IS IT A LAWYER'S DUTY TO INITIATE DISBARMENT?
PROCEEDINGS WHEN SUPPORTED BY THE FACTS? What follows is an excerpt from my book, Disbarment, which deals with this weighty subject. As applied in this context, the word "duty" is, in effect, an instruction to a lawyer to proceed without discretion. Whew! This was dynamite; David sucked in a deep breath. Although hanging on every word, he coaxed himself to go slowly, soak in each meaning to make sure to climb the mountain only once! Canon 1 listed six ethical considerations, which he read with his finger pointed to each word. Then, big as life, as if the words were dancing on stage, Ethical Consideration 1-4 pirouetted in a twirl and landed like a thump. "My God," he exclaimed. "A lawyer shall reveal voluntarily to those officials all unprivileged knowledge of the conduct of lawyers which he believes clearly to be in violation of the disciplinary rules."
David slumped to the floor. His shoulders sagged with the weight of his responsibility. The honor system in law school jogged his memory. There was Professor Crandon, tall, bi-speckled, bald-headed, graying, his Criminal Law professor, giving him his first law examination. No attendance was taken. Nothing. The professor left. Nobody was watching you, and yet, everyone was watching you. Each student had the duty to report cheaters. Without exception, so imbued was the system that no one dared look up during an examination to avoid the slightest suspicion. Disciplinary Rule (DR) 1-102 entitled "Disclosure of Information to Authorities" set forth what he had to do without choice. Needles pricked, his face drained.
(a) A lawyer possessing unprivileged knowledge of a violation of DR 1-102 shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation. (b) A lawyer possessing unprivileged knowledge or evidence concerning another lawyer or a judge shall reveal fully such knowledge or evidence upon proper request of a tribunal or other authority empowered to investigate or act upon the conduct of lawyers or judges. DR 1-102 went on to read: MISCONDUCT. (A) A lawyer shall not: 1. Violate a Disciplinary Rule. 2. Circumvent a Disciplinary Rule through actions of another. 3. Engage in illegal... Clumsily, he shoved himself up from the floor, blatantly tossing the pamphlet in the direction of the bookshelf. It hit the side, falling to the floor; he didn't bother, nor consider, nor want, nor have the energy to pick it up. Funny. All those times he wanted to write a letter to the editor criticizing a public official and didn't; the times when he wanted to bitch to the waitress to take back an overcooked meal and didn't. Why? Because he didn't want to get involved. He would keep his mouth shut and his pen silenced. Now more tha.n:ever he didn't want to "make waves." Feeling trapped, he began flaying wildly in his mind for ways to keep this disaster with Mason hushed up. Bewildering! A few months ago everything was going uneventfully well. Now, he was immersed up to his "eyeballs" in Mason's unprincipled actions and feeling uncomfortably warm because of it. Rain. He longed for drenching rain. Prepared by Jerry Sonenblick, lawyer, author of the fictional legal thriller, Disbarment depicting a nefarious lawyer's betrayal to his clients, and another lawyer's maximum exercise of moral courage to overcome his misdeeds.
-JS
