“The perfect crime”

Bill padding is the perfect crime, according to William Ross. There are many examples lawyers can point to in their own firms. However, there may be an element that some are overlooking. That is the obligation to “snitch” on one’s peers if they suspect the practice is being committed by a colleague.

Obviously, such practices are difficult to detect by clients. The question is whether such practices can be detected by a colleague and then, if suspicion exists, what needs to be done about it. Must the lawyer report the suspected practice to the firm? Must the lawyer report the suspected practice to the client? Must the lawyer report the suspected practice to the State Bar disciplinary board?

Mind you, there is only a suspicion; how concrete must the proof be before the colleague must take action? If the colleague fails to report the suspected practice, what will be the professional responsibility and punishment meted out to the colleague for failure to report?

In a famous case in Illinois, interpreting IL Rule of Professional Conduct 8.1 (see also ABA Model Rule 8.1 and other jurisdictions‘ similar rules), James Himmel was suspended for one year for failing to report a rule violation of another attorney.

One moral of the story:  It’s not just the offending lawyer who is in jeopardy, it’s also every one of his/her colleagues who are in jeopardy either for failure to report … or for failure to know something they should have known .. and failure to report!

In Himmel’s case, the non-disclosure was required in order to restore the client (Himmel’s client had been prejudiced by the first attorney) to his original condition. Without the agreement not to disclose, the first attorney was unwilling to repair the client’s financial loss caused by the first attorney. While the Bar may have an interest in protecting the public, it seems to me that the higher calling in this case was the individual client. No attorney in the future will work for the benefit of the client in such a circumstance when his/her own future may become jeopardized by the failure to report. This just doesn’t seem appropriate to me.

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