Ethics Corner Article

New Hampshire Bar News – January 13, 2012

Dear Ethics Committee: I am involved in contentious litigation with a company represented by a lawyer who does not return my calls and emails for days at a time, even when there are deadlines looming and I need to discuss case management or discovery issues. The lawyer’s lack of responsiveness has required me to expend additional time and effort, which I then have to charge to my client. After reviewing New Hampshire’s Rules of Professional Conduct, (“Rules”) I have identified several rules that the lawyer might be violating, including the rule on fairness to opposing party and counsel. I also see that New Hampshire lawyers have an obligation to report professional misconduct. Would I violate the Rules if I do not report the lawyer’s misconduct to disciplinary authorities?

No, you would not violate the Rules if you failed to report. Even assuming the lawyer’s dilatory behavior violates New Hampshire’s Rules, the Rules do not require lawyers to report every ethics violation to disciplinary authorities. Otherwise, the failure to report every Rule violation would itself be professional misconduct.

Rule 8.3, Reporting Professional Misconduct, mandates reporting to disciplinary authorities only when the lawyer “knows” of a violation that “raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” This is a fairly high threshold that requires some judgment on the part of the reporting lawyer in determining whether there is “knowledge” of a Rule violation that implicates the other lawyer’s “honesty, trustworthiness or fitness” to practice law. Your situation does not appear to meet either test.

With regard to the first criterion of knowledge, you would need actual knowledge of the fact that the other lawyer has committed a certain type of Rule violation, unless your knowledge could be inferred from the circumstances. See Rule 1.0(f). Here, you must know that the lawyer has failed to make a “reasonably diligent effort” to comply with legally proper discovery requests in order to conclude that he violated Rule 3.4, Fairness to Opposing Party and Counsel. The lawyer might have made reasonably diligent efforts under the circumstances, which were unacceptable to you and might warrant motions to the court to compel discovery, but which arguably do not constitute a violation of Rule 3.4.

The second criterion on whether the Rule violation raises a substantial question as to honesty, trustworthiness or fitness as a lawyer is generally limited to “those offenses that a self regulating profession must vigorously endeavor to prevent.” 2004 ABA Model Code Comment [3]. The term “substantial” refers to the seriousness of the possible offense and not the quantum of evidence. Id. The most obvious example involves lying or stealing, but other types of conduct can certainly raise a substantial question on a lawyer’s ability to practice, such as physical, mental or emotional impairment. See ABA Formal Ethics Op. 03- 431 (2003).

In your situation, unless opposing counsel’s conduct is part of a larger pattern of behavior that indicates the lawyer is dishonest, untrustworthy or otherwise unfit to practice law, it does not appear to trigger your obligation to report professional misconduct. However, keep in mind that suspected Rule violations can be referred to disciplinary authorities even if not mandated under Rule 8.3, as “an apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover.” 2004 ABA Model Code Comment [1].

The Ethics Committee provides general guidance on the NH Rules of Professional Conduct with regard to a lawyer’s own prospective conduct. New Hampshire lawyers may contact the Ethics Committee for confidential and informal guidance by emailing the Ethics Committee Staff Liaison. Brief ethics commentaries based upon member inquiries and suggestions will be published monthly in the NH Bar News.