Wisconsin
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 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.
Wisconsin Lawyer