In this article, Greenbaum thoughtfully examines the regime under which judges report (and fail to report) lawyer misconduct to the bar. In the latter half of the 1980s, the ABA put increasing emphasis on the need for judicial reporting of attorney misconduct, culminating in a mandatory reporting rule adopted in 1990. Although expectations of much more vigorous judicial reporting were widespread, as Greenbaum describes, that has not happened, and the ABA’s 2007 revision of the Code of Judicial Conduct left this area largely untouched.

Judicial reporting rules largely track attorney reporting rules, and the article approves of this parallelism (though Greenbaum has previously offered substantial proposals for reforms to attorney reporting rules incorporated by reference here). Nonetheless, the article contends that there are strong grounds for believing that judges can be and ought to be more vigorous and effective reporters of attorney misconduct than ordinary lawyers. These reasons include judges’ heightened responsibility for the integrity of the judicial system, judges’ general role in imposing sanctions (e.g., Rule 11), the absence for judges of attorney-client privilege and other client duties, and the lesser repercussions judges would face for reporting.

The article concludes with several prescriptions for pushing judicial reporting forward, including greater encouragement of reporting by the enforcement authorities through education programs and other signaling, greater publicity of reporting (through publication) designed to change culture by public example, and by some clarifications to the reporting standard of itself, which would help make the duty to report more frequently unambiguous.

Art has written extensively about reporting of attorney misconduct, with important articles analyzing enhanced attorney and judicial reporting requirements that could lead to a more effective system of attorney discipline. This article thoroughly considers the potential of a variety of “automatic” reporting requirements, each of which Art ultimately concludes would make a useful addition to the reporting regime: (i) banks reporting overdrafts in attorney trust accounts; (ii) insurers reporting on malpractice insurance claims; (iii) judges reporting adjudications of misconduct (e.g., willful failure to disclose material information) in criminal and civil cases; (iv) self-reporting by attorneys in certain circumstances.

The potential costs, benefits, and indirect consequences of the many permutations of each of these possibilities are daunting, even overwhelming, to contemplate. Yet the article heroically identifies, catalogues, and weighs them with an incisiveness that makes the material both accessible and persuasive. For each category, Art considers not only the theoretical pros and cons and their relevant academic literature, but also the experience in practice of these approaches, in law when they are common (e.g., bank reporting) and in other fields when they are not (e.g., mandatory malpractice reporting to disciplinary authorities in medicine). In addition to ultimately endorsing some use of all four forms of mandatory reporting described above, two themes run through the article’s evidence-based conclusions: a preference for precise rules governing what must be reported, notwithstanding some inevitable over and under inclusiveness, and a skepticism of claims that mandatory reporting will create unduly damaging strategic behavior as an indirect consequence.

In this article, part of a significant invited symposium on Professional Responsibility, Art takes an in-depth look at the impact of Model Rule 5.5, which was adopted by the ABA House of Delegates in 2002, which was designed to change the rules governing multi-jurisdictional practice. Multi-jurisdictional practice had largely outgrown the formal rules in many jurisdictions, so that the issues of legality, certainty, enforcement and efficiency that arise when de facto and de jure rules diverge were presented. The drafters of the Model Rule hoped to alleviate them by drafting a rule that would track contemporary practice and achieve widespread adoption. The article offers careful descriptive analysis covering both the extent of adoption and the issues that have arisen in the adoption, providing a nuanced perspective that can be inadequately summarized as “the drafters’ hopes have been partially realized.” Art’s analysis makes clear the protectionist and other competitive pressures influencing outcomes, as well as the variety of approaches to reciprocity and the “legitimate” state concerns about client protection that have proven significant. The article also notes some underappreciated consequences of the Model Rule, including the decline of “local counsel”—now either unnecessary or insufficient—and the potential impact of increased enforcement in the Rule’s remaining sphere.

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