The Iowa State Bar Association Says It is Wrong To Accuse A Lawyer of Unethical Conduct To Gain An Advantage

IA Ethics OP 14-02

It is quite common for one lawyer to accuse another of unethical conduct. To do so to gain an advantage, violates Rule 8.4(c) according to the Iowa State Bar Association.

The Opinion notes that a lawyer must report any violation of the Iowa Rules to the Iowa Supreme Court Attorney Disciplinary Board. Rule 32:8:3 requires that “(a) A lawyer who knows that another lawyer has committed a violation of the Iowa Rules of Professional Conduct shall inform the appropriate professional authority.” Rule 32:8:4 makes it a violation of the Rules to fail to report a violation by another attorney. (The Illinois standards are slightly different. Illinois only requires a lawyer to report misconduct involving fraud, deceit, dishonesty or a criminal act). Illinois Rule 8.3(a).

Further, it violates the rules to threaten disciplinary action against opposing counsel to gain an advantage in a civil matter. For example, a lawyer may “warn” opposing counsel that taking a certain action would be unethical to obtain an advantage in a matter. The Iowa committee described that conduct as the “antithesis of professionalism.”

The Opinion was issued by the Iowa State Bar Association Committee On Ethics and Practice Guidelines.

The Iowa opinion is consistent with Illinois law, which prohibits (Rule 8.4(g) a lawyer from “present[ing], participate in presenting, or threaten to present criminal or professional disciplinary charges to obtain an advantage in a civil matter.”

As a young lawyer I worked with a veteran lawyer, George Bullwinkel, who had a unique way of dealing with accusations that he had done something unethical. George had a wonderful sense of humor and fun. Whenever he was accused of unethical conduct in writing he would simply take the statement of opposing counsel and report himself to the ARDC. He would then ask the ARDC to open an investigation of himself and list opposing counsel as the complaining witness. Inevitably the other lawyer would then be required to write a letter to the ARDC explaining what precisely was unethical. The ARDC would then close the investigation. Most of the time the other lawyer would admit that there was no unethical conduct.

George Bullwinkel never worried that the ARDC would actually open an investigation of him. He had self-confidence and a great sense of humor. By self-reporting he never allowed any opponent to make a threat and hold the threat over his head or extract some advantage.

In sum, do not threaten other lawyers with disciplinary actions to gain an advantage in a civil matter. If you are threatened with a claim that you are unethical, it may be a good idea to self-report.

Edward X. Clinton, Jr.

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