Ethics Opinon 1975-10
July 8, 1975
SUBJECT: ETHICAL COMPLAINT AGAINST ATTORNEY'S FIRM
May an ethical complaint against an individual attorney be made against the attorney's firm, without independent evidence of ratification or participation by his partners?
Yes. An ethical complaint may be lodged against an attorney's firm if such firm possesses such "unprivileged knowledge" as is referred to in DR 1-103. The burden of demonstrating that such "unprivileged knowledge" does not exist is placed upon the law firm so as to promote the strong public policy of protecting the public, the courts, and the legal profession.
STATUTES, CASES AND CANONS
It has generally been held that an attorney at law is not subject to disciplinary responsibility for improper conduct of his partner or partners in the same law firm, so long as he has no personal knowledge or connection with the misconduct complained of. [In re Luce, 83 C.303 (1890).] Nevertheless, all members of a firm may be disciplined if they had knowledge of the alleged misconduct, and either approved or acquiesced thereto. Thus, in In re Sadicoff, 208 C.555 (1929), an attorney was held responsible for acquiescing to the publication by his associate of an affidavit which the court had ordered to be sealed.
Canon 1 of the Code of Professional Responsibility of the American Bar Association states that "a lawyer should assist in maintaining the integrity and confidence of the legal profession." Ethical Consideration 1-4 specifically states:
"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. A lawyer should reveal voluntarily to those officials all unprivileged knowledge of conduct of lawyers which he believes clearly to be in violation of the Disciplinary Rules. A lawyer should, upon request, serve on and assist committees and boards having responsibility for the administration of the Disciplinary Rules."
Furthermore, Disciplinary Rule 1-103, relating to disclosure of information to authorities, states in subdivision (A) that " . . . a lawyer possessing privileged 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." DR 1-102 stipulates that:
A lawyer shall not:
(1) Violate a Disciplinary Rule.
(2) Circumvent a Disciplinary Rule through actions of another.
(3) Engage in illegal conduct involving moral turpitude.
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(5) Engage in conduct that is prejudicial to the administration of justice.
(6) Engage in any other conduct that adversely reflects on his fitness to practice law.
Case law has held that members of a firm may be disciplined if they had knowledge of the alleged misconduct of any attorney, and either approved or acquiesced to such misconduct. Additionally, Ethical Consideration 1-4 and Discipline Rule 1-103 of the Code of Professional Responsibility of the American Bar Association hold for the proposition that a lawyer who possesses "unprivileged knowledge" of a violation of Discipline Rule 1-102 should report such knowledge to a tribunal or authority empowered to investigate such violation. Discipline Rule 1-102 specifically mentions that a lawyer shall not violate a Disciplinary Rule or circumvent a Disciplinary Rule through actions of another. It would, therefore, appear that an ethical complaint could be filed against a firm if, in fact, the firm possessed "unprivileged knowledge" of a violation or circumvention of a Disciplinary Rule, dishonesty, fraud, deceit or misrepresentation.
It is the writer's opinion that the public policy of protecting the public, the courts, and the legal profession would best be served by liberally construing such "unprivileged knowledge" within the meaning of DR 1-103, and by placing the burden of proof on the law firm to demonstrate that such "unprivileged knowledge" did not, in fact, exist. By placing such burden on the law firm itself, the high standard of professional responsibility required by the Code of Professional Responsibility would be enhanced in the practicing legal community.
This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees.
Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.