In March 1998, the Supreme Judicial Court put in force a new set
of rules of professional conduct that included Rule 8.3, the
so-called "snitch rule." The most frequently-cited justification
for the rule is set forth in Comment  to the ABA Model Rule 8.3:
Maintaining The Integrity Of The Profession, Reporting Professional
It says: "Self-regulation of the legal profession requires that
members of the profession initiate disciplinary investigation when
they know of a violation of the Rules of Professional Conduct.
Lawyers have a similar obligation with respect to judicial
misconduct. An apparently isolated violation may indicate a pattern
of misconduct that only a disciplinary investigation can uncover.
Reporting a violation is especially important where the victim is
unlikely to discover the offense."
So the ABA asserts two primary reasons for the rule: (1)
disclosure may reveal an otherwise hidden pattern of misconduct;
and (2) victims may be unlikely to discover the misconduct.
Nancy Kaufman, an assistant bar counsel for more than three
decades, described the purpose of Rule 8.3 in a September 2004 bar
counsel publication as follows: "Reporting the misconduct of other
lawyers is essential to the bar's system of self-regulation.
Lawyers are in the best position both to observe and evaluate
professional misconduct and assist the profession in sanctioning
it. Public confidence in the legal profession's ability to regulate
its members is diminished when lawyers fail to report substantial
violations of the rules, or, worse, cover it up."
Bar counsel pleads two alternative grounds for the rule: (1)
practicing lawyers are the primary percipient witnesses of
misconduct; and (2) the public expects lawyers to report misconduct
of other lawyers.
The general public, however, typically looks at snitches with
caution, if not contempt. Wiktionary defines a snitch as "an
informer, one who betrays his group." The Urban Dictionary defines
a snitch as "a bum of a person."
Is there any better source than the Whitey Bulger trial for
guidance on how the public values snitches? Attorney J. W. Carney
Jr. defended Bulger in part by this argument: "James Bulger is of
Irish descent. And the worst thing an Irish person could consider
doing is becoming an informant." In cross-examining Steven ("The
Rifleman") Flemmi, Hank Brennan, Bulger's other defense lawyer,
asked: "So when you use the term 'quid pro quo,' that's just Latin
for rat, isn't it?" But, perhaps the best line of all came from
John ("The Executioner") Martorano (who admitted to murdering some
20 souls); the former Bulger hit man testified for the prosecution
that "[my father, the priests, and the nuns] taught me that Judas -
Judas was the worst person in the world." The Matoranos (and
apparently the priests and nuns who counseled them) apparently took
the admonitions in Leviticus literally.
Bar counsel does not organize lawyer reports of misconduct by
other lawyers under Rule 8.3 and, consequently, does not have
aggregate data available to demonstrate the frequency of its use.
Without empirical data, it is simply impossible to evaluate with
confidence whether lawyer disclosures actually reveal otherwise
hidden patterns of misconduct or whether victims discover lawyer
misconduct as a result of Rule 8.3 reports. Winston Churchill's
insight into human nature in such circumstances rings true today:
"Men occasionally stumble over the truth, but most of them pick
themselves up and hurry off as if nothing ever happened."
It is undoubtedly true that some lawyers are percipient
witnesses of other lawyer misconduct. One can imagine various
circumstances that would expose lawyer misconduct to another lawyer
and thereby activate the obligation to file a Rule 8.3 report.
Direct interaction in litigation or in transactions is a possible
window to lawyer misconduct.
But zealous representation of clients might easily be
characterized as "misconduct," particularly in high stakes
winner-take-all contests. Lawyers have egos, after all.
Representing a client in a matter that has a prior, procedural
history often requires a lawyer to review and assess prior
counsel's actions. Ground zero for direct observation of lawyer
misconduct is the multiple lawyer organization (with private law
firms, corporate in-house lawyer staffs and prosecutors' offices
leading the pack).
Private practitioners in multiple lawyer firms will be exposed
to their colleagues' conduct in many respects, including time
keeping, expenses, trust accounts, civil litigation discovery, and
even racial, sexual, and gender discriminatory actions. Law firm
break-ups may result in audits that uncover misconduct. Lawyers may
also observe their colleagues' personal mental health and substance
abuse problems that negatively impact client matters or the
lawyer's competence to practice law.
Retained counsel and other in-house staff counsel may develop
knowledge of wrongdoing by the staff lawyers (including the general
counsel) employed by the client organization. Preservation and
disclosure of relevant information impacting criminal and civil
litigation or regulatory investigations is the most fertile ground
Prosecutors can withhold evidence helpful to the defendant or
suborn perjury. In his recent novel, "Rogue Lawyer," John Grisham
speaks to the perjury of a jailhouse snitch known as Smut, "an
accomplished courtroom liar who testifies all the time and will say
whatever the prosecutors want him to say." Because "the cops needed
some testimony," they arranged to have Smut put in the same jail
cell as the defendant after feeding him details of the crimes.
Within 24 hours, Smut claimed that he heard a full confession. His
testimony at the trial "was quite a performance." The defense
lawyer, the cops, the prosecutors and the judge knew it was all a
lie, but the jury "swallowed it in disgust." Grisham's tale of the
jailhouse snitch brings to mind the statement of an anonymous
writer that "looking for an entirely reliable informant is like
looking for a chaste mistress."
Rule 8.3 (a) provides: "A lawyer having knowledge 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 Bar Counsel's office of the Board of Bar
Overseers." Rule 8.3 (b) sets forth a similar mandate for knowledge
of judicial misconduct. Safe harbors are found in Rule 8.3(c) when
the lawyer's knowledge was derived from confidential client
information or participation in a lawyer assistance program.
The obligation to report is mandatory (the lawyer "shall inform"
bar counsel). It is triggered by (1) "knowledge" of (2)
"violation[s] of the Rules of Professional Conduct" that (3) raise
a "substantial question" of (4) the offending lawyer's "honesty,
trustworthiness or fitness as a lawyer in other respects." Rule 8.3
incorporates all rules of professional conduct within its scope,
including Rule 8.4 that spells out "misconduct." But it is not
limited to the types of "serious crimes" that would lead to
suspension of disbarment as defines in Rule 4:01, §12(3).
Conduct that is prejudicial to the administration of justice is
reportable under Rule 8.3. Presumably, a lawyer who demonstrably
fails to provide competent representation to her client because she
lacks the legal knowledge, skill, thoroughness and preparation
necessary for the representation of her client should be reported
to Bar Counsel. See Rule 1.1 Competence.
In her 2004 bar counsel publication, Nancy Kaufman averred that
"absolute certainty" was not necessary to have knowledge of the
misconduct. Relying on Comment  to Rule 8.3 and the definition
found in Rule 9.1(f), she argued that sufficient knowledge of the
misconduct comes about when the lawyer had supporting evidence such
that a reasonable lawyer would have a firm opinion that the conduct
in question had more likely occurred than not. That standard is
remarkably fluid in the context of bar discipline.
In Attorney U v. The Mississippi Bar, 678 So.2d 963 (Miss.
1996), a partner in a large, prominent Jackson law firm represented
a mobile "pulmonary function testing service" in claims against a
plaintiff asbestos lawyer centered on the amount of "fees" said to
be owed arising out of an agreement to share tort recoveries by
personal injury plaintiffs. The Jackson lawyer averred in writing
and orally to the asbestos lawyer (and his counsel) that the
asbestos lawyer committed violations of the Mississippi code of
professional conduct. The asbestos lawyer denied the allegations.
The bar brought a complaint against the Jackson lawyer for failing
to report the plaintiff lawyer under Rule 8.3. The Supreme Court
held that the circumstances did not dictate a firm opinion on the
part of a reasonable lawyer that the conduct in fact occurred.
The court wrote: "It is not for the lawyer to believe or
disbelieve the client. … A lawyer must be free to assert his
client's claims, at least until there is evidence apparent that his
client is lying. The state of mind necessary to assert the claim,
however, falls well short of that required for a "firm opinion" as
to whether specific conduct occurred. We must allow lawyers at
least this degree of detachment if we are to assure the competent
and vigorous representation essential to our adversary system of
Before publishing this article, we confirmed with bar counsel
that in the 18 years that Rule 8.3 has been in force (1998-2016)
there does not appear to have been a single lawyer disciplined for
violating Rule 8.3. The seminal case for bar discipline for
violating Rule 8.3 is In re Himmel, 533 N.E.2d 790 (Ill. 1988).
Himmel is a successor counsel case. Attorney Himmel came to know
that predecessor counsel on the common client's personal injury
claim (Attorney Casey) had converted the client's settlement funds
to his personal use. Attorney Himmel pursued recovery of the funds
from Attorney Casey and, on the client's insistence, did not report
the misconduct to state regulatory authority. The Supreme Court of
Illinois suspended Attorney Himmel from the practice of law for a
year for failing to report Casey's misconduct, describing Himmel's
and the client's conduct as compounding Casey's crime.
The Illinois court said: "This failure to report resulted in
interference with the Commission's investigation of Casey, and thus
with the administration of justice. Perhaps some members of the
public would have been spared from Casey's misconduct had
respondent reported the information as soon as he knew of Casey's
conversion of client funds."
Rule 8.3 has also been used to deny reinstatement to the
practice of law when the petitioner refuses to disclose information
about co-conspirators despite receiving immunity from prosecution.
In re William A. Borders, Jr., 665 A.2d 1381 (D.C.Ct.of App. 1995)
involved an application for reinstatement by a co-conspirator in
the solicitation of bribes from criminal defendants in exchange for
lenient treatment by then U.S. District Judge Alcee Hastings. Mr.
Borders repeatedly refused to identify other co-conspirators
despite grants of immunity. The court rejected the application,
finding that he had not established his fitness to resume the
practice of law.
The court said: "The Hearing Committee found petitioner's
'commitment to silence about the events [to be] longstanding and
deeply felt,' but one contrary to his ethical obligations as an
attorney. The Board agreed, and we do also. An attorney is
obligated under … Rule 8.3 of the Rules of Professional Conduct to
report misconduct of other attorneys and judges." See also, In re
Anglin, 122 Ill.2d 531,537 (1988) ("Petitioner's refusal to answer
questions about the involvement of other persons in his possession
of the stolen securities also evidences a present and future
inability to conform to the Code of Professional Conduct").
The good news for lawyers is the absolute privilege arising from
Rule 8.3 reports to bar counsel. Rule 4:01, §9(1) ("Complaints
submitted to the Board or to the bar counsel shall be confidential
and absolutely privileged."); Bar Counsel v. Farber, 464 Mass. 784
(2013) (complainants and witnesses have absolute immunity for
testimony given to the Board, hearing committees, special hearing
officers, and hearing panels); see also, Weber v. Cueto, 568 N.E.
2d 513 (Ill App. Ct. 1991) ("we hold that the communication made by
the defendant Cueto to members of the Madison County Board pursuant
to Disciplinary Rule 1-103(a) is cloaked with an absolute
privilege"). So the Rule 8.3 compliant lawyer may be seen as a
"betrayer of his group" and "a bum of a person," but at least he
will not be successfully sued by the person reported.
Richard P. Campbell is a fellow of the American
College of Trial Lawyers and a past president of the Massachusetts
Bar Association. He founded Campbell Campbell Edwards & Conroy,
P.C., a firm with a national practice, in 1983.
Suzanne Elovecky practices at Todd & Weld LLP,
where she enjoys a diverse complex commercial litigation practice
representing individuals and corporations in contract disputes,
employment disputes, automobile dealership matters, shareholder
disputes, and trademark, trade secret and copyright disputes.
Suzanne is a member of the Women's Bar Association, the Boston Bar
Association and the Massachusetts Bar Association (Complex
Commercial Litigation Committee; Professional Ethics