Self-regulation and the 'snitch rule'

Issue September/October 2017 By Richard P. Campbell and Suzanne Elovecky

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 [1] to the ABA Model Rule 8.3: Maintaining The Integrity Of The Profession, Reporting Professional Misconduct.

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 for missteps.

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 [3] 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 justice."

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 Committee).