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Clink, Klink

On a recent trip to London, I stumbled across the original Clink Prison.  According to its website, “The Clink” — which bills itself as “the prison that gave its name to all others” — dates back to the 12th century and continued to operate as a prison until 1780 (it is now a museum).  The origins of the name are uncertain, but possibly comes from the clinking sound of the prisoners’ chains. 

Curiously, nowhere does the Clink’s website reference another famous namesake — Colonel Wilhelm Klink, prison commandant of Stalag 13.  And who is Colonel Klink without the bumbling Sergeant Hans Schultz, who famously disclaimed knowledge of any shenanigans by the Allied prisoners.

http://www.youtube.com/watch?v=34ag4nkSh7Q&feature=player_detailpage

Which brings us to the subject of this week’s Tip.  Unlike the affable Sgt. Schultz, lawyers don’t always have the option of turning a blind eye to the misconduct of others.  Model Rule 8.3(a) provides that a lawyer “who knows that another lawyer has committed a violation of the Rules . . . that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.”  Among the most cited case is Illinois’s In re Himmel, 533 NE2d 790 (Ill. 1998), in which an attorney was disciplined for failing to report that his client’s prior attorney absconded with settlement funds. 

But it’s not only conduct as egregious as theft that implicates Rule 8.3.  Lawyers also need to be mindful that what they say in court papers (or social media) about other attorneys might inadvertently trigger a reporting obligation or, at the very least, undermine legal arguments.  In Jackson v. Deen, a federal court in Georgia recently took lawyers to task for accusing each other of ethics violations:  “[B]oth sides, having now flown the ethics-code flag . . . are free to file a bar complaint. See Ga. R. Bar Rule 4–102, RPC Rule 8.3(a) (“A lawyer having knowledge that another lawyer has committed a violation of the Georgia Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, should inform the appropriate professional authority.”).  And if they do not then that says something, as ethics accusations should never be used as a litigation tactic.”

If you have reason to believe that another lawyer is engaging in conduct that might trigger a reporting obligation, don’t think you can get away with the Sgt. Shultz defense.  And certainly, don’t think you can publicly attack the trustworthiness or integrity of another lawyer.  Instead, contact an ethics profession; he or she can help you do the right thing so you can stay out of the Clink.

Twerking Bad

Sometimes, you come face-to-face with conduct so shocking and cringe-worthy that you are simply stunned into silence. Hank and Marie demonstrate the reaction I’m talking about in this clip:

What about shocking conduct of another lawyer? Sometimes, silence won’t cut it.

Not every sharp practice or thrown elbow mandates a report to the bar. But, in most jurisdictions (excluding California), lawyers have an ethical duty to report certain types of egregious lawyer misconduct (e.g., fraud, crimes) to the appropriate authorities. Illinois lawyers know this as the Himmel Rule. In other jurisdictions, this obligation is rooted in the state equivalent of Model Rule 8.3.

Ignoring misconduct that you are required to report can get you in the same trouble as Mr. Himmel. Complaining about misconduct to the wrong authority also can create risks. In some jurisdictions, just threatening to report another lawyer’s misconduct also may subject you to discipline.

Don’t be stunned into silence yourself.  If you observe such conduct in others—or, heaven forbid, if you are the subject of such a threat or claim yourself—contact experienced ethics counsel who can advise you of your duties and next steps immediately.

Faking It

You may have read about the lawyer at one big firm who, while he was at a prior big firm, submitted $120,000 worth of fake expense reports. In his defense, the lawyer says that he did not personally benefit from the expenses, but that he fabricated the reports to get around the firm’s cumbersome reimbursement process. No comment.

Whether it’s $120,0000 or $120, or whether it’s billed to a client or billed to a law firm, the submission of false expenses is unethical and unlawful. Law firms would likely have no choice but to terminate the submitter and report the matter to the appropriate disciplinary authorities.

An article about this particular lawyer’s fake expense reports is attached. And since we’re on the topic of faking things, a clip from a certain Billy Crystal restaurant movie scene seems oddly appropriate. You might just take note of a small casting change.