Must a lawyer report a disbarred former attorney's misconduct to the disciplinary commission?

Plain-English summary

A disbarred former attorney was charged with criminal violations involving the unauthorized practice of law and retained Attorneys B and C to defend him; he pled guilty to a felony and was placed on probation. An Assistant State's Attorney later wrote to B describing possible ethical violations by the disbarred person, some predating the guilty plea, at least one of which might be criminal or could be used to revoke his probation. The inquiry asked whether B had a duty to report those violations to the Attorney Registration and Disciplinary Commission, and whether B could report if there was no duty.

The committee applied former Rule 1-103(a), which requires a lawyer with unprivileged knowledge of a violation of Rule 1-102(a)(3) or (4) to report it to a tribunal or authority empowered to act. Because Rule 1-102(a) speaks of a "lawyer," and the committee read that term to mean a person duly authorized to practice law in Illinois, it concluded that the disbarred person is no longer a "lawyer" subject to the Code. B therefore had no obligation to report conduct that would have violated Rule 1-102(a) if committed by a lawyer.

The committee added that because the information about the disbarred person's conduct came to B during his representation, it might be protected by former Rule 4-101, but the committee lacked sufficient facts to decide that. It expressly declined to opine on the disciplinary commission's jurisdiction over disbarred persons or on the appropriate treatment of the information about possible unauthorized-practice activity.

Currency note

This opinion was issued in May 1989, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 1990 (and later 2010) Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rules (Rules 8.3 and 8.4(b) and (c)), citing In re Himmel and Skolnick v. Altheimer and Gray, while cautioning that the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Does a lawyer have to report a disbarred person's misconduct to the disciplinary authority?

A: The opinion concluded no; the reporting duty under former Rule 1-103(a) applies to violations by a "lawyer," and the committee read that to mean a person licensed to practice, which a disbarred person is not.

Q: Why does it matter that the person was disbarred?

A: Per the opinion, a disbarred person is no longer subject to the Code of Professional Responsibility, so conduct that would be a Rule 1-102(a) violation if committed by a lawyer triggers no reporting obligation.

Q: Could the confidentiality rule also bar reporting?

A: The opinion noted the information came to the lawyer during his representation and might be protected by former Rule 4-101, but the committee lacked sufficient facts to decide that question.

Background and rules framework

The opinion applied former Illinois Code Rules 1-102 (misconduct), 1-103 (the duty to report unprivileged knowledge of certain violations), and 4-101 (client confidences). The Board's 2010 affirmation maps the analysis to current Illinois Rules of Professional Conduct 8.3 (reporting professional misconduct) and 8.4(b) and (c) (criminal acts and dishonesty), corresponding to ABA Model Rules 8.3 and 8.4, and points to In re Himmel and Skolnick v. Altheimer and Gray.

Citations and references

Rules of Professional Conduct:

• Illinois Code Rules 1-102, 1-103, 4-101 (former Code, applied in the opinion)
• Illinois RPC 8.3, 8.4(b), 8.4(c) (2010 equivalents per the Board's affirmation)
• MR 8.3 (reporting professional misconduct), MR 8.4 (misconduct)

Cases (cited in the Board's affirmation):

• In re Himmel, 125 Ill. 2d 531, 533 N.E.2d 790 (Ill. 1988), discipline for failure to report another lawyer's misconduct
• Skolnick v. Altheimer and Gray, 191 Ill. 2d 214, 730 N.E.2d 4 (Ill. 2000), scope of the reporting duty

See also

• ISBA Ethics Op. 88-13: Incriminating Physical Evidence Offered by a Third Party
• ISBA Ethics Op. 88-08: A Collection Client's Staff Fielding Calls in the Firm's Name

Source

• Landing page: https://www.isba.org/ethics/opinions/8817