Reporting Attorney Misconduct: The “Fitness as a Lawyer” Factor

View Part 1. View Part 2.

In this last part of a series about reporting misconduct under Rule 8.3, we will examine the requirement that the misconduct in question “raises a question as to the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” If the lawyer possesses unprivileged knowledge of misconduct then this last requirement must also be satisfied before reporting the misconduct is required by rule 8.3.

This last element truly calls for the subjective judgment of the lawyer faced with the prospect of reporting misconduct. As Board of Professional Conduct Opinion 2007-1 states, a “lawyer must use professional judgment in determining what misconduct raises a question as to a lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” The OSBA “green book” is full of examples of lawyer misconduct that we can all agree meets this test. For example, virtually any misconduct involving fraud, dishonesty, deceit or misrepresentation, as well as any conduct involving the misappropriation of client funds, easily meets this test.

The difficult scenario is one in which it is not clear that the misconduct raises a question about the lawyer’s honesty or trustworthiness. It is important to keep in mind that one can file an anonymous grievance, as well as the fact that all grievance investigations are confidential. Only if the matter is certified, meaning probable cause is found by the Board of Professional Conduct, does it become public. While no lawyer wants to have a reputation of having reported another lawyer, it is incumbent upon all of us to police our own profession and to ensure that the public is not at risk. A good rule of thumb when it doesn’t seem obvious that the conduct raises a question about the lawyer’s honesty or trustworthiness is to ask other lawyers. Finally, as the Board opinion states, “If a lawyer has doubts as to whether misconduct raises questions as to the honesty, trustworthiness, or fitness as a lawyer, he or she should err on the side of reporting.”

To properly comply with the reporting requirement of Rule 8.3, the report must be made to a disciplinary authority. In Ohio, that would be a certified grievance committee or the Office of Disciplinary Counsel. Under the old Code of Professional Responsibility, reporting the misconduct to a judicial officer was permissible- that is no longer the case.