Discipline and reporting - Regulation after admission—lawyer...

Learning Outcomes

After reading this article, you will be able to identify the main grounds for lawyer discipline after admission, explain the duty to report professional misconduct, and recognize the roles of supervisory and subordinate lawyers in disciplinary matters. You will also understand the types of sanctions and the scope of disciplinary authority, equipping you to answer MPRE questions on lawyer regulation and reporting obligations.

MPRE Syllabus

For the MPRE, you are required to understand how lawyers are regulated after admission to the bar. This includes the rules governing professional misconduct, the duty to report violations, and the disciplinary process. You should be able to:

• Distinguish between professional discipline and other forms of liability (civil, criminal, litigation sanction).
• Identify conduct that constitutes professional misconduct under the Model Rules.
• Explain the duty to report another lawyer’s or judge’s serious misconduct.
• Recognize the responsibilities of partners, managers, and supervisors for others’ misconduct.
• Understand the disciplinary authority of multiple jurisdictions.
• Describe the types of sanctions that may be imposed for violations.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is NOT a ground for professional discipline?
   1. Committing a crime involving dishonesty
   2. Violating the Model Rules through another’s actions
   3. Losing a civil lawsuit unrelated to law practice
   4. Knowingly assisting a judge in violating judicial conduct rules
2. A lawyer learns that a colleague has misused client funds. What is the lawyer’s duty?
   1. Report only if the client was harmed
   2. Report if the conduct raises a substantial question about honesty or fitness
   3. Report only if the lawyer is a partner
   4. No duty to report unless asked by a client
3. A subordinate lawyer follows a supervisor’s clear instruction to file a frivolous lawsuit. Is the subordinate subject to discipline?
   1. Yes, unless the supervisor’s instruction involved an arguable question of professional duty
   2. No, if the supervisor ordered it
   3. Yes, always
   4. No, if the subordinate did not know the lawsuit was frivolous
4. Which statement about disciplinary authority is correct?
   1. Only the state where the lawyer is licensed can discipline the lawyer
   2. A lawyer may be disciplined in any jurisdiction where misconduct occurs
   3. Only federal courts can discipline lawyers
   4. Discipline is limited to criminal convictions

Introduction

Once admitted to practice, lawyers are subject to ongoing regulation by disciplinary authorities. Professional discipline ensures that lawyers maintain honesty, integrity, and fitness to practice. The Model Rules of Professional Conduct set out the standards for lawyer conduct, and violations can result in sanctions ranging from censure to disbarment. Lawyers must also report serious misconduct by peers or judges, and managers in law firms have special responsibilities to prevent and address violations.

Key Term: Professional Misconduct
Conduct by a lawyer that violates the Model Rules of Professional Conduct or involves dishonesty, fraud, criminal acts, or actions prejudicial to the administration of justice.

Grounds for Lawyer Discipline

A lawyer may be disciplined for a range of conduct, not limited to actions taken while practicing law. The main grounds include:

• Violating or attempting to violate the Model Rules, or knowingly assisting or inducing another to do so.
• Committing a criminal act that reflects adversely on honesty, trustworthiness, or fitness as a lawyer.
• Engaging in dishonesty, fraud, deceit, or misrepresentation.
• Conduct prejudicial to the administration of justice.
• Stating or implying an ability to improperly influence a government agency or official.
• Knowingly assisting a judge or judicial officer in violating judicial conduct rules or other law.
• Engaging in harassment or discrimination in connection with law practice.

Key Term: Discipline
The range of sanctions imposed on a lawyer for professional misconduct, including censure, suspension, or disbarment.

Duty to Report Misconduct

Lawyers have an obligation to report serious professional misconduct by other lawyers or judges.

• The duty arises when the conduct raises a substantial question as to honesty, trustworthiness, or professional fitness.
• Reporting is not required if the information is protected by confidentiality rules (e.g., attorney-client privilege).
• Actual knowledge is required, but it may be inferred from the circumstances.

Key Term: Duty to Report
The obligation of a lawyer to inform the appropriate authority of another lawyer’s or judge’s serious violation of professional or judicial conduct rules.

Responsibilities of Partners, Managers, and Supervisors

Lawyers with managerial or supervisory authority in a firm must make reasonable efforts to ensure that all lawyers and non-lawyers comply with the Model Rules.

• Partners and managers must implement measures (such as training and procedures) to prevent violations.
• Supervisors must make reasonable efforts to ensure compliance by those they directly oversee.
• A lawyer is responsible for another’s misconduct if the lawyer orders, ratifies, or fails to take remedial action when possible.

Key Term: Supervisory Responsibility
The duty of lawyers with managerial or supervisory authority to ensure compliance with professional conduct rules by those they oversee.

Key Term: Subordinate Lawyer
A lawyer who acts under the direction of another but remains individually responsible for complying with the Model Rules.

Subordinate Lawyers

A subordinate lawyer must comply with the Model Rules, even when acting under supervision.

• A subordinate is not liable if acting in accordance with a supervisor’s reasonable resolution of an arguable question of professional duty.
• If the issue is clear and not arguable, following orders is not a defense.

Disciplinary Authority and Jurisdiction

A lawyer may be disciplined:

• In any jurisdiction where admitted to practice, even for conduct outside that jurisdiction.
• In the jurisdiction where the misconduct occurs, even if not admitted there.
• For conduct relating to a proceeding before a tribunal, only the rules of the jurisdiction where the tribunal sits apply (unless otherwise specified).

Key Term: Disciplinary Authority
The power of a state or federal court, or other authorized body, to investigate and sanction lawyers for professional misconduct.

Types of Sanctions

Sanctions for professional misconduct vary by jurisdiction and may include:

• Private or public censure (reprimand)
• Suspension from practice
• Disbarment (permanent loss of license)

Other consequences can include litigation sanctions, civil liability, or criminal prosecution, depending on the conduct.

Worked Example 1.1

A lawyer discovers that a partner in her firm has been misappropriating client funds. The lawyer has actual knowledge of the misconduct, which involves dishonesty and could harm clients. What must the lawyer do?

Answer:
The lawyer must report the partner’s conduct to the appropriate disciplinary authority because it raises a substantial question about honesty and fitness. Failure to report may itself be grounds for discipline.

Worked Example 1.2

A junior associate is instructed by a supervising partner to file a lawsuit that the associate knows is frivolous. The associate follows the instruction, believing the partner is responsible.

Answer:
The associate is subject to discipline. Subordinate lawyers must comply with the Model Rules and cannot rely on a supervisor’s direction when the issue is clear and not arguable.

Exam Warning

On the MPRE, do not assume that a lawyer is excused from discipline simply because a supervisor ordered the conduct. Subordinates are only protected if the supervisor’s decision involved a genuinely arguable question of professional duty.

Revision Tip

When reviewing misconduct scenarios, always ask: Does the conduct involve dishonesty, fraud, or a violation of the Model Rules? If so, consider whether reporting or remedial action is required.

Key Point Checklist

This article has covered the following key knowledge points:

• Professional misconduct includes violations of the Model Rules, dishonesty, certain crimes, and prejudicial conduct.
• Discipline can be imposed for actions both in and outside law practice.
• Lawyers must report serious misconduct by other lawyers or judges unless protected by confidentiality.
• Partners, managers, and supervisors have duties to prevent and address violations.
• Subordinate lawyers are responsible for their own compliance, except when following a supervisor’s reasonable resolution of an arguable issue.
• Disciplinary authority extends to multiple jurisdictions.
• Sanctions include censure, suspension, and disbarment.

Key Terms and Concepts

• Professional Misconduct
• Discipline
• Duty to Report
• Supervisory Responsibility
• Subordinate Lawyer
• Disciplinary Authority