What Is My Duty to Report Attorney Misconduct

DUTY TO DISCLOSE Chaser MISCONDUCT

Rule 8.iii(a) of the Lawmaking of Professional Responsibility provides that "a lawyer possessing knowledge non otherwise protected as a confidence by these Rules or past law that another lawyer has committed a violation of Dominion 8.iv(a)(three) or (a)(iv) shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation." IL RPC Dominion 8.3(a). Dominion 8.four(a)(3) in plow forbids lawyers from committing criminal acts that reflect adversely on their trustworthiness, honesty, or fitness every bit an attorney, and Rule 8.4(a)(four) confined lawyers from engaging in conduct involving fraud, dishonesty, deceit, or misrepresentation. IL RPC Rule viii.4(a)(3) and (a)(iv). Thus, lawyers have a duty to written report unprivileged knowledge of some other lawyer'due south professional person misconduct. As In re Himmel, 125 Ill 2d 531, 533 NE2d 790, 127 Sick Dec 708 (Ill 1988), reh'thou denied, 1989, and Skolnick v Altheimer, 191 Sick second 214, 730 NE2d four, 246 Ill December 324 (Ill 2000), indicate, this duty is accented.

In re Himmel

In re Himmel applied the in a higher place rules to suspend attorney Himmel from practicing for a year later on he, at the request of his client (Forsberg) and as part of a settlement agreement, failed to report the professional person misconduct of some other attorney, Casey. Casey represented Forsberg in an before suit and had illegally converted her settlement funds to his ain use. The parties agreed, in part, that Casey would pay Forsberg a certain sum of money in render for Forsberg's pledge not to initiate any criminal, civil, or chaser disciplinary activeness against Casey. Upon Forsberg'southward instruction, Himmel did non report his unprivileged information about Casey to the ARDC. The court suspended Himmel from the practice of police force for one yr, holding that attorneys are duty-spring to uphold the Code of Professional Responsibleness, regardless of a client's request or actions. Thus, even if a client asks her chaser to circumvent the rules, or reports some other attorney's misconduct to the Commission herself, the chaser is withal spring to file his ain written report with the Commission.

The court besides held that failure to report another attorney'due south misconduct mandates the imposition of discipline, regardless of honest motives. Since converting client funds was misconduct falling under Rule ane-102(a)(3) and (four) of the Code (former version of Rule 8.4(a)(3) and (a)(4)), Himmel violated Dominion one-103(a) (former version of Rule 8.3(a)) past not reporting it, and the court was required to impose discipline. Nonetheless, the court considered mitigating factors, including the sum which the client recovered through the chaser's services, the number of years the chaser had good with no record of complaints, and the fact that he requested no fee for minimum collection of the customer'southward funds.

Skolnick v Altheimer

The court in Skolnick 5 Altheimer considered a protective social club regarding discovery that prevented two attorneys from disclosing documents showing another attorney's misconduct to the ARDC. The circuit courtroom refused to change the protective order to allow disclosure. The appellate court reversed, finding that the protective lodge prevented the petitioning attorneys from fulfilling their ethical duties and forced them to either subject themselves to discipline by the ARDC or violate the protective order and exist in contempt of court. The Illinois Supreme Courtroom upheld the appellate court's decision, emphasizing that only the "weightiest considerations of 'justice' (IL ST S. Ct. Dominion 201(c)(1)) could alibi a trial court'south refusal to modify a protective lodge so that counsel could fulfill its accented, ethical duties," and that the trial court in this example had not stated any justification for refusing to modify the protective order. Skolnick, 191 Ill second at 226, 730 NE2d at thirteen-fourteen.

The Supreme Court found that the terminology department of the Code defines "knowingly," "known," and "knows" as "bodily noesis" that "may be inferred from circumstances." IL RPC Terminology. Following the conclusions of the ABA with regard to its similar professional rule, the court held that the "noesis" requirement requires "more than a mere suspicion" but need non amount to "absolute certainty." Annotated Model Rules of Professional Conduct 555 (3rd ed. 1996). In addition, attorneys must report misconduct to the ARDC, regardless of whether such bear has been reported to a trial court. Since the petitioning attorneys could reasonably infer from the circumstances of events revealed by certain protected documents that bear of the sort described in Rules 8.four(a)(3) and (a)(4) had occurred, they had a duty to report it to the ARDC and could non be prevented from doing then by a court order.

Conclusions from Himmel and Skolnick

As summarized by Robert A. Creamer and Richard J. Jacobson, the following four "elements" are necessary to constitute a duty to written report under Dominion 8.3(a): (one) reportable professional misconduct (2) past another lawyer (3) of which the lawyer possesses knowledge (four) not otherwise protected as a confidence. Robert A. Creamer and Richard J. Jacobson, Revisiting Himmel nether the 1990 Illinois Rules of Professional person Conduct, Sick Bar J 488, 490 (October 1990). Not all violations of the Rules of Professional Conduct are reportable, just violations of Dominion eight.4(a)(iii) and (a)(4). The misconduct that attorneys are obligated to written report includes whatsoever behave involving dishonesty or cant, or any criminal behave reflecting adversely on an chaser's trustworthiness or honesty. IL RPC Rule 8.4(a)(3) and (a)(iv). According to Creamer and Jacobson, the Rules practise non define "criminal act," and no official comments to the Rules take been issued that might provide additional guidance. In add-on, the Rules do not separately ascertain the terms "dishonesty," "deceit," or "misrepresentation." Cases decided under the identical language of the 1980 Lawmaking oftentimes used these terms interchangeably with "fraud." See In re Yamaguchi, 118 Ill 2nd 417, 515 NE2d 1235, 113 Ill Dec 928 (1987). Given that the definition of fraud in the Rules expressly excludes negligent conduct, the disquisitional test for a reportable human activity under Dominion 8.4(a)(4) appears to exist intentional deception. Finally, Creamer and Jacobson betoken out that reportable misconduct need not derive directly from a lawyer'southward practice; rather, a lawyer can be disciplined for misconduct arising exterior the practice of law. See In re Crisel, 101 Ill 2d 332, 339, 461 NE2d 994, 997, 78 Ill December 160, 163 (Ill 1984).

Equally Creamer and Jacobson's commodity points out, the Himmel court and the current version of the Rules of Professional person Behave resolve the inherent disharmonize between a lawyer'south duty to study professional misconduct and the duty to maintain a client'south secrets squarely in favor of reporting. Rule 4-101 of the 1980 Lawmaking required a lawyer to preserve not only "confidences" protected past the chaser-customer privilege, but besides a client'due south "secrets," which the Dominion defined as "other information gained in the professional relationship that the client has requested exist held inviolate or the disclosure of which would exist embarrassing to or would likely be detrimental to the client." IL Rules CH 110A iv-101 (1987). The Himmel courtroom did non hash out the conflict between this Rule and the duty to written report, and a petition for rehearing that asked the court to consider this conflict was denied without comment. Currently, Rule eight.3(a) requires disclosure of client "secrets," and therefore codifies the issue in Himmel. IL RPC Rule viii.3(a). Thus, a lawyer has a duty to disclose any reportable knowledge, no matter how detrimental disclosure would be to the customer, if not protected as a confidence under the lawyer-client privilege. In this respect, Rule 8.3(a) differs significantly from ABA Model Rule 8.3, which protects both confidences and secrets. Annotated Model Rules of Professional Bear, 555 (3rd ed. 1996).

Creamer and Jacobson contend that Rule 8.3(a) could severely restrict a lawyer's ability to represent some other lawyer earlier the ARDC or in other matters involving allegations of dishonesty or misrepresentation. Literal application of the Rule would require the representing lawyer to report any information obtained in the course of the representation, non protected as a "conviction" nether the Rules, that the customer lawyer has committed a violation of Rule viii.4(a)(three) or (a)(4). In these situations, the Rule transforms a lawyer representing another lawyer into an amanuensis of the adversary, effectively depriving lawyers of the right to loyal counsel in extremely significant matters, and discouraging lawyers from seeking counsel on issues of professional person conduct. Ane possible solution Creamer and Jacobson advocate is for Illinois to adopt the approach of the ABA Model Rules, which exempts lawyers representing other lawyers as clients from the duty to report.

Other unresolved issues centering effectually the Dominion include the post-obit: (i) the being and telescopic of a duty to investigate suggestions of reportable misconduct; (2) the inherent conflict between the duty to report and Rule one.two(e), which prohibits a lawyer from presenting, participating in presenting, or threatening to present criminal charges or professional disciplinary actions to obtain an advantage in a civil matter; and (three) whether there is a "vicarious" duty to report data shared by affiliated lawyers. Without further guidance from the court or the ARDC on such issues, Creamer and Jacobson argue, Illinois lawyers volition continue to practice at their peril.

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