Are legal practitioners obliged to blow the whistle on unethical conduct of their peers?

September 1st, 2023
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We live in an age where technology has made the accessing and sharing of information relatively instantaneous. This includes information on the unfortunate instances where legal practitioners have engaged in dishonest or irregular conduct. There may be instances where the unprofessional conduct is known to other members of the legal profession for some time before action is taken by the Legal Practice Council (the LPC), in the event of a violation of a rule falling within its statutory mandate. Losses to clients and other third parties could be mitigated if impugned conduct is reported early, as would the risk of the offending conduct bringing the profession into disrepute. The question raised in this article is whether there is an obligation on a legal practitioner who is aware of unethical conduct of another legal practitioner to report such conduct to the LPC.

The current compliance requirements applicable to legal practitioners, include an alertness to, and a reporting of, suspicious financial transactions in terms of the Financial Intelligence Centre Act 38 of 2001. These changes have come into effect many decades after the sanctity of the attorney-client confidentiality principles have been in place. If suspected criminal actions by clients must now be reported, should there not be a similar obligation to report the unethical conduct of our peers?

The attitude of being one’s ‘brother’s keeper’ or one’s ‘sister’s keeper’ to the detriment of the public and the profession is misplaced in the modern operating environment. The independence of the legal profession and self-regulation are some of the principles that are constantly emphasised, as is the protection of the image of the profession. An obligation to report the unethical conduct of other legal practitioners will enhance the observation of these principles. I refer to reports of unethical conduct that are substantiated by evidence and made in good faith. A common example is where a legal practitioner is unable or unwilling to properly account for funds held in trust, breaches obligations to pay over funds when they are due or fails to answer correspondence or to take calls from a party to whom funds are due to be paid. These are all significant red flags, yet some legal practitioners may be reluctant to tell on their peers or not be aware what their obligations are in this regard.

The risks

The risk of unsubstantiated, retaliatory reporting exists as is the ever-present danger of reports made in bad faith. Warning that circumspection is required in making allegations of misconduct against other lawyers, Professor Gino Dal Pont notes that ‘[the] more serious the allegation, the more circumspect its maker should be’ and ‘[because] allegations of misconduct against a fellow legal practitioner are serious – if proven, they can potentially threaten his or her livelihood and, at the least, his or her reputation – there are good reasons for prospective lawyer-reporters to exercise the said circumspection. It stands to reason that allegations made without proper cause and unsubstantiated by the evidence can turn the disciplinary tables the other way. On more than one occasion in recent times, lawyers shown to have made unjustified allegations of misconduct against other lawyers have themselves been subjected to professional discipline’ (Professor Gino Dal Pont ‘Pointing the finger’ (2011) November Brief 18).

Writing on the Australian experience, Professor Dal Pont opines that:

‘[it] has been observed that “it is essential to the maintenance of professional standards and the confidence of the public in the (largely) self-regulated legal profession, that where professional standards are not met, and the matter cannot be resolved, the issue be referred to the appropriate authority”, and that “[p]ractitioners have a professional obligation to do so”. There is limited recognition of this obligation in the legal profession legislation, which requires lawyers to report other lawyers’ dishonesty or irregularity in accounting for trust money, and to self-report, inter alia, their conviction for serious offences or tax offences and their insolvency. Fulfilling these obligations presents a means, beyond client complaint and judicial referral, whereby regulatory authorities are apprised of matters going to lawyers’ professional conduct. The South Australian and Victorian professional rules contain an ostensibly more encompassing obligation in this regard, but it remains unclear whether it extends beyond reporting of a lawyer’s own misconduct.

Be that as it may, it is hardly unprofessional to report another lawyer’s misconduct to the appropriate body. Leaving aside the difficult ethical issues arising out of any prescriptive general obligation to report others’ misconduct – in particular, how any such duty is to be enforced and the consequences of its breach – lawyers are, after all, well positioned to identify and report misconduct, which can, in turn, perform a valuable quality assurance role for the profession’ (footnotes omitted).

The corollary of a duty to report unprofessional behaviour is the risk of sanction for those legal practitioners who do not comply with their obligations to report. Unsubstantiated report and those made in bad faith will have consequences for the purported whistleblowers concerned.

The risks of a rapid slide into mudslinging can be gleaned from the allegations made in some of the claims (and counterclaims) in defamation cases between legal practitioners. Complaints and counter-complaints between the parties may have been lodged with the LPC. In those cases, there is often mud-slinging between the parties that does not enhance the principles of self-regulation or the promotion of the high ethical standards of conduct demanded of members of the profession. There may be another motive at play rather than observance of an obligation to alert the LPC of supposedly offending conduct. This may be one of the reasons that professional indemnity insurance companies either exclude defamation claims or only offer cover for such claims as an extension to their policies. Defamation claims are excluded from the Legal Practitioners Indemnity Insurance Fund NPC’s Master Policy (see clause 16(o)).

The Legal Practice Act, Rules and the Code

The Rules made under the authority of ss 95(1), 95(3) and 109(2) (the rules) of the Legal Practice Act 28 of 2014 (LPA) stipulate that:

‘Report of dishonest or irregular conduct

54.36 Unless prevented by law from doing so every legal practitioner is required to report to the Council [the LPC] any dishonest or irregular conduct on the part of a trust account [legal] practitioner in relation to the handling of or accounting for trust money on the part of that trust account practitioner’ (my italics).

‘Trust account practitioner’ is not defined in the LPA or the Rules, but ‘trust account practice’ is defined in r 1.35 as meaning –

‘a practice conducted by –

1.35.1 one or more attorneys who are; or

1.35.2 an advocate referred to in section 34(2)(b) … who is in terms of the Act, required to hold a Fidelity Fund certificate.’

There is a similar definition in s 1 of the LPA and para 1.28 of the Code of Conduct for all Legal Practitioners, Candidate Legal Practitioners and Juristic Entities (the Code). It follows that a trust account practitioner will practice in a ‘trust account practice.’

Paragraph 5 of the Code provides that:

‘5. Legal practitioners, candidate legal practitioners … are encouraged to report unprofessional conduct by other legal practitioners, candidate legal practitioners or juristic entities to the Council in the manner prescribed in the rules prescribing the disciplinary procedure’ (my italics).

While r 54.36 imposes a requirement on legal practitioners to report offending conduct in respect of the handling of, or accounting for trust money, on the part of their peers, para 5 of the Code only uses less coercive language in encouraging the reporting of unprofessional conduct. It is trite that the misconduct referred to in r 54.36 will also be a form of professional misconduct falling within para 5 of the Code. Consistent use of the same term (whether adjective or verb) in the Rules and the Code would, with respect, have better articulated the intention of the drafters and conveyed the compulsory nature of the reporting obligation, if that was their intention.

Regard may be had to the obligations to report in foreign jurisdictions as we seek to crystallise the obligations for South African legal practitioners and define them. How the information supplied to the LPC is actioned will also affect the rate at which reports are provided by members of the legal profession, and the confidence that the whistleblowers will have in the process.

The Model Rules of Professional Conduct adopted by the American Bar Association, for example, create such an obligation.

‘Rule 8.3 Reporting Professional Misconduct

Maintaining the integrity of the profession

  1. a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority’ (my italics).

The Federation of Law Societies of Canada’s Model Code of Professional Conduct lists a wider range of circumstances where the duty to report exists, covering integrity, client protection and professional competence. It stipulates that:

‘Duty to report

7.1-3 Unless to do so would be unlawful or would involve a breach of solicitor-client privilege, a lawyer must report to the Society:

  1. a) the misappropriation or misapplication of trust monies;
  2. b) the abandonment of a law practice;
  3. c) participation in criminal activity related to a lawyer’s practice;
  4. d) conduct that raises a substantial question as to another lawyer’s honesty, trustworthiness, or competency as a lawyer;
  5. e) conduct that raises a substantial question about the lawyer’s capacity to provide professional services; and
  6. f) any situation in which a lawyer’s clients are likely to be materially prejudiced’ (my italics).
Conclusion

It is hoped that the LPC will clarify what the obligations of legal practitioners are in respect of the reporting of unethical conduct by other legal practitioners. Legal practitioners, together with the LPC and the courts, have an essential role to play in maintaining the boni mores of the profession. Pursuing that role with vigour will go a long way in enhancing the public perception of the profession and dispelling the myth that the legal profession is a closed circle that vigorously guards its territory and is slow to act against those who violate their ethical duties.

The members of the profession have an important role to play in ensuring compliance by their peers with the principles of independence, self-regulation, meeting the high standards of professional conduct and the enhancement of the image of the legal profession are to be maintained. I am, however, not espousing a view that legal practitioners become ubiquitous whistleblowers seeking out every misdemeanour to report to the LPC. A carefully considered professional decision will have to be made in each case on the evidence available to the potential whistleblower. The whistleblower jurisprudence developed in respect of the Protected Disclosures Act 26 of 2000 may provide some guidance.

Related reading:
  • Jerome Doraisamy ‘Obligation to report on fellow practitioners would be “draconian”’ (www.lawyersweekly.com.au, accessed 28-7-2023).
  • Ronald D Rotunda ‘The lawyer’s duty to report another lawyer’s unethical violations in the wake of Himmel’ (1988) University of Illinois Law Review 977.
  • Hinshaw ‘California’s new “Snitch” rule means attorneys must report other attorneys’ misconduct to the State Bar or Tribunal’ (www.hinshawlaw.com, accessed 28-7-2023).
  • Megan Zavieh ‘Attorney misconduct – time to tattle?’ (www.attorneyatwork.com, accessed 28-7-2023).

Thomas Harban BA LLB (Wits) is the General Manager of the Legal Practitioners Indemnity Insurance Fund NPC in Centurion.

This article was first published in De Rebus in 2023 (Sept) DR 8.

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