Does a lawyer have an affirmative duty to report a judge's misconduct to the Judicial Inquiry Commission?

Plain-English summary

A court-appointed lawyer submitted a $406.00 fee application that the appointing judge held in his office for many months and then reduced to $200.00 before forwarding it to the State Comptroller. The lawyer, after retrieving the original billing from the clerk on the advice of a fee-bill review committee chair, asked the Disciplinary Commission two questions: whether he could properly remove the altered billing from the juvenile court or whether it was a "court record" he was duty-bound to return, and whether he had an affirmative duty to report the judge's conduct to the Judicial Inquiry Commission.

On the first question, the Commission stated it could not declare whether the filed fee application was an official court record; that determination is for the court itself or the Alabama statutes, not the Rules of Professional Conduct, and so falls outside the Commission's province. On the second question, the Commission quoted Rule 8.3(b): a lawyer possessing unprivileged knowledge or evidence concerning another lawyer or judge "shall reveal fully such knowledge or evidence upon proper request." Because that duty is triggered only by a proper request, presumably by an authority empowered to investigate the conduct, the lawyer was not ethically required to make an affirmative report to the Judicial Inquiry Commission, though he could do so if he chose.

The opinion observed that what the lawyer described, which he characterized as "bizarre behavior," may or may not be misconduct, and noted that ABA Model Rule 8.3(b) (not adopted by Alabama) would require reporting a judicial violation only when it raises a substantial question as to the judge's fitness for office, so even the Model Rule's affirmative-reporting requirement is limited.

Currency note

This opinion was issued in 1992, before the 2002 Ethics 2000 revisions to the ABA Model Rules of Professional Conduct and Alabama's subsequent amendments to its Rules of Professional Conduct. The opinion construed an Alabama version of Rule 8.3(b) that differed from the ABA Model Rule. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Must a lawyer affirmatively report a judge's misconduct to the Judicial Inquiry Commission?

A: Per the opinion, no. Under the Alabama Rule 8.3(b) then in force, the duty to reveal arose only "upon proper request"; the lawyer was not required to report on his own initiative, though he could.

Q: How did the Alabama rule differ from the ABA Model Rule?

A: The opinion noted ABA Model Rule 8.3(b), not adopted by Alabama, would require reporting a judicial violation only when it raises a substantial question as to the judge's fitness for office, so even that rule's affirmative-reporting duty is limited.

Q: Did the Commission decide whether the fee application was a court record?

A: No. The opinion stated that question turns on court rules or Alabama statutes, not the Rules of Professional Conduct, so the Commission could not resolve it.

Background and rules framework

The opinion interprets Rule 8.3 (Model Rule 8.3, reporting professional misconduct), specifically Ala. R. Prof. C. 8.3(b)'s "upon proper request" duty, in connection with Rule 8.4 (Model Rule 8.4, misconduct) of the Alabama Rules of Professional Conduct, and contrasts the Alabama provision with the unadopted ABA Model Rule.

Citations and references

Rules of Professional Conduct:

• Ala. R. Prof. C. 8.3(b) (reveal knowledge of lawyer/judge misconduct upon proper request)
• Model Rule 8.3(b) (affirmative reporting where a substantial question as to fitness arises; noted as not adopted by Alabama)
• Model Rule 8.4 / Ala. R. Prof. C. 8.4 (defining misconduct)

See also

• AL Ethics Op. 1992-22: a city councilman's firm serving as city prosecutor
• AL Ethics Op. 1992-18: former prosecutor defending the same defendant
• RI EAP Op. 2006-04: Failure to Promptly File Divorce Judgments Alone Does Not Trigger Rule 8.3 Mandatory Reporting

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/1992-09/
• Original PDF: https://www.alabar.org/assets/2019/02/RO-92-09.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS OPINION

RO-92-09

QUESTION:

"On or about May 16, 1991, I was appointed by Judge __ (a visiting Judge from _ County, Alabama) to represent the interest of one, ___, in connection with a harassment charge in Juvenile Court wherein the daughter of the secretary of a part-time District Attorney had been physically and verbally harassed at school.

As is our custom, when this matter was concluded, I showed Judge __, as the appointing judge, submitted my billing for $406.00 to Judge _ and awaited payment of my billing by the State. For whatever reason (and I do have some opinions as to such reason), Judge ___ held this billing in his office from August of 1991 until May of 1992 before he struck the amount that I had billed ($406.00) to the State Comptroller and thereby altered my billing to that for $200.00 (total).

I was enraged when I learned of this and immediately contacted the functioning chairman of our Peer (fee bill) Review Committee to seek his advice. His advice was that I not create an issue of this sort one week before the June 2, 1992 election, that I withdraw my billing and all evidence of it from the office of the Juvenile Court Clerk, and resubmit a proper billing to the Peer Review Committee who would then forward my (presumably approved) bill to Judge ______ for his execution and submittal to the State for payment.

Acting upon this advice, I have requested and received the original of my billing from the Clerk of the Court.

In addition to the rightness or wrongness of Judge ______'s actions, I want to know the following:

1. If I can properly remove this now altered billing from the hands of the Juvenile Court or if it is a 'court record' which I am duty-bound to return to the Clerk for appropriate processing; etc. and,

2. I also want to know if I have a positive duty to report this bizarre behavior to the Judicial Inquiry Commission for investigation of Judge ______'s actions."

ANSWER QUESTION ONE:

The Disciplinary Commission cannot declare your appointed fee application, once filed, as an official court record or not. Such a determination is up to the court itself or the Alabama statutes, if any.

ANSWER QUESTION TWO:

Rule 8.3(b) of the Rules of Professional Conduct does not require you to affirmatively report evidence of judicial misconduct except "upon proper request."

DISCUSSION:

Your first question asks the Disciplinary Commission to respond to something that has no connection with the Rules of Professional Conduct. Internal procedures and rules of the state court system and/or Alabama statutes would be controlling in determining your course of action.

With respect to what ethical duty you have to report this judge's conduct, Rule 8.3(b) states as follows:

"Rule 8.3 Reporting Professional Misconduct

(b) A lawyer possessing unprivileged knowledge or evidence concerning another lawyer or judge shall reveal fully such knowledge or evidence upon proper request."

This deals with reporting of misconduct as identified in Rule 8.4. What you have described may or may not be misconduct. You have only characterized it as "bizarre behavior." The duty is a limited one because it only requires that you reveal evidence upon proper request, presumably by an authority empowered to investigate the type of conduct involved. ABA Model Rule 8.3(b) [not adopted by Alabama] provides that a lawyer must report a judicial violation of applicable rules, only when it raises "a substantial question as to the judge's fitness for office." To that extent, even the Model Rule is limited in its requirement of affirmative reporting of judicial conduct.

Therefore, in your situation, it is not ethically required that you make a report to the Judicial Inquiry Commission. You may do so if you choose.

MLM/vf

6/8/92