Must a lawyer serving as a mediator report another lawyer's dishonesty learned during the mediation, despite mediation confidentiality statutes?

Plain-English summary

The opinion addresses a lawyer who, while serving as a mediator under the Uniform Mediation Act (710 ILCS 35) or the Not-For-Profit Dispute Resolution Center Act (710 ILCS 20), learns that a lawyer representing a party in the mediation has committed an act that violates Illinois Rule 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation).

On the first question, the opinion concludes the lawyer-mediator has an obligation to report. Rule 8.3(a) requires a lawyer who knows that another lawyer has committed a violation of Rule 8.4(b) or 8.4(c) to inform the appropriate professional authority, and the opinion reads "knows" as the actual knowledge defined in Rule 1.0. It stresses that Rule 8.3(a) is not limited to situations where the reporting lawyer is representing a client, contrasting rules such as 3.6, 4.1, and 4.2 that are expressly tied to representing a client. Citing the Illinois Supreme Court's statement that the duty to report is "absolute" (In re Himmel; Skolnick v. Altheimer & Gray), the opinion concludes the duty applies even though the lawyer was acting as a mediator.

On the second question, the opinion concludes the mediation-confidentiality statutes do not override the duty. Section 6(a)(6) of the Uniform Mediation Act removes the privilege for communications offered to prove a claim of professional misconduct, and Section 6(c) only bars compelling a mediator to testify, not the mediator's voluntary disclosure to disciplinary authorities. Because a mediator has no client, the information is not protected by the attorney-client privilege or by Rule 1.6, so Rule 8.3(c)'s exception for information protected by privilege or law does not apply. The opinion reaches a parallel conclusion under the Not-For-Profit Dispute Resolution Center Act.

In practice

Under the Illinois Rules, the opinion holds that a lawyer-mediator who acquires actual knowledge that a party's lawyer violated Rule 8.4(c) must report it to the appropriate authority under Rule 8.3(a), and may not treat the mediation-confidentiality statutes as a shield against that duty. The opinion grounds the result in the absence of any client relationship in the mediation, which removes the Rule 8.3(c) protections that would otherwise excuse disclosure.

Common questions

Q: Does a lawyer's duty to report misconduct apply when the lawyer is acting as a mediator?

A: Yes. The opinion concludes Rule 8.3(a) is not limited to lawyers who are representing a client, so a lawyer-mediator who knows of a reportable Rule 8.4(c) violation must report it.

Q: Do mediation confidentiality statutes excuse the report?

A: No. The opinion concludes the Uniform Mediation Act and the Not-For-Profit Dispute Resolution Center Act do not override the duty, in part because the Act itself withdraws the privilege for communications offered to prove professional misconduct.

Q: Why doesn't Rule 8.3(c) protect the mediator from reporting?

A: The opinion concludes that because a mediator has no client, the information is not protected by the attorney-client privilege or by Rule 1.6, so the Rule 8.3(c) exception for privileged or legally protected information does not apply.

Background and rules framework

The opinion interprets Illinois Rule 8.3 (reporting professional misconduct) and Rule 8.4(c) (dishonesty, fraud, deceit, or misrepresentation), together with Rule 8.3(c)'s exception for information protected by the attorney-client privilege or by law, and contrasts rules expressly limited to client representation (3.6, 4.1, 4.2). It applies the Illinois mediation-confidentiality statutes, the Uniform Mediation Act (710 ILCS 35) and the Not-For-Profit Dispute Resolution Center Act (710 ILCS 20).

Citations and references

Rules of Professional Conduct:

• MR 8.3 (reporting professional misconduct) / IL Rule 8.3(a), (c)
• MR 8.4(c) (dishonesty, fraud, deceit, or misrepresentation) / IL Rule 8.4(c)
• MR 1.6 (confidentiality) / IL Rule 1.6

Statutes:

• Uniform Mediation Act, 710 ILCS 35
• Not-For-Profit Dispute Resolution Center Act, 710 ILCS 20

Cases:

• In re Himmel, 125 Ill. 2d 531, 533 N.E.2d 790 (1988), the absolute duty to report misconduct
• Skolnick v. Altheimer & Gray, 191 Ill. 2d 214, 730 N.E.2d 4 (2000)

See also

• ABA Formal Op. 03-431: Reporting an Impaired Lawyer Outside the Firm
• NY State Bar Op. 480: Duty to Report a Former Client's Rule Violation
• NY State Bar Op. 523: Duty to Report Perjury in a Prior Proceeding

Source

• Landing page: https://www.isba.org/ethics/opinions/1101