I have discovered that many attorneys are unfamiliar with their obligations regarding reporting allegations of attorney misconduct. Lack of reporting is problematic for multiple reasons, including that failure to report may itself be professional misconduct. I hope to provide some guidance and clarification regarding reporting obligations in an effort to educate both the Bar and the public and hopefully prevent attorneys from landing themselves in trouble!

First, it must be acknowledged that reporting misconduct is vital because it allows for self-regulation of the profession and facilitates investigations into misconduct that could reveal bigger issues or patterns that would otherwise go unnoticed.¹ Often, reporting suspected misconduct is optional, but there are circumstances where it is mandatory. Failure to report when mandatory could result in a finding that the non-reporting lawyer engaged in misconduct. Most importantly, Michigan Rule of Professional Conduct (MRPC) 8.3(a) states: “A lawyer having knowledge that another lawyer has committed a significant violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer shall inform the Attorney Grievance Commission.”²

MRPC 1.0 and the comment to MRPC 8.3 define and discuss some relevant terms, including what it means to have knowledge. Similar to MRPC 8.3(a), MRPC 8.3(b) states that “[a] lawyer having knowledge that a judge has committed a significant violation of the Code of Judicial Conduct that raises a substantial question as to the judge’s honesty, trustworthiness, or fitness for office shall inform the Judicial Tenure Commission.”

Because judges are also lawyers, they can sometimes be obligated to report misconduct pursuant to MRPC 8.3.³ Judges also have additional duties to report certain types of misconduct.⁴

MANDATORY REPORTING

You may wonder why reporting misconduct is not always mandatory. This is because imposing a duty to report all misconduct, even minor transgressions, is an impractical requirement to impose on lawyers.⁵ Instead, a system has been designed where, subject to some exceptions, the most severe and egregious misconduct must be reported while most other misconduct may be reported.

Examples of when reporting is mandatory (unless MRPC 1.6 applies, which is discussed later) include a lawyer practicing with a suspended license, attempting to enter into an agreement that restricts reporting violations of the rules of ethics, and repeatedly failing to meet filing deadlines.⁶ Additional examples of when reporting may be required include (but are not necessarily limited to) when you know another lawyer has not communicated a settlement offer to their client,⁷ has negotiated a settlement directly with a party represented by counsel,⁸ misappropriation,⁹ fraudulent billing practices,¹⁰ when a lawyer misses a hearing without informing the court and securing stand-in counsel,¹¹ unethical fee arrangements,¹² serious neglect of a case,¹³ and other significant acts of misconduct.¹⁴ An attorney’s failure to pay court-ordered sanctions does not always trigger the duty to report, but it can depending on the circumstances.¹⁵

Though it is only tangentially related, this is a good place to remind lawyers of their duty pursuant to MRPC 3.3 to take remedial steps if you discover that false evidence has been introduced, which sometimes requires revealing information that would otherwise be protected from disclosure by MRPC 1.6.¹⁶

Attorneys and judges who become aware that another lawyer has not promptly turned over funds which were to be held in a trust or fiduciary capacity may have a reporting obligation under MRPC 8.3. Probate cases are a particularly ripe area for misappropriation; probate judges and attorneys should be extra vigilant of any irregularities.

Attorneys should also report the unauthorized practice of law to the State Bar of Michigan Unauthorized Practice of Law Committee.¹⁷ When the unauthorized individual is a disbarred or suspended attorney (regardless of whether the suspension is administrative or disciplinary), a report should be made to the Attorney Grievance Commission.¹⁸

A supervising lawyer with knowledge that a subordinate lawyer has committed significant violations is required to report under MRPC 8.3.¹⁹ Also, MRPC 5.1 requires a supervising lawyer to take precautionary and remedial measures to ensure that subordinate lawyers do not violate the MRPCs and “[a] failure to take remedial action or to notify the Attorney Grievance Commission may subject that supervising lawyer to discipline.”²⁰

Lawyers may also be obligated to report certain actions of law students to bar admissions authorities.²¹

Sometimes, the duty to report is clear; other times, it requires careful analysis of relevant facts and consulting ethics resources. If you are in doubt about whether you are required to file a report, the best course of action is usually filing just to be safe.

LIMITS TO REPORTING

As earlier noted, sometimes an attorney cannot report misconduct even if otherwise required to.²² Reporting misconduct is limited when doing so requires revealing information protected by the duty of confidentiality (MRPC 1.6) and the client has not consented to the disclosure of protected information.²³ Attorneys should familiarize themselves with MRPC 1.6 to determine what information is protected and when a disclosure may be made.²⁴

Even when MRPC 1.6 applies, the comments to MRPC 8.3 state that an attorney should encourage a client to consent to a lawyer reporting misconduct when doing so would not substantially prejudice the interests of the client. An attorney is not excused from the obligation to report if reporting would not violate MRPC 1.6 but the client does not want a report to be made.²⁵

To encourage judges and lawyers to seek assistance, MRPC 8.3(c) (2) does not require disclosure of “information gained by a lawyer while serving as an employee or volunteer of the substance abuse counseling program of the State Bar of Michigan, to the extent the information would be protected under Rule 1.6 from disclosure if it were a communication between lawyer and client.” The comment to MRPC 8.3 further states that “[t]he duty to report professional misconduct does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question. Such a situation is governed by the rules applicable to the client-lawyer relationship.”

TIMELINESS IN REPORTING

So, you’ve determined that an attorney has committed a violation that triggers your duty to report and MRPC 1.6 doesn’t prevent you from reporting. How quickly do you have to file the report?

Unfortunately, neither MRPC 8.3 nor its comment provide a timeframe. Attorney discipline case law and ethics opinions likewise provide limited guidance. In fact, in this author’s review of case law, only one case squarely addressed the timeliness of a report — Grievance Administrator v. Michael L. Stefani.²⁶

In dismissing an allegation that the respondent had violated MRPC 8.3, the hearing panel in Stefani found that whether a report was timely was an issue of first impression in Michigan. The panel then reviewed case law from other jurisdictions suggesting that reports must be made promptly,²⁷ although, as was the case in Stefani, “promptly” does not necessarily mean immediately and determining what constitutes “prompt” requires looking at the specific circumstances of the case. The panel’s decision regarding MRPC 8.3 was not challenged on appeal — even though other aspects of the ruling were — and was thus not addressed by the Attorney Discipline Board (ADB). Therefore, while the panel’s reasoning may be used as guidance, it is not considered binding precedent.

Also, it should be noted that unlike ADB opinions and orders, complete panel reports and orders aren’t normally available on the ADB website — typically, a short summary of the outcome is posted — so it is possible that other panels have addressed this issue. Given the ambiguity of what is considered timely, a good rule of thumb is that an attorney should report misconduct as soon as possible after their duty to report is triggered to avoid any issues.

OTHER REPORTING REQUIREMENTS

In addition to the obligations pursuant to MRPC 8.3, attorneys also have other reporting requirements. MCR 9.120(A)(1) mandates that when an attorney is convicted of a crime, the convicted attorney, their defense attorney, and the prosecutor must report the conviction to the ADB and Attorney Grievance Commission within 14 days. Reports made directly to the State Bar do not fulfill the requirement. The 14-day clock starts on the date of conviction, not the date of sentencing.²⁸ Sometimes, one letter jointly signed by the convicted attorney, their defense attorney, and the prosecutor fulfills the reporting obligation.²⁹ If the defense attorney is providing notice on behalf of the convicted attorney, it should be signed by both or at least state the report is made on behalf of the convicted attorney. A “c.c.” with the convicted attorney’s name is not sufficient. The reporting obligations under MCR 9.120(A) are separate from, and not satisfied by, any required disclosures on your annual license renewal.³⁰ The duty of confidentiality under MRPC 1.6 does not prevent lawyers from reporting the criminal conviction of the lawyer’s attorney client. Civil infractions are not criminal convictions and need not be reported under MCR 9.120(A), although MRPC 8.3 could still be implicated depending on the circumstances.³¹ If a lawyer is convicted of a crime in another state that is a civil infraction in Michigan, it still needs to be reported pursuant to MCR 9.120(A) (1). Criminal contempt convictions need to be reported under MCR 9.120(A). Civil contempt findings do not trigger MCR 9.120(A) but may implicate the reporting obligation of MRPC 8.3. Failure to report a conviction in violation of MCR 9.120(A)(1) may result in a finding of misconduct and can be viewed as an aggravating factor in disciplinary proceedings that may arise from the conviction.³²

Similarly, MCR 9.120(A)(2) states:

A lawyer who has been the subject of an order of discipline or transferred to inactive status by any court of record or any body authorized by law or by rule of court to conduct disciplinary proceedings against attorneys, of the United States, or of any state or territory of the United States or of the District of Columbia, or who has resigned from the bar or roster of attorneys in lieu of discipline by, or during the pendency of, discipline proceedings before such court or body shall inform the grievance administrator and board of entry of such order, transfer, or resignation within 14 days of the entry of the order, transfer, or resignation.

The duty to report criminal convictions and discipline orders from other jurisdictions is not explicitly mentioned in the MRPCs, which sometimes causes confusion and delays in reporting or failures to report. However, the fact that the MRPCs do not explicitly mention the duty to report criminal convictions and discipline orders from other jurisdictions is not a valid excuse for failing to properly report because attorneys must be familiar with the rules governing them. Information about MCR 9.120 is available on the SBM website³³ and reminders routinely appear in the Michigan Bar Journal.³⁴

CONCLUSION

Attorneys must know their reporting obligations to avoid landing in trouble and help facilitate proper self-regulation of our profession. Information on reporting attorney misconduct can be found on the Attorney Grievance Commission website;³⁵ likewise, information on reporting judicial misconduct can be found on the Judicial Tenure Commission website.³⁶ Attorneys with questions regarding their reporting obligations can contact the SBM Ethics Helpline or review the various ethics opinions and other materials available on the SBM Ethics website.³⁷