Calling BS On Meaningless “Reform”

I have seen a number of posts recently touting the California State Bar’s adoption of Rule 8.3 (reporting professional misconduct) in the wake of scandalous behavior in the Tom Girardi matter as a “major reform.”

Allow me to call BS.

The Rule is virtually never enforced and has little to no teeth on the rare occasions when it is.

See Maine’s experience here, where several partners in a prominent law firm got the lightest of wrist slaps  (dismissal with warning) for failing to report a thieving partner 

The parties do not dispute that by July of 2007, these six attorneys had actual knowledge that Duncan had, on fourteen occasions over a period of three years, deposited client funds totaling $77,500 into his personal bank account. The single justice applied the required subjective standard, and found that the six attorneys believed Duncan’s conduct was “an aberrant event by an otherwise honest and trustworthy individual that had not spread wider than this single account and would not be repeated.” The single justice also found that this understanding of Duncan’s behavior by the six attorneys persisted throughout the summer of 2007, and continued until October of 2007, when they realized that Duncan’s assertions that he had taken funds from only one client account were untrue. The single justice concluded that the Board failed to prove, by a preponderance of evidence, that the six attorneys violated Rule 3.2(e)(1), based on its determination that the six attorneys “did not believe that the perceived-to-be aberrational misapplication of firm funds from one account . . . [was] an action that, in light of Duncan’s thirty-year history, ‘rais[ed] a substantial question as to another lawyer’s honesty, trustworthiness, or fitness as a lawyer.’” (Quoting M. Bar R. 3.2(e)(1).)

We are bound to uphold the single justice’s finding that the six attorneys did not subjectively question Duncan’s honesty, trustworthiness, or fitness to practice law if there is any competent evidence in the record, including any reasonable inferences, to support that finding.

The court was “shocked, shocked” 

We recognize that these six attorneys, comprising Verrill Dana’s executive committee, were caught completely “off guard” by Duncan’s conduct. We also recognize that they dealt with Duncan with compassion, and there is no suggestion of bad faith in their failure to refer his conduct to Bar Counsel or to individuals in the firm who were more capable of assessing the need for action, such as the firm’s own counsel. However, we cannot ignore that, when faced with the significant malfeasance of a self-destructing partner, none of the attorneys even recognized that the Maine Code of Professional Responsibility required them to contemplate reporting that partner’s conduct and subsequent breakdown. Notwithstanding the single justice’s factual findings, when a firm’s practices and policies do not require the firm’s leadership to at least consider whether it has an ethical obligation to report a colleague in the circumstances presented by this case, we are compelled to find, as a matter of law, that the firm failed to have in effect “measures giving reasonable assurance that all lawyers in the firm conform to the Code of Professional Responsibility.”

Then there’s this Louisiana case, where an attorney’s untimely report that a former colleague sent an innocent man to death row kept him there for years and drew a reprimand along with some hollow sentiment

Reporting another lawyer’s misconduct to disciplinary authorities is an important duty of every lawyer. Lawyers are in the best position to observe professional misconduct and to assist the profession in sanctioning it. While a Louisiana lawyer is subject to discipline for not reporting misconduct, it is our hope that lawyers will comply with their reporting obligation primarily because they are ethical people who want to serve their clients and the public well. Moreover, the lawyer’s duty to report professional misconduct is the foundation for the claim that we can be trusted to regulate ourselves as a profession. If we fail in our duty, we forfeit that trust and have no right to enjoy the privilege of self-regulation or the confidence and respect of the public.

Spare the kudos until this Rule gets enforced in a meaningful way. 

Until then it’s just window dressing to justify indefensible self-regulation. (Mike Frisch)