In re Himmel

Brief Fact Summary.

After Himmel (Defendant) represented Forsberg in her claim against her former attorney for conversion of her personal injury settlement check, the administrator of the state disciplinary commission (Plaintiff) filed a complaint against Defendant for her failure to report the former attorney’s misconduct.

Synopsis of Rule of Law.

An attorney with unprivileged knowledge of a violation of the canons of ethics shall report the knowledge to a tribunal or authority with the power to investigate or act upon such violation.

Facts.

Casey, an attorney, converted the portion of a personal injury settlement check that belonged to his client, Forsberg.  Forsberg then retained Himmel (Defendant) to collect her money.  In return for Forsberg’s agreeing not to file any criminal, civil, or attorney discipline action against him, Casey agreed to a settlement but failed to pay the amount negotiated by Himmel (Defendant).  Defendant then brought suit for breach, which resulted in a judgment against Casey.  The administrator of the disciplinary commission (Plaintiff) then filed a disciplinary complaint against Defendant for failure to report Casey’s misconduct.  The hearing board recommended a private reprimand, and the review board recommended that the complaint be dismissed.  The Plaintiff sought review in the state supreme court.

Issue.

Shall an attorney with unprivileged knowledge of a violation of the canons of ethics report the knowledge to a tribunal or authority with the power to investigate or act upon the violation?

Held.

(Stamos, J.)  Yes.  An attorney with unprivileged knowledge of a violation of the canons of ethics shall report the knowledge to a tribunal or authority with the power to investigate or act upon the violation.  Here, the knowledge of Casey’s misconduct was not privileged since Forsberg discussed it with Himmel (Defendant) at various times while her mother and her fiancé were present.  Therefore, Defendant possessed unprivileged knowledge of Casey’s conversion of client funds, which is illegal conduct involving immorality, and failed in his duty to report such misconduct to the commission (Plaintiff).  Furthermore, agreeing not to prosecute or report Casey for conversion went against the criminal code’s prohibition against compounding a crime.  Accordingly, Himmel (Defendant) is ordered suspended from the practice of law for one year

Discussion.

This decision was widely criticized as interfering with an attorney’s duty to follow a client’s express instructions.  In spite of the mandate of DR 1-103(A) of the Model Code requiring a lawyer to report all professional misconduct, lawyers and judges generally do not report violations by other lawyers.  California and Massachusetts are the only two jurisdictions that do not have report requirements.