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    Ethics: Self-reporting Lawyer Misconduct

    The Rules of Professional Conduct require lawyers to self-report rule violations and conviction of a crime or a finding of guilt by a court no matter where the crime occurred.

    Dean R. Dietrich

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 81, No. 9, September 2008

    Ethics

    Self-reporting Lawyer Misconduct

    The Rules of Professional Conduct require lawyers to self-report rule violations and conviction of a crime or a finding of guilt by a court no matter where the crime occurred.

    by Dean R. Dietrich

    Sidebar:

    Question

    I often hear talk about a lawyer's duty to report on the misconduct of another lawyer. Is there any obligation for a lawyer to self-report?

    Answer

    There does seem to be a lot of interest in the duty of a lawyer to report on the misconduct of another lawyer. The lawyer profession is touted as unique for being a self regulating profession. This has both positive and negative connotations.

    It is clear under SCR 20:8.3 that a lawyer must report on the conduct of another lawyer if the lawyer knows that the other lawyer has engaged in conduct that is in violation of the Rules of Professional Conduct. The reporting requirement is described in SCR 20:8.3(a) as follows:

    "(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 that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority."

    The concept of "knows" also is defined in the rules. SCR 20:1.0(g) defines knows as:

    "(g) `Knowingly,' `known,' or `knows' denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances."

    See the May 2007 Wisconsin Lawyer article "New Rules Clarify Lawyers' Duty to Report Professional Misconduct" for more information.

    The obligation to self-report is a much more difficult and complex question. Self-reporting on lawyer conduct that could be construed as a rule violation may be a worthwhile defense strategy in some circumstances. Such strategy requires careful consideration and is not a guarantee of leniency or absolution.

    There is one requirement that is defined in a lesser-known provision of the Supreme Court Rules. SCR 21:15, entitled "Duties of Attorneys," contains a provision requiring a lawyer to self-report information related to the conviction of a crime or the finding of guilt by a court. SCR 21.15(5) provides as follows:

    Dean 
Dietrich

    Dean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is chair of the State Bar Professional Ethics Committee.

    "An attorney found guilty or convicted of any crime on or after July 1, 2002, shall notify in writing the office of lawyer regulation and the clerk of the Supreme Court within 5 days after the finding or conviction, whichever first occurs. The notice shall include the identity of the attorney, the date of finding or conviction, the offenses, and the jurisdiction. An attorney's failure to notify the office of lawyer regulation and clerk of the Supreme Court of being found guilty of his or her conviction is misconduct."

    This provision contains an absolute requirement that an attorney who is found guilty or is convicted of a crime must notify the Wisconsin Supreme Court within five days of such a finding or conviction. A failure to do so is deemed misconduct, which would allow for Office of Lawyer Regulation (OLR) prosecution for a violation of SCR 20:8.4. This is a bright-line requirement, and a failure to comply will likely result in some type of discipline.

    The definition of what constitutes "any crime" is not clear from the language of the Supreme Court Rule. The OLR interprets this rule as requiring a lawyer to report any finding of guilty or conviction of a crime as defined in Wis. Stat. section 939.12. That statute provides that "a crime is conduct which is prohibited by state law and punishable by fine or imprisonment or both. Conduct punishable only by a forfeiture is not a crime." This likely would include any misdemeanor or felony conviction or any crime for which the attorney is found guilty except for traffic violations and first-offense operating-while-intoxicated charges. It also is important to recognize that the crime could take place anywhere, not just in Wisconsin, and the obligation to notify the OLR and the clerk of the supreme court would still apply. Also, if a particular offense is considered a crime in another jurisdiction, the requirement to notify the OLR and the supreme court clerk would apply even if the offense would not constitute a crime in Wisconsin. It has not been determined whether a finding of guilty or conviction of a municipal ordinance violation that has a counterpart criminal statute would trigger the obligation of a lawyer to provide a report to the OLR and the supreme court clerk. It is, however, understood that this duty to notify the OLR and the supreme court clerk would apply to an attorney who is on inactive status but still considered licensed in Wisconsin.

    Lawyers should be aware of this self-report requirement found in the Supreme Court Rules. While prosecution for a violation of this rule is not common, even the small possibility of a prosecution easily can be avoided by knowing what obligations exist and making sure to comply with those reporting obligations.




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