Don’t Call Another Lawyer Unethical Without Reporting Lawyer’s Misconduct

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Nov. 25 — Iowa lawyers must not call another attorney unethical unless they're going to report that person to the disciplinary board, the Iowa bar's ethics committee advised Oct. 24.

The opinion also makes clear that lawyers can't cover their tracks by “warning” the other lawyer of a “potential” ethics violation. Such a warning violates Iowa professionalism standards if it is really a threat or effort to compel something, the committee said.


Accusation

“Is it unethical to call a fellow lawyer unethical?” is the question the opinion addresses.

ABA Opinion on Disciplinary Threats

ABA Formal Ethics Op. 94-383 (1994), which addressed the subject of threatening opposing counsel with a disciplinary complaint to induce a civil settlement, advised that this threat may not be made when the alleged misconduct raises a substantial question about opposing counsel's honesty, trustworthiness or fitness as a lawyer, because in that situation the lawyer is ethically required to report the misbehavior under Model Rule 8.3.

The committee also said such a threat would be improper if the misconduct is unrelated to the civil claim, if the disciplinary charge is not well founded or if the threat has no real purpose other than embarrassing, delaying or burdening opposing counsel or that lawyer's client.

See generally “Threats May Bring Disciplinary Trouble, Even Without Specific Rule,” 28 Law. Man. Prof. Conduct 315.


The committee said the self-policing feature of the legal profession is implemented by Rule 8.3 of the Iowa Rules of Professional Conduct, which commands that lawyers “shall inform the appropriate professional authority” when they know another lawyer has violated a professional conduct rule.

(Although the committee did not mention this point, the Iowa rule lacks the qualifier in Model Rule 8.3 that limits the reporting duty to rule violations that raise a serious question about the lawyer's honesty, trustworthiness or fitness to practice.)

The committee emphasized that Iowa Rule 8.3 is mandatory, not discretionary. “One who makes the allegation must report it to the Iowa Supreme Court Attorney Disciplinary Board,” the opinion states.

Moreover, the panel said, a lawyer's failure to make the required report is itself a violation of Rule 8.4(a), which classifies any breach of the lawyer conduct rules as professional misconduct.

Allegation of Dishonesty

The committee gave the same cautionary guidance about accusing a lawyer of fraud, dishonesty or deceit. Such behavior is forbidden by Rule 8.4(c), and assertions of that misconduct are serious, the panel noted.

A lawyer who accuses another attorney of dishonesty has an obligation under Rule 8.3 to report it to the disciplinary board, the committee said. “Consequently these allegations should never be made to obtain a tactical advantage or to coerce action,” the opinion states.

The committee said the ABA ethics committee came to a similar conclusion in a 1994 opinion. (See box.)

Tactical ‘Warning.'

The committee noted that sometimes lawyers use a tactic of “warning” opposing counsel of the “potential” for an ethics violation, in an effort to get around the duty to report under Rule 8.3 and avoid a violation of Rule 8.4 for failure to report.

When this warning is issued as a threat, or with the ulterior motive of coercing opposing counsel to do or not do a particular act, it violates the Iowa Supreme Court's Standards for Professional Conduct, the committee said.

According to the panel, such a warning violates Iowa Supreme Court Rule 33:1(1), which calls for a lawyer's conduct to be characterized by personal courtesy and professional integrity, and Rule 32:1(3), which condemns lawyer conduct that is uncivil, abrasive, abusive, hostile or obstructive.

“Wrongfully accusing a fellow lawyer of unethical conduct, fraud, dishonesty or deceit to gain advantage is the antithesis of professionalism,” the opinion states.

Full text at http://tinyurl.com/krdc9rq.

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