99-8.

• Case Date: October 20, 1999
• Court: Kansas

Kansas Ethics Opinion 1999. 99-8. October 20, 1999KBA Legal Ethics Opinion No. 99-8October 20, 1999 TOPIC: Reporting of Judicial misconduct DIGEST: MRPC 8.3(b) requires lawyers to report judicial misconduct if there is a violation of what we call the "Knowledge/substantial question/honesty, trustworthiness, fitness/1.6 privilege" test. Under facts stated, unless the information was learned in a privileged situation under MRPC 1.6 or to a moral certainty the client's interests would be harmed by such reporting, the conduct must be reported. Date of Request: October 11, 1999 Reference: MRPC 8.3 The function of the Kansas Bar Association's ethics advisory service is to respond to inquiries from Kansas-licensed lawyers concerning proposed conduct. The limitations on the service do not allow us to render an opinion regarding past conduct or the conduct of someone other than the requesting attorney. The following constitutes only the opinion of the Committee on Professional Ethics-Advisory Services, and is not in any way intended to be a guarantee of a particular result or a conclusion by appropriate authorities. Further, this document constitutes the Committee's opinion based on the facts and information contained in correspondence above referenced. It is based on a review of the disciplinary rules, model rules of professional responsibility and conduct, and applicable case law. This opinion is not a grant of immunity from any form of legal or disciplinary proceeding. The opinion herein is that of a KBA committee without official government status. The Kansas Bar Association expressly disclaims any liability in connection with issuing this opinion. First draft, 3.0 hours, October 20, 1999 FACTS Requesting counsel was involved with civil litigation where the plaintiff-client was a trustee. Because of case complexities, the presiding judge appointed a retired Kansas judge as a Special Master to handle discovery for a fee to be divided by the parties. Counsel's client did not receive any billing statement. When queried, the Special Master indicated to counsel he did not intend to bill the clients because he felt he had failed in some of the matters in the case. Attorney informed client there would be no further billing statements. The litigation concluded, but was on appeal. The Special Master died. The Special Master's spouse sent a bill to the client claiming the Special Master had not been paid for services in this matter. Defendants paid one half the outstanding bill. Attorney's client, relying on the pre-death representation of the Special Master, did not. Without going through an attorney representing the estate of the Special Master, the spouse telephoned the judge about the outstanding half. The judge, knowing that the client was represented by counsel, telephoned the client directly. When client returned the call, the judge told the client that the bill needs to be paid and allegedly told the client that if not paid within a week, the judge might find it necessary to call the Court of Appeals. Client claims he was intimidated and threatened by the judge's action, and client sent a check for the remaining amount in care of the judge, but informed the judge that he felt unfairly coerced by the court into paying the claim and would have paid the claim except for the representations made by Special Master through the client's attorney. Client pointed out to the judge that while the Special Master was alive, there had been no invoice for services. The Judge returned the check to the client via the client's attorney, with a copy to the spouse, with a notation that any dispute concerning the bill should be resolved in the probate court. After the letter, the spouse continued to contact the attorney for the client arguing that the attorney should "pay the bill" or she would contact the judge again. QUESTIONS 1. Is the attorney under an obligation to report this matter to the Commission on Judicial Qualifications? 2. If the client indicates that he does not want the matter disclosed because of possible harm to the client's future interests, is the attorney obligated to report the conduct? ANALYSIS I. The obligation to report misconduct is governed by Rule 8.3 and the professionalism required of attorneys generally as officers of the Court. While reporting of misconduct is a touchy subject and an uncomfortable one within the bar, without adherence to this concept, a self-regulating bar is nearly impossible to achieve. The preamble to the Model Rules states: "Self-regulation helps maintain the legal profession's independence ... An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice. "The legal profession's relative autonomy carries with it special responsibilities of self-government. The profession has a...