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Clink, Klink — Model Rule 8.3(a) and reporting misconduct

By Eddie Reich

On a recent trip to London, I stumbled across the original Clink Prison. According to its website, ‘The Clink’ — which bills itself as ‘the prison that gave its name to all others’ — dates back to the 12th century and continued to operate as a prison until 1780 (it is now a museum). The origins of the name are uncertain but possibly come from the clinking sound of the prisoners’ chains.

Curiously, nowhere does The Clink’s website reference another famous namesake — Colonel Wilhelm Klink, prison commandant of Stalag 13. And who is Colonel Klink without the bumbling Sergeant Hans Schultz, who famously disclaimed knowledge of any shenanigans by the Allied prisoners.

Which brings us to the subject of this week’s tip. Unlike the affable Sgt Schultz, lawyers don’t always have the option of turning a blind eye to the misconduct of others. Model Rule 8.3(a) provides that a lawyer ‘who knows that another lawyer has committed a violation of the rules… that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer shallreport such knowledge to a tribunal or other authority empowered to investigate or act upon such violation’. Among the most cited case is Illinois’s In re Himmel, 533 NE2d 790 (Ill. 1998), in which an attorney was disciplined for failing to report that his client’s prior attorney absconded with settlement funds…

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