)
DR 1-103(a), which the Appellate Divisions revised last summer in only one minor respect, imposes the following duty:
A lawyer possessing knowledge, (1) not protected as a confidence or secret, or (2) not gained in the lawyer’s capacity as a member of a bona fide lawyer assistance or similar program or committee, of a violation of section 1200.3 [DR 1-102] of this Part that raises a substantial question as to another lawyer’s honesty, trustworthiness or fitness as a lawyer shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.
To determine the scope of this duty and its application in a particular circumstance, a lawyer must parse the separate predicate elements that define the “knowledge” that triggers the duty to inform.
Duty Requires ‘Knowledge’
DR 1-103(a) imposes an affirmative duty upon a lawyer to report her knowledge of another lawyer’s serious professional misconduct, provided it is legally and ethically usable. The Rule has been amended several times, but the basic parameters defining “knowledge” have remained essentially the same. [See, NYSBA Op. 635 (1992); ABCNY Op. 1990-3.] To confirm that she has the requisite knowledge, a lawyer should make three separate inquiries.
1. Do I Know? The lawyer should first determine the nature, scope and content of her “knowledge.” Does she have “knowledge” in the real sense, which is what the Rule specifies, or only information of a less definite quantity or quality? Although the New York Code does not contain its own definition of “knowledge,” DR 1-103(a) has been interpreted to require actual, first-hand information, not merely suspicion or uncertain belief.
The scope of knowledge required was defined in ABCNY Op. 1990-3, supra:
This Committee has previously held, and continues to believe, that there is no obligation… to report mere suspicion of misconduct by another lawyer… given the serious personal and professional consequences to the other lawyer… the “knowledge” requirement… should be construed to require a basis for clearly believing that misconduct has in fact occurred…
Both this Opinion and a subsequent ABCNY Opinion (1995-5) quoted the court in In Re Grievance Committee of the U.S. District Court, D. Conn., 847 F.2d 57, 63 (2d Cir. 1988). The court said, “proof beyond a moral certainty” is not required, but a lawyer “must clearly know, rather than suspect, that a fraud on the court has been committed before he brings his knowledge to the court’s attention.”
2. How Do I Know? The lawyer who has “knowledge” should determine next whether it comes from a usable source. A source which compromises a client’s confidence or secret is not “usable”. DR 1-103 explicitly disaffirms a lawyer’s duty to inform if her knowledge is protected as a client “confidence” or as a “secret”. This is knowledge that a lawyer may not, in general, use or share. In fixing a hierarchy of responsibility, the Code has determined that a lawyer’s duty to preserve a client’s confidences and secrets is a higher duty than her duty to disclose wrongdoing on the part of a fellow attorney.
The Code defines “confidences” as information that is protected by the attorney-client privilege under applicable evidence law. See DR 4-101(a). The Code also defines “secrets” as all the other non-privileged information that a lawyer gains in a professional relationship with a client that the client does not want disclosed, including any information that would, if disclosed, embarrass or in any way injure that client. Id. These definitions, as imported into DR 1-103(a), mean that a lawyer does not have to inform if her knowledge of a fellow lawyer’s misconduct derives from information communicated by her own client. [See, e.g., Nassau County Op. 98-12.] The lawyer also has no duty to inform if her knowledge comes as the result of her involvement in a lawyer assistance program. [Judiciary Law §499.]
3. What Do I Know? The lawyer’s final inquiry under the “knowledge” element of DR 1-103(a) concerns the subject matter of her knowledge. The Rule applies when a lawyer knows, from a usable source, that another lawyer, or a law firm, has committed one of the acts of professional misconduct that are specified in the broad provisions of DR 1-102, and that this misconduct raises serious questions about that lawyer’s — or, presumably, the law firm’s — fitness to practice.
Evaluating the content of the lawyer’s usable knowledge requires a complex and highly discretionary inquiry. Its first element, which involves ascertaining whether the lawyer’s knowledge describes an act of professional misconduct under DR 1-102, will be relatively easy, given the breadth of the Rule’s prohibitions. [See, e.g., DR 1-102(a), “A lawyer or law firm shall not (1) Violate a Disciplinary Rule[;]… (4) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”]
The second element of our evaluation — whether the lawyer’s knowledge “raises a substantial question as to [the other] lawyer’s honesty, trustworthiness or fitness as a lawyer” — calls for a much harder judgment call. Although any lawyer misconduct can raise a serious question about “fitness” to practice, the Rule’s explicit references to “honesty” and “trustworthiness” suggest that acts involving fraud and deception are particularly persuasive in triggering the reporting duty.
Several ethics opinions have weighed conduct by lawyers under the Rule. NYSBA Op. 98-700 considered allegations that a lawyer had submitted altered documents to a government agency that was investigating his client. ABCNY 1995-5 dealt with a lawyer’s knowledge that a former partner had neglected matters and converted funds of clients and the firm. [See also, ABCNY Op. 1995-2; ABCNY Op. 89-1; and Nassau Cty. Op. 88-11.]
On the other hand, a lawyer’s minor rule violations may not trigger a duty to inform. Under some circumstances, a lawyer may reasonably be excused from revealing an infraction by another lawyer, as in the case of conduct that is uncharacteristic or aberrant, but a lawyer who yields to her own judgment not to reveal is always on tricky ground.
A lawyer who cannot decide whether what she knows is serious enough to report is not, of course, prohibited from resolving her indecision by submitting the report. She should not, however, err on the side of disclosure if her motivation is to achieve a tactical advantage over the lawyer she is reporting.
Process of Reporting
At the conclusion of her inquiries, a lawyer who determines that she has the requisite usable knowledge of another lawyer’s misconduct is required by DR 1-103(a) to report this knowledge. If her knowledge relates to an adversary (or a colleague) involved in litigation or in some other proceeding before “a tribunal,” disclosure to that authority will satisfy her duty under the Rule.
In the alternative, the Rule requires the lawyer to report her knowledge to some “other authority” with the power to investigate or act upon the misconduct. In practice, that means the Grievance Committee for the jurisdiction where the misconduct occurred. The lawyer should report her knowledge of misconduct within a reasonable period of time. She may do so in any manner, although a certified letter is preferable because it creates documentation of her compliance with the Rule.
Consequences of Reporting
A lawyer who has complied with DR 1-103(a) by disclosing her knowledge of serious misconduct by another lawyer is immune from liability for defamation. [Wiener v. Weintraub, 22 N.Y.2d 330, 292 N.Y.S.2d 667 (1968).] She is also protected from workplace retaliation. This shield is important, because there is always a risk of retaliation when a lawyer reports the misconduct of a colleague, especially a senior colleague. [See, Wieder v. Skala, 80 N.Y.2d 628, 593 N.Y.S.2d 752.]
Conversely, a lawyer who violates DR 1-103(a) by failing to make a report of misconduct when one is required by the Rule, is herself subject to professional discipline. In reality, by their very nature, non-disclosure violations will rarely come to the attention of a Grievance Committee. When they do, they tend to be part of a package of multiple Rule violations. [In re D’Addario, 230 A.D.2d 509, 658 N.Y.S.2d 582 (1st Dept. 1997); In re Jochnowitz, 189 A.D.2d 342, 596 N.Y.S.2d 62 (1st Dept. 1993); In re Canavan, 183 A.D.2d 186, 589 N.Y.S.2d 150 (1st Dept. 1992); In re Dowd & Pennisi, 160 A.D.2d 78, 559 N.Y.S.2d 365 (2nd Dept. 1990).]
There is, to my knowledge, only one reported case of discipline solely for non-disclosure under another state’s counterpart to New York DR 1-103(a), and it turned on extraordinary facts. In In re Himmel [125 Ill.2d 531, 533 N.E.2d 790 (1988)], a lawyer failed to disclose his knowledge of another lawyer ‘s misconduct in order to obtain a better settlement and a larger fee.
Difficult and Demanding Rule
DR 1-103(a) is, by design, a demanding rule. Its colloquial nicknames — the “squeal” rule; the “snitch” rule — reflect lawyers’ understandable and instinctive reluctance to perform the uncomfortable duty of informing on a colleague.
Well, what did the associate whom I described in this essay do? Did she report what she knew about the partner ‘s billing fraud? The true answer is that I don’t know. If she had the knowledge that was described to me, she had a duty to inform the proper Grievance Committee. In doing so, she would have discharged a difficult duty and helped the legal profession to prove to a skeptical world that it can be both ethical and self-policing.
If she had usable knowledge of serious misconduct but did not report that knowledge to the appropriate authority, then she violated DR 1-103(a). In shirking that duty, she would have followed a path that too many lawyers take when confronted with difficult soul-searching decisions about another lawyer ‘s conduct. I must admit, however, that I am glad not to know if she had that knowledge and failed to report it, for it relieves me of the responsibility to determine whether I have a sufficient basis or a duty to inform on he.
John Q. Barrett is an Associate Professor at St. John’s University School of Law, where he teaches Professional Responsibility. He serves on the Professional and Judicial Ethics Committee of the Association of the Bar of the City of New York.
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