The Automatic Reporting of Lawyer Misconduct to Disciplinary Authorities: Filling the Reporting Gap

ARTHUR F. GREENBAUM*

An effective lawyer disciplinarysystem is essential to the protection of clients, third parties, and the profession as a whole. The present system, however- which relies primarily on complaints filed by lawyers, judges, and clients- often fails to capture misconduct, which, either standing alone or as part of a larger pattern of misconduct, warrants disciplinary attention by sanction or through remedial training.

A robust automatic reporting regime, triggered by the occurrence of identifiable acts, would help fill this reporting gap. The system I envision places reporting duties on third parties providing services to lawyers, the courts, and individual lawyers already convicted of a crime or sanctionedfor unethical conduct. Some of these duties, like overdraft notification by banks or self-reporting by lawyers, are already well established, although not universally so. Others, like imposing a reporting duty on malpractice insurers or courts, have not been adopted widely. None have been systematically studied. Each of these devices has its own costs, benefits, and unintended consequences. Each can be implemented in a variety of ways. This Article catalogs and critiques those costs, benefits, and consequences, and provides recommendationsfor the implementation of these devices.

TABLE OF CONTENTS

I. INTRODUCTION ...... 439 A. The Needfor GreaterReporting of Lawyer Misconduct to D isciplinaryAuthorities ...... 439 1. Gaps in the Current Reporting System for Reporting Lawyer Misconduct ...... 439 2. Why the Gaps in the CurrentReporting System Need to B e Closed ...... 442 B. An Additional Paradigmfor Identifying Lawyer Misconduct .. 443 II. REPORTING BY ENTITIES OUTSIDE THE LEGAL PROFESSION- TRUST ACCOUNT OVERDRAFT NOTIFICATION ...... 445

James W. Shocknessy Professor of Law, The Ohio State University Moritz College of Law. I wish to thank T. Conrad Bower, Danielle Gadomski, Andrew Gammill, Zachery Keller, and Jillian Wolosiansky for their research assistance. Thanks also to Bruce Campbell, Jonathan Coughlan, Robert Fellmeth, Larry Garvin, Jack Sahl, and those in attendance at the Moritz College of Law Faculty Workshop, at which I presented an earlier draft of this Article, for their thoughtful comments. I also appreciate'the assistance I received from numerous state officials in California, Florida, and Ohio, Who helped explain the operation of their automatic reporting regimes. Finally, I wish to thank the Moritz College of Law for its financial support through its summer research grant program. OHIO STATE LA WJOURNAL [Vol. 73:3

A. Usefulness of the Information to DisciplinaryAuthorities ..... 446 B. Burden of Compliance on ReportingEntity and Others...... 448 C. Potential Compliance Problems ...... 451 D . Indirect Consequences ...... 451 E. Recom m endation ...... 453 III. REPORTING BY ENTITIES OUTSIDE THE LEGAL PROFESSION- MALPRACTICE NOTIFICATION ...... 453 A. Usefulness of the Information to DisciplinaryAuthorities ..... 454 B. Burden of Compliance on Reporting Entity and Others ...... 460 C. Potential Compliance Problems ...... 462 D . Indirect Consequences ...... 464 E. Recom m endation ...... 467 IV. REPORTING BY THOSE INVOLVED IN THE JUDICIAL PROCESS ...... 467 A. Usefulness of the Information to DisciplinaryAuthorities ..... 471 B. Burden of Compliance on Reporting Entity and Others...... 473 C. PotentialCompliance Problems ...... 474 D . Indirect Consequences ...... 478 E. Modifications to the CourtReporting Requirements...... 481 F. Recom m endation...... 484 V. LAWYER SELF-REPORTING OF PARTICULAR EVENTS ...... 486 A. Usefulness of the Information to DisciplinaryAuthorities ..... 491 B. Burden of Compliance on Reporting Entity and Others ...... 494 C. PotentialCompliance Problems ...... 495 D . Indirect Consequences ...... 499 E. Extending the Self-Reporting Regime to Other Areas ...... 500 F. R ecom m endation...... 501 VI. POTENTIAL SYSTEMIC PROBLEMS FLOWING FROM AN AUTOMATIC REPORTING REGIME ...... 502 A. Information and the Overzealous DisciplinaryCounsel ...... 502 B. Automatic Reporting and System Overload...... 503 C. Automatic Reporting and Resource Constraints ...... 504 V II. C ON CLUSION ...... 506 20121 A UTOMA TIC REPORTING OFLAWYER MISCONDUCT

I. INTRODUCTION

A. The Needfor Greater Reporting of Lawyer Misconduct to DisciplinaryAuthorities

1. Gaps in the CurrentReporting System for Reporting Lawyer Misconduct

It is commonly accepted that a substantial amount of lawyer misconduct goes unreported to disciplinary authorities. That reporting gap has serious implications. It undercuts the integrity of the legal profession.' It compromises the lawyer disciplinary process, which can function only if potential misconduct comes to the attention of disciplinary authorities. 2 It undermines the profession's right of self-regulation, which carries with it the responsibility to exercise sufficient oversight of lawyer conduct through an effective disciplinary system. 3 There are several reasons behind this underreporting phenomenon. The first is a general reluctance to report by those who, by virtue of their training and interactions, are most likely to witness and recognize lawyer misconduct-lawyers and judges.4 While lawyers and judges have an ethical 5 duty to report lawyer misconduct, that duty often is ignored. Most

1See, e.g., MODEL CODE OF PROF'L RESPONSIBILITY EC 1-4 (1980) ("The integrity of the profession can be maintained only if conduct of lawyers in violation of the Disciplinary Rules is brought to the attention of the proper officials."). 2 Cf STANDARDS FOR IMPOSING LAWYER SANCTIONS preface (1992), available at http://www.americanbar.org/content/dam/aba/migrated/cpr/regulation/standards-sanctions.a uthcheckdam.pdf ("Only if all lawyer misconduct is in fact reported to the appropriate disciplinary agency can the legal profession have confidence that consistent sanctions are imposed for similar misconduct."). 3 MODEL RULES OF PROF'L CONDUCT pmbl., 10-12 (2009). Although the term "self- regulation" is often used to describe the lawyer regulatory system, in reality it is a system of judicial regulation, in which lawyers and the organized bar often play a significant role. See Judith L. Maute, Bar Associations, Self-Regulation and Consumer Protection: Whither Thou Goest?, 2008 J. PROF. LAW. 53, 58. Thus the judiciary, with close ties to the legal community, rather than the legislative or executive branches, has primary, and in some states exclusive, authority over attorney regulation. See RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 1 cmt. c (2000) (noting that in most states the courts have the inherent power to regulate lawyers and that in many states that power is exclusive). 41 have explored this issue at length in two previous articles. One addresses reporting requirements for lawyers. See Arthur F. Greenbaum, The Attorney's Duty to Report Professional Misconduct: A Roadmap for Reform, 16 GEO. J. LEGAL ETHICS 259 (2003) [hereinafter Greenbaum, Attorney's Duty to Report]. The other addresses reporting requirements for judges. See Arthur F. Greenbaum, Judicial Reporting of Lawyer Misconduct, 77 UMKC L. REv. 537 (2009) [hereinafter Greenbaum, JudicialReporting]. 5As to underreporting by lawyers, see CHARLES W. WOLFRAM, MODERN LEGAL ETHICS § 12.10.1, at 683 (1986) ("Probably no other professional requirement is as widely ignored by lawyers subject to it."). See also Lonnie T. Brown, Jr., Ending Illegitimate Advocacy: ReinvigoratingRule 11 Through Enhancement of the Ethical Duty to Report, 62 OHIO STATE LA WJOURNAL [Vol. 73:3 commentators attribute this to several factors. The first is a societal attitude 6 toward reporting the misconduct of others-we live in an anti-snitch culture. This is reinforced by the potential negative ramifications of reporting, including soured professional relations and possible retaliatory actions. 7 While some reporting is mandatory in most systems for both judges and lawyers, the standar