Tuesday, July 26, 2016

South Carolina opinion finds lawyer can wait until litigation is over to report misconduct under rule 8.3

The South Carolina bar's ethics committee has issued an opinion (S.C. Bar Ethics Advisory Comm., Op. 16-04, 7/18/16) holding that a lawyer who believes an opposing attorney in a pending matter has committed professional misconduct may wait until the proceeding concludes to make a disciplinary report.

The generally accepted rule on this is that if the rule applies, attorneys must disclose misconduct "promptly."  However, it is not always clear what "promptly" means.  In the well known In re Himmel case in Illinois, the affected attorney argued that he did not want to disclose the misconduct because doing so would be contrary to his client's interests.  The attorney wanted to wait until he got his client the compensation the client wanted before disclosing.  In that case, the court did not buy the argument.

Yet, it appears the SC committee agrees with it, holding that a lawyer may wait until the conclusion of the matter if the lawyer determines immediate reporting may hurt the client. However, the misconduct should be reported “promptly” at the conclusion of the litigation or appeal.  Thus, the committee concluded that “it is appropriate for a lawyer to consider any potential adverse impact to his or [her] client in determining the timing of a report against another lawyer.”

I understand the spirit of the opinion, but it seems to me it does not take into account that civil litigation can take years to conclude.  Indeed, although not all cases take years to conclude, it is certainly not uncommon for some cases to last a long time.  Should that make a difference?  And what if the representation is not in litigation? 

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