The Attorney's Duty to Report Professional Misconduct: A Roadmap for Reform
87 Pages Posted: 30 Jan 2003
The duty to report professional misconduct is one that every lawyer faces, but about which there is great uncertainty. Whether to impose a duty at all is in sharp dispute, with the argument closely balanced. The most common rules in place today implementing such a duty are poorly drafted and result in substantial costs both to those that report and those that are reported. The rules are replete with ambiguities and omissions making compliance difficult for those that practice under them.
In this piece, I critically assess the competing arguments for and against a mandatory reporting rule and illustrate that they often are flawed, or at least unsupported. Nevertheless, it is clear that the vast majority of the states and the ABA presently favor mandatory reporting and will continue to do so in the absence of a more compelling case to dispense with such rules.
Since it is likely that most lawyers will continue to practice under reporting rules for the foreseeable future, it is important to get them right. From reviewing the rules as they have been applied across the states, I identify ten fundamental questions that rule drafters should address, the policy choices presented, and suggestions for their resolution. With the vast majority of states presently undertaking a thorough reexamination of their own rules of professional conduct, this article provides a unique framework to guide those actions with respect to the lawyer's duty to report professional misconduct.
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