Editor’s Note: The Campbell Law Observer has partnered with the Wake County Bar Association & Tenth Judicial District to occasionally re-publish articles from the Professionalism Committee. The following article was recently published on the WCBA’s Professionalism Committee blog.
I, like many of you, have never really considered myself to be a “policeman,” or perhaps more appropriately, a “law enforcement officer.” For one, law enforcement officers wear holsters on their hips with guns and handcuffs hanging off them. The only holster I ever wore was as a young child, when I was channeling the actor Clayton Moore and pretending to be “The Lone Ranger.” But even though I don’t wear a holster with a six-shooter and ride a blazing white stallion by the name of “Silver,” I understand that we, as attorneys, have all been deputized by our licensing body so as to maintain law and order within our professional community.
Rule 8.3(a) of the Model Rules of Professional Conduct, as adopted by the NC Bar states:
“A lawyer who knows 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 North Carolina State Bar or the court having jurisdiction over the matter.”
Under the North Carolina State Bar, and amongst our peers, we are all “Officers of the Legal System.” We are charged with the solemn duty of policing ourselves and our profession, lest we ever reach a time when we are no longer considered by the public at large to be honest, trustworthy, and fit to carry on as an independent body of professionals. It is an honor and a privilege that we are allowed to police ourselves, and we owe a duty to every member of our profession, and ourselves individually, to ensure that all of us are living up to the standards which we hold as establishing the responsible and ethical practice of law.
As officers of the legal system, it is our duty to protect those who we see or know to be the victims of the misconduct of our colleagues.
Our primary obligation, as officers of the legal system, is not really any different from that of police officers. Our duty is to the public at large, to take notice and to protect them from those who would hold themselves out as attorneys, but who fail to live up to the standards of conduct and follow the rules we all swore an oath to abide by when we were allowed to join the practice of law. The average citizen has little, if any, knowledge of the Model Rules of Professional Conduct. As such, they are less likely to recognize when an attorney is, for instance, engaging in conflict of interest that may be, or in fact is, detrimental to their client’s respective interests. As officers of the legal system, it is our duty to protect those who we see or know to be the victims of the misconduct of our colleagues.
Rule 8.3(a) of the Model Rules of Professional Conduct states that we are required to report a fellow attorney when that individual attorney’s conduct raises a substantial question in our mind as to that attorney’s honesty, trustworthiness, or fitness with regards to the ethical practice law. The comments that follow the rule shed further light on what is meant by these terms:
“This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent…..A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term “substantial” refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware.”
– Comment , Rule 8.3 of the Model Rules of Professional Conduct
“Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense.”
– Comment , Rule 8.3 of the Model Rules of Professional Conduct
In addition, the Ethics Opinions Notes provide that “a lawyer who acquires knowledge of apparent misconduct must report the matter to the State Bar.”3 Bear in mind that an attorney’s misconduct may just be an isolated incident resulting from a momentary lapse in judgment. If so, such misconduct may not raise a “substantial” question as to the offending attorney’s fitness to be a lawyer. The lawyer who has knowledge of this type of isolated misconduct may want to counsel the attorney in question with regards to his/her misconduct. Under these types of circumstances, the lawyer is not required to report the misconduct to the State Bar. However, if the offending attorney continues the misconduct, after being advised that his/her conduct is a violation of the rules, then the lawyer should report the matter to the State Bar, or other appropriate authority.4
It is incumbent upon us all to do what is necessary to uphold the name of our fair profession and to live up to the standards we’ve set for ourselves as officers of the law.
It is my hope that such incidents rarely if ever happen. And yet, as I say this, it seems that every year a number of our peers are either disciplined or disbarred for their professional misconduct. It is incumbent upon us all to do what is necessary to uphold the name of our fair profession and to live up to the standards we’ve set for ourselves as officers of the law. I suggest that we continue, as always, to be courteous to our colleagues in our continued day-to-day interactions, but that we also be mindful of the fact that we all carry a metaphorical badge with a silver star on it just inside our breast pockets. If we see a colleague conducting themselves in a questionable manner, then we should not hesitate to step in and address the matter. After all, one attorney’s misconduct reflects negatively on all of us.
Hopefully, this will give you all some food for thought. If so, then I’ve accomplished what I set out to do when I started writing this article. And, with that being said, this cowboy is going to jump on his horse and head out for another day on the open range. A Happy Holidays to you all and, “Hi Ho Silver Away!”