21. Unethical and Unprofessional Misconduct by Another Lawyer

The following points are provided to facilitate a discussion about a lawyer's obligation to report lawyer misconduct, including the appropriate way to handle situations where the new lawyer believes another lawyer has committed an ethical violation and where the new lawyer has been asked by a senior member of the firm to do something that is unethical or unprofessional.

1. Review Disciplinary Rule 8.3 and discuss a lawyer's obligation to report lawyer/judge misconduct, including the reasons why lawyers should report other lawyers' misconduct and to whom such misconduct should be reported.
2. Discuss the concept of “unprotected knowledge” in the context of the misconduct.
3. Discuss the types of factors which should be considered in determining whether misconduct should be reported to a tribunal, disciplinary agency, prosecutor's office, or other authority.
4. Discuss the following situations and suggest the most appropriate authority (if any) to whom the conduct should be reported and the reasons therefore:
5. a.Continuous discovery abuse by opposing counsel;
6. b.Opposing counsel filing frivolous lawsuits or lawsuits merely to harass your client;
7. c.Egregiously unprofessional conduct during litigation;
8. d.Suspected theft by an attorney of a former client's funds;
9. e.Suspected financial misconduct by a lawyer who is guardian for an incompetent person;
10. f.An attorney's failure to pay expert fees or other costs of litigation;
11. g.Theft of IOLTA monies by a lawyer in your firm;
12. h.Abusive and disrespectful behavior toward counsel and/or witnesses by a judge;
13. i.Client neglect because of suspected substance abuse or mental health issues of another attorney;
14. j.Erratic and unfair behavior by a judge because of suspected substance abuse or mental health issues;
15. k.Opposing counsel representing a party with whom there is a conflict of interest; and
16. I.Unauthorized practice of law by an attorney licensed in a jurisdiction other than Illinois.
5. Discuss a lawyer's obligation to assist in and provide information about a lawyer or judge's conduct in an inquiry by a tribunal or other authority investigating that lawyer or judge.
6. Discuss the appropriate action for a new lawyer who suspects that a partner in the firm has committed misconduct. Discuss the procedure when an associate in the firm is suspected of misconduct.
7. Discuss what the new lawyer could do: if unsure whether a partner or associate's conduct is inappropriate and suspects that it might be; if a superior in the new lawyer's firm instructs the new lawyer to do something that the new lawyer believes to be unethical, such as under/over-reporting billable hours and if the pairing is internal, what internal resources exist, if any?
8. Suggest resources that the new lawyer can consult for making important ethical decisions, including the following:
9. a.Procedure for obtaining in-house ethics advice (if you are in an in-house mentoring relationship).
10. b.How to find outside ethics counsel and when such action is recommended.
11. c.Identify ethics resources and the importance of supplementing general ethics resources with independent research on Illinois disciplinary case law when the ethics resources reviewed are not based on the Illinois Rules of Professional Conduct.
12. d.Identify ethics inquiry services of bar association(s).
9. Discuss procedures for requesting or researching ethics advisory opinions of bar associations or the Illinois Attorney Registration and Disciplinary Commission.

© 2007 and 2011 Revised Edition by Illinois Supreme Court Commission on Professionalism