By Mary F. Andreoni ARDC Ethics Education Senior Counsel
No rule causes Illinois lawyers more consternation than the duty to report another lawyer’s misconduct under Rule 8.3(a) of the Illinois Rules of Professional Conduct (ILRPC). While lawyers are free to report another lawyer to the ARDC even if they have no duty to do so, and lawyers who report to the ARDC are entitled to broad, though not unlimited, civil immunity under IL S.Ct.Rule 775, reporting another lawyer is serious business. Reporting can be awkward and uncomfortable, but most lawyers recognize that the duty to report fulfills our collective responsibility to maintain the public’s confidence in the integrity of the justice system and legal profession.
The three elements triggering a required duty to report another lawyer under ILRPC 8.3(a) are: (1) that a lawyer “knows” of another lawyer‘s conduct; (2) involving a violation of ILRPC 8.4(b) (criminal acts that reflect adversely on the trustworthiness, honesty or fitness as a lawyer) or ILRPC 8.4(c) (fraudulent or deceitful conduct); and (3) where that knowledge is not otherwise protected by the attorney-client privilege or by law.
Perennially the top area of inquiry to the ARDC Ethics Inquiry Program, below are some of the Program’s responses to the most frequently asked questions about the duty to report.
1. When does a lawyer “know” that another lawyer’s conduct requires a duty to report?
ILRPC 8.3(a) provides that the duty to report arises only when a lawyer “knows” of another lawyer’s misconduct. “Knows” is defined as "actual knowledge" which "may be inferred from circumstances."[1] More than “mere suspicion,” though less than “absolute certainty” [2], whether a lawyer possesses actual knowledge is to be determined by an objective standard, i.e., what can a lawyer reasonably infer from the circumstances as to whether the conduct in question more likely than not occurred. However, a lawyer does not have a duty to investigate further if the lawyer does not possess the requisite knowledge to trigger the mandatory reporting duty.
2. Is a lawyer required to report knowledge of another lawyer’s violation of any Rule of Professional Conduct?
ILRPC 8.3(a) limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent: criminal conduct that “reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects”, under ILRPC 8.4(b) or conduct “involving dishonesty, fraud, deceit, or misrepresentation”, as provided in ILRPC 8.4(c). Not every criminal offense triggers the duty to report. Only those offenses relevant to the practice of law must be reported, i.e., offenses involving fraud, violence, breach of trust, or serious interference with the administration of justice.[3] Also, not all violations of the ILRPCs involve fraudulent or deceitful conduct. The ILRPCs do not define dishonesty, deceit or misrepresentation, however, those terms have been used interchangeably with fraud.[4] “Fraud” under the ILRCs refers to conduct having “a purpose to deceive” and not merely negligent misrepresentation or failure to apprise another of relevant information.[5] For example, a lawyer’s knowledge that another lawyer has failed to reconcile her trust account records at least quarterly, in violation of ILRPC 1.15(c), or to confirm in writing a contingency fee agreement, in violation of ILRPC 1.5(b), would not alone likely trigger a duty to report. It may reflect poorly on the other lawyer’s knowledge of the ILRPCs but not on the lawyer’s honesty or trustworthiness.
3. Is a lawyer having a duty to report required to report the misconduct immediately?
ILRPC 8.3 is silent on the issue of when a lawyer must report another lawyer’s misconduct. A lawyer should report the violation as soon as practical, bearing in mind the attorney’s duties to his/her client and the judicial system, the potential for prejudice or harm if a report is delayed, and whether reporting will potentially add a collateral issue which can adversely affect the fair or orderly conduct of the proceedings.
4. Is a lawyer who learns of another lawyer’s misconduct during the course of a representation required to get client consent before making the report? What if the client refuses to consent?
ILRPC 8.3(c) expressly provides that a lawyer is not required to report if it would involve disclosure of information protected by the attorney-client privilege or by law. Attorney-client privilege[6] is not as broad as ILRPC 1.6(a) which requires lawyers to treat as confidential “information relating to the representation”. The duty of confidentiality under ILRPC 1.6(a), unlike the evidentiary privilege, applies to not only matters communicated in confidence by the client but also to all information relating to the representation whatever its source.[7]
In any event, a lawyer is encouraged to urge the client to consent to the disclosure, provided that reporting the misconduct would not “substantially prejudice the client’s interests.”[8] If a client refuses to give consent, a lawyer would need to consider whether any of the exceptions to client consent under ILRPC 1.6(b) permits or requires disclosure or if reporting can be accomplished by the disclosure of information, that while confidential, is not otherwise protected by the attorney-client privilege or other law. Under some circumstances, the lawyer may need to withdraw from the representation. [9]
5. What is the “appropriate professional authority” to which a lawyer may report another lawyer’s misconduct?
ILRPC 8.3(a) requires lawyers to inform the “appropriate professional authority.” This means an authority “empowered” to act upon a charge of attorney misconduct, i.e., the Supreme Court or its delegated agent, the ARDC, unless some other agency is more appropriate in the circumstances such as a report to an appropriate disciplinary agency in a jurisdiction where the other lawyer is admitted to practice or in the jurisdiction where the misconduct occurred.[10]
6. Can a lawyer make an anonymous report to the ARDC?
While a lawyer might like to remain anonymous, if a lawyer concludes that he or she has a duty to report, making a report anonymously could make it difficult for a lawyer to provide proof later that they had fulfilled their duty to report. Also, an anonymous report is not helpful in an ARDC investigation and could stymie an investigation if additional information is needed.
7. Do lawyers have a duty to report their own misconduct?
Lawyers have no duty to report their own misconduct. Ironic as it seems, the only misconduct that a lawyer must report is that of “another lawyer.” The only self-reporting obligations are the duty to self-report a criminal conviction under IL Supreme Court Rule 761 and the duty to self-report attorney discipline imposed in another jurisdiction as required by ILRPC 8.3(d). It sometimes may be prudent for a lawyer to self-report their own misconduct, particularly where it is likely others will be filing a report with the ARDC about that lawyer’s conduct, but this is not the same as the self-reporting obligation under ILRPC 8.3.
8. Is the duty to report applicable if the lawyer to be reported is under suspension, on inactive or disability inactive status, is not admitted to practice law in Illinois, or is not engaged in the practice of law?
The duty under Rule 8.3(a) to report “another lawyer” is applicable even if that other lawyer is not authorized to practice law in the jurisdiction, whether because the lawyer is on inactive status, under disciplinary or administrative suspension or is admitted to practice law only in another jurisdiction. Also, ILRPC 8.3(a) does not limit a lawyer’s reporting duty to only misconduct that occurs purely while engaged in the practice of law, e.g., a lawyer employed by a company or law firm in a non-lawyer capacity.
9. Does a lawyer still have a duty to report if the other lawyer already has been reported by someone else?
Nothing in ILRPC 8.3 relieves a lawyer from reporting another lawyer’s misconduct, when required, because someone else has done so already. The duty to report is “absolute"[11] and a lawyer cannot be prevented or excused from discharging this duty by a court, a client (unless the lawyer’s knowledge is based on attorney-client privilege), by a report already made by the client or someone else or even if the information about the misconduct has become “common knowledge.”[12] Reporting lawyers may choose to submit a report jointly to the ARDC.
10. When does a lawyer making a report violate ILRPC 8.4(g), which prohibits a lawyer from presenting or threatening criminal or disciplinary charges to gain an advantage in a civil matter?
A violation of ILRPC 8.4(g) (formerly ILRPC 1.2(e) prior to 2010) involves (1) a clear threat, (2) communicated to the other lawyer, and (3) a clear connection between the threat and a purpose of gaining an advantage in a civil matter.[13] The Preamble to the ILRPCs makes clear,” [t]he Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies...[and] not designed to be a basis for civil liability...[T]he purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons.”[14] To the extent that the duty to report has not yet been triggered, a lawyer can refer another lawyer to relevant law or ILRPCs, and can point out that certain conduct could have potential criminal or disciplinary consequences but the lawyer cannot threaten prosecution or the filing of a disciplinary grievance, or agree to forgo it, to gain an advantage.
[1] ILRPC 1.0(f).
[2] Skolnick v. Altheimer & Gray, 191 Ill. 2d 214, 228, 730 N.E.2d 4, 14 (Ill. 2000).
[3] Cmt. [2] to ILRPC 8.4.
[4] In re Yamaguchi (1987), 118 Ill.2d 417, 515 N.E.2d 1235, 1238
[5] ILRPC 1.0(d) and cmt. [5].
[6] In re Himmel, 25 Ill.2d 531, 543, 533 N.E.2ed 790, 794 (Ill. 1988) (Information lawyer had of client’s former lawyer was not protected by attorney-client privilege to exempt lawyer from rule requiring reporting lawyer’s conversion of client’s settlement funds).
[7] Cmt. [3] to ILRPC 1.6.
[8] Cmt. [2] to ILRPC 8.3.
[9] ILRPC 1.16(a) and (b).
[10] Skolnick v. Altheimer & Gray, 191 Ill. 2d 214, 228-29, 730 N.Ed.2d 4, 15 (Ill. 2000).
[11] Id.
[12] In re Daley, M.R. 17023, 98SH2 (IL Nov. 27, 2000) (Hearing and Review Boards rejected lawyer’s argument that he was relived of the duty to report because the other lawyer's conduct had been disclosed in a court proceeding, was widely disseminated in the press, and was disclosed to various law enforcement agencies).
[13] ISBA Op. 20-03 (May 2020) (lawyer’s demand letter written in attempt to settle a civil claim may accurately set forth the relevant statute including the statute’s possibility of both civil and criminal liability but may not threaten criminal prosecution nor state criminal prosecution can be avoided by settling the claim), citing In re Zeas, 2014PR00069 (January 14, 2016) (Hearing Bd. Report at page 25) (complaint dismissed by Hearing Board).
[14] Cmt. [20] to Preamble, ILRPC.