In Re Himmel

Brief Fact Summary. Respondent is an attorney who reached a settlement agreement with his client’s prior attorney for his misappropriation of his client’s funds rather than reporting him to the state bar association. Respondent is now being considered for disciplinary action for failing to inform the bar of this misconduct.

Synopsis of Rule of Law. An attorney’s duty to report the misconduct of another member of the bar.

Facts. Motorcycle accident victim Tammy Forsberg’s prior attorney, John Casey, had wrongfully withheld a portion of her settlement check. She retained Respondent, James Himmel, to recover the remaining amount. Respondent did so by reaching a negotiated agreement with Casey, which he later breached. Respondent then brought suit to enforce the agreement and eventually recovered so little that he did not receive a fee for his work. Casey was later disbarred for an unrelated matter, and a complaint was filed against Respondent for failing to disclose Casey’s misconduct in the Forsberg case.

Issue. May a lawyer be disclipined solely for failing to report the misconduct of another lawyer?

Held. Yes. Respondent’s choice to settle rather than report Casey’s misconduct was “ill-advised” and he should be held responsible for it. One-year suspension.

Discussion. This is the first case in which a lawyer was disciplined solely for failing to report the misconduct of another attorney. While this may seem unusual enough on its face, it is further complicated by the fact that the settlement was actually the best thing for his client-and was actually instigated by her request-and that reporting might have actually interfered with her ability to recover from Casey.