Question

I am involved in a contentious litigation matter, and I think that the opposing lawyer has engaged in serious misconduct that violates the ethics rules. Do I have to report this immediately to the Office of Lawyer Regulation (OLR)?

Answer

There is no specific directive in the Rules of Professional Conduct regarding the timeline for reporting the misconduct of another lawyer. SCR 20:8.3(a) and (c) of the Rules provide 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.

…

(c) If the information revealing misconduct under subs. (a) or (b) is confidential under SCR 20:1.6, the lawyer shall consult with the client about the matter and abide by the client’s wishes to the extent required by SCR 20:1.6.

This language does not address a specific timeline for reporting of the attorney conduct to the OLR. There is a six-year statute of limitation for filing a grievance against a lawyer but I think your concern focuses more on the effect (arguably positive or arguably negative) that the reporting of this information might have on the pending litigation.

My general experience is that the OLR typically does not pursue an investigation into a complaint or grievance while litigation where the alleged misconduct is involved is ongoing. Instead, the OLR will place the matter on hold until the litigation has been completed or resolved in some fashion.

Obviously, a final decision on this question depends on the type of misconduct in which the other attorney might have engaged. If the misconduct involves some type of harm to your client or another person, it might be necessary to report the information right away and allow the OLR to decide whether to take some type of immediate action. Complaints regarding behavior or interactions in the litigation may be placed on hold and investigated after the litigation has been resolved so that the OLR investigation does not interfere with the litigation.

The duty to report on the misconduct of another lawyer must be taken very seriously. For the legal system to be protected and to function properly, this lawyer-reporting process must be honored but also should not be used as a weapon to unduly influence litigation. Lawyers should be careful when considering their duty to report on the conduct of another lawyer.

If the misconduct involves some type of harm to your client or another person, it might be necessary to report the information right away and allow the OLR to decide whether to take some type of immediate action.

» Cite this article: 95 Wis. Law. 47 (February 2022).