Reputation and the Rules: An Argument for a Balancing Approach under Rule 8.3 of the Model Rules of Professional Conduct

I would like to thank Professor Greg Smith for his aid in crafting this Comment. Many thanks and much love as well to my incomparable family and friends for their unwavering encouragement and support throughout my writing process, and always.

I. Introduction

When you were a child, you tattled on someone: an older sibling, your rowdy cousin, your best friend, whomever. You tattled on someone, and it did not go over well. It strained your relationships. The other kids talked; they called you a tattletale. Maybe you were ostracized for a while. No one wanted to let you in on their plans until they knew for sure where your loyalties lay. You were a liability.

The kids reacted in ways that were understandable enough, but adults often responded absolutely inscrutably. At times, offenders met with swift justice when the authority figure to whom you had reported intervened. Perhaps you were even thanked for helping to enforce the rules. Other times though, you were met with a rebuke. "You shouldn't tattle on your friends," your teacher might say, or, when your sister was playing with her toys instead of practicing her penmanship, your mother might respond, annoyed, "I don't have time for that right now."

Was there really any way to know when you were supposed to tattle? Wasn't the enforcement of justice completely contingent on the mood of the authority figure to whom you reported? Maybe these uncertainties were what led you, eventually, to eschew tattling altogether. Or maybe you renounced the practice because the people on whom you most frequently had a chance to tattle were your friends, and at some point, your loyalty to them and your fear of their disapprobation began to greatly outweigh any interest you had in the enforcement of the rules. This much is certain: a long time before you sat for the bar, you internalized the lesson that tattling can get you into trouble.

This lesson, perhaps, is the reason why the American Bar Association has found it necessary to create an affirmative duty to report another lawyer's misconduct in at least some circumstances. Under Model Rule 8.3,1 an attorney is guilty of an ethical violation if he fails to report another attorney's professional misconduct, when that misconduct raises a "substantial question" as to the other attorney's fitness to practice law.2 But old habits die hard. It will come as no surprise that lawyers prefer not to report the misconduct of their peers.3 This hesitancy may be expressed in terms of "minding one's own business." It may be defended as "deference to a fellow member of the professional community." In its most self-interested (and probably most accurate) formulation, ...

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