Supreme Court Rules do not require lawyers to report disciplinary investigations to their employers, but fiduciary duty might require doing so. Law firms can encourage a robust fiduciary duty by requiring lawyer-employees to notify their managers regarding pending disciplinary investigations.
I am the managing partner at a small law firm. I have heard a rumor that one of the firm’s associates is being investigated by the Office of Lawyer Regulation. Does the associate have to notify me of the investigation?
Nothing in the Rules of Professional Conduct requires a lawyer to notify his or her employer if the lawyer is the subject of an investigation by the Office of Lawyer Regulation (OLR). A proposal was presented to the Wisconsin Supreme Court that would make such a requirement part of the Supreme Court Rules; however, the supreme court has decided to take no action to consider that proposal.
Under the current Rules of Professional Conduct, lawyers have a duty to cooperate with the OLR. That duty is found in SCR 21.15(4) and SCR 22:03(4) and (6). The duty of cooperation is a crucial requirement for lawyers, and a lawyer can be subject to significant discipline if the lawyer refuses to provide information to the OLR or to cooperate in an investigation. A lawyer is also required to notify the supreme court (and the OLR) if the lawyer has been convicted of a crime (see SCR 21.15(5)), which again is an absolute requirement except for instances of traffic violations that do not rise to the level of a crime. The primary example of the latter is a first-offense operating while intoxicated; any additional convictions for operating while intoxicated would require notification be given to the clerk of the supreme court and the OLR.
Although there is no Supreme Court Rule regarding notification by lawyers if they are under an OLR investigation, every lawyer owes various fiduciary duties to the law firm that employs the lawyer. The nature and extent of a fiduciary duty depends on the employment relationship and the policies established by the employing law firm. This is more of a legal analysis than an interpretation of the Rules of Professional Conduct but is something that law firms and lawyers should be aware of.
It would make sense that a law firm would have a very clear policy either in an employment agreement or in an employment handbook that places an obligation on the lawyer to notify the managing partner of any investigation being conducted concerning the lawyer’s conduct. This would apply whether the lawyer is an associate in a law firm or a partner or an owner of the law firm.
The potential of adverse consequences from an investigation and how it may affect services to clients is something that the law firm should consider. It certainly starts by having knowledge of the investigation, which might be ongoing. It also provides an opportunity for the law firm to assist the lawyer in addressing the issues that may arise from the OLR investigation.
Lawyers must remember that they owe fiduciary duties to their employer and recognize when they need to take the appropriate steps to meet those fiduciary duties.
The nature and extent of a fiduciary duty depends on the employment relationship and the policies established by the employing law firm.