Must you 'snitch' when it involves another lawyer's misconduct?

Visualize yourself in a proceeding where you know the other attorney is being negligent in representing his client. Should you say something to the adverse party or to the state bar?

Go one step further. You are representing the adverse party in an action against the first attorney. The first attorney agrees to settle but requires non-disclosure of the alleged act of negligence and the settlement. You discuss this with your client and advise agreement in the client's best interests.

The result: the state bar takes disciplinary action against you for not disclosing the problem!

This, in a nutshell, was what happened almost 20 years ago in an Illinois case, In re Himmel, which still reverberates in the legal community. In this case, Himmel, an attorney with 11 years of experience, was retained to help a client recover money that her prior lawyer, Casey, had misappropriated.

Himmel investigated the matter by interviewing the client (in the presence of family members), Casey's insurance company and Casey, himself. Himmel negotiated a settlement with Casey in which the client agreed not to pursue disciplinary action and to keep the settlement confidential. Himmel never reported Casey to the state bar disciplinary authorities.

The Illinois Supreme Court later suspended Himmel for one year because he possessed unprivileged knowledge of illegal conduct and did not report it. The court rejected Himmel's defense that his client had directed him not to report the conduct and thus preserve the settlement.

The court stressed that a lawyer, as an officer of the court, is duty-bound to uphold the ethical rules, and cannot shirk this obligation merely because his client asks him to do so.

The court also rejected Himmel's claim that the information he had was privileged because he had received it from his client. The justices pointed out that the information Himmel obtained from his client was voluntarily disclosed in the presence of third parties, and that information obtained from the insurer and Casey, himself, was not privileged.

A number of states require lawyers to report misconduct by another lawyer if that knowledge is not otherwise protected by confidence.

Massachusetts Rule of Professional Conduct 8.3, for example, requires that "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," but adds that "a report about misconduct is not permitted or required where it would involve violation of [confidentiality] Rule 1.6 ..."

The court in Himmel concluded that confidence did not exist. What about other instances? Say you are working with co-counsel, and you notice that the lawyer's website says he "specializes" in personal injury case. However, your state bar does not have a professional certification in personal injury law.

Do you report your co-counsel to the bar? It's a decision each lawyer could potentially face, with the wrong decision leading to problems with the state bar disciplinary system, regulators and prosecutors.

The bottom line is clear: When in doubt, don't assume. Seek guidance from the state bar ethics and disciplinary authorities.