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DUTY TO DISCLOSE ATTORNEY MISCONDUCT

Rule 8.3(a) of the Code of Professional Responsibility provides that "a lawyer possessing knowledge not otherwise protected as a confidence by these Rules or by law that another lawyer has committed a violation of Rule 8.4(a)(3) or (a)(4) shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation." IL RPC Rule 8.3(a). Rule 8.4(a)(3) in turn forbids lawyers from committing criminal acts that reflect adversely on their trustworthiness, honesty, or fitness as an attorney, and Rule 8.4(a)(4) bars lawyers from engaging in conduct involving fraud, dishonesty, deceit, or misrepresentation. IL RPC Rule 8.4(a)(3) and (a)(4). Thus, lawyers have a duty to report unprivileged knowledge of another lawyer's professional misconduct. As In re Himmel, 125 Ill 2d 531, 533 NE2d 790, 127 Ill Dec 708 (Ill 1988), reh'g denied, 1989, and Skolnick v Altheimer, 191 Ill 2d 214, 730 NE2d 4, 246 Ill Dec 324 (Ill 2000), indicate, this duty is absolute.

In re Himmel

In re Himmel applied the above rules to suspend attorney Himmel from practicing for a year after he, at the request of his client (Forsberg) and as part of a settlement agreement, failed to report the professional misconduct of another attorney, Casey. Casey represented Forsberg in an earlier suit and had illegally converted her settlement funds to his own use. The parties agreed, in part, that Casey would pay Forsberg a certain sum of money in return for Forsberg's pledge not to initiate any criminal, civil, or attorney disciplinary action against Casey. Upon Forsberg's instruction, Himmel did not report his unprivileged information about Casey to the ARDC. The court suspended Himmel from the practice of law for one year, holding that attorneys are duty-bound to uphold the Code of Professional Responsibility, regardless of a client's request or actions. Thus, even if a client asks her attorney to circumvent the rules, or reports another attorney's misconduct to the Commission herself, the attorney is still bound to file his own report with the Commission.

The court also held that failure to report another attorney's misconduct mandates the imposition of discipline, regardless of honest motives. Since converting client funds was misconduct falling under Rule 1-102(a)(3) and (4) of the Code (former version of Rule 8.4(a)(3) and (a)(4)), Himmel violated Rule 1-103(a) (former version of Rule 8.3(a)) by 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 attorney's services, the number of years the attorney had practiced with no record of complaints, and the fact that he requested no fee for minimum collection of the client's funds.

Skolnick v Altheimer

The court in Skolnick v Altheimer considered a protective order regarding discovery that prevented two attorneys from disclosing documents showing another attorney's misconduct to the ARDC. The circuit court refused to modify the protective order to allow disclosure. The appellate court reversed, finding that the protective order 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 be in contempt of court. The Illinois Supreme Court upheld the appellate court's decision, emphasizing that only the "weightiest considerations of 'justice' (IL ST S. Ct. Rule 201(c)(1)) could excuse a trial court's refusal to modify a protective order so that counsel could fulfill its absolute, ethical duties," and that the trial court in this case had not stated any justification for refusing to modify the protective order. Skolnick, 191 Ill 2d at 226, 730 NE2d at 13-14.

The Supreme Court found that the terminology section of the Code defines "knowingly," "known," and "knows" as "actual knowledge" 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 "knowledge" requirement requires "more than a mere suspicion" but need not 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 conduct 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 conduct of the sort described in Rules 8.4(a)(3) and (a)(4) had occurred, they had a duty to report it to the ARDC and could not be prevented from doing so 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 establish a duty to report under Rule 8.3(a): (1) reportable professional misconduct (2) by another lawyer (3) of which the lawyer possesses knowledge (4) not otherwise protected as a confidence. Robert A. Creamer and Richard J. Jacobson, Revisiting Himmel under the 1990 Illinois Rules of Professional Conduct, Ill Bar J 488, 490 (Oct 1990). Not all violations of the Rules of Professional Conduct are reportable, only violations of Rule 8.4(a)(3) and (a)(4). The misconduct that attorneys are obligated to report includes any conduct involving dishonesty or deceit, or any criminal conduct reflecting adversely on an attorney's trustworthiness or honesty. IL RPC Rule 8.4(a)(3) and (a)(4). According to Creamer and Jacobson, the Rules do not define "criminal act," and no official comments to the Rules have been issued that might provide additional guidance. In addition, the Rules do not separately define the terms "dishonesty," "deceit," or "misrepresentation." Cases decided under the identical language of the 1980 Code often used these terms interchangeably with "fraud." See In re Yamaguchi, 118 Ill 2d 417, 515 NE2d 1235, 113 Ill Dec 928 (1987). Given that the definition of fraud in the Rules expressly excludes negligent conduct, the critical test for a reportable act under Rule 8.4(a)(4) appears to be intentional deception. Finally, Creamer and Jacobson point out that reportable misconduct need not derive directly from a lawyer's practice; rather, a lawyer can be disciplined for misconduct arising outside the practice of law. See In re Crisel, 101 Ill 2d 332, 339, 461 NE2d 994, 997, 78 Ill Dec 160, 163 (Ill 1984).

As Creamer and Jacobson's article points out, the Himmel court and the current version of the Rules of Professional Conduct resolve the inherent conflict between a lawyer's duty to report professional misconduct and the duty to maintain a client's secrets squarely in favor of reporting. Rule 4-101 of the 1980 Code required a lawyer to preserve not only "confidences" protected by the attorney-client privilege, but also a client's "secrets," which the Rule defined as "other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing to or would likely be detrimental to the client." IL Rules CH 110A 4-101 (1987). The Himmel court did not discuss the conflict between this Rule and the duty to report, and a petition for rehearing that asked the court to consider this conflict was denied without comment. Currently, Rule 8.3(a) requires disclosure of client "secrets," and therefore codifies the result in Himmel. IL RPC Rule 8.3(a). Thus, a lawyer has a duty to disclose any reportable knowledge, no matter how detrimental disclosure would be to the client, 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 Conduct, 555 (3rd ed. 1996).

Creamer and Jacobson argue that Rule 8.3(a) could severely restrict a lawyer's ability to represent another lawyer before 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, not protected as a "confidence" under the Rules, that the client lawyer has committed a violation of Rule 8.4(a)(3) or (a)(4). In these situations, the Rule transforms a lawyer representing another lawyer into an agent 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 conduct. One 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 around the Rule include the following: (1) the existence and scope of a duty to investigate suggestions of reportable misconduct; (2) the inherent conflict between the duty to report and Rule 1.2(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 (3) whether there is a "vicarious" duty to report information shared by affiliated lawyers. Without further guidance from the court or the ARDC on such issues, Creamer and Jacobson argue, Illinois lawyers will continue to practice at their peril.

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