Wednesday, April 26, 2017

Another Judge’s Duty: Reporting Lawyer Criminal Convictions to the Indiana Disciplinary Commission

August 16, 2013 by G. Michael Witte

A judge who has entered a criminal guilty finding against a lawyer has an affirmative duty to report the conviction to the Disciplinary Commission. This duty is found in Admis. Disc. R. 23 §11.1(a)(1). The rule requires the judge to transmit a certified copy of the finding of guilt to the Disciplinary Commission within ten (10) days of the finding being made. This rule applies to all criminal convictions and not just felonies. It has become a myth handed down through generations of the bar that this rule only applies to felony convictions. That myth is inaccurate.

Lawyers are not a societal threat to commit crimes, but they are also not immune from doing so. The most common criminal pitfalls for lawyers are substance offenses such as operating a vehicle while intoxicated (OWI), public intoxication, and illegal drug possession.

Confusion on this topic arises when one looks at Prof. Cond. R. 8.3(a) and 8.4(b). Rule 8.3(a) governs the duty of all attorneys to report lawyer misconduct. Rule 8.4(b) defines what criminal conduct is considered ethical misconduct. Both rules set a standard that an ethical violation must raise a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects. Sometimes judges go through this mental exercise of weighing the nexus of the crime to this standard and decide there is not a duty to report. The judge might not be aware of the separate procedural duty as an administrator of court records to report the conviction to disciplinary authorities.

The Rules of Professional Conduct are the substantive rules that guide our personal conduct as lawyers. Admis. Disc. R. 23 is the procedural rule for the discipline process. Procedurally, a judge is required to carry out the conviction notification to the Commission. The judge does not have to perform the nexus analysis before fulfilling this duty. The nexus question initially is a charging decision exercised by the Commission and later becomes an element of proof for them.

The wayward lawyer also has a duty to self-report the conviction to the Commission [Admis. Disc. R. 23 §11.1(a)(2)]. This duty does not extinguish the trial court’s duty to report the conviction.

Many times a court’s failure to report a conviction is exposed through the felony OWI offense. After the felony OWI is reported to the Commission it is discovered that the underlying first offense was never reported by either the offender or the judge. For the offender, this can result in a violation of Admis. Disc. R. 23 §11.1(a)(2) which aggravates the situation.

A practice tip: When sentencing a lawyer for a crime, make self-reporting of the conviction to the Commission a condition of probation. Also, tell the lawyer that in ten days you will be notifying the Commission pursuant to your duty to report, but it would be best if the Commission first heard from the lawyer rather than the court.

Indiana Rules for Admission and Discipline

Indiana Rules of Professional Conduct