Must a public defender report to the disciplinary board every ineffective-assistance-of-counsel claim a post-conviction client makes about prior counsel?

Plain-English summary

A public defender preparing post-conviction petitions was frequently told by clients of allegations of ineffective assistance by their prior counsel, allegations that might be unsubstantiated or uncorroborated. The inquiry asked whether the public defender had a duty to report every such allegation to the Attorney Registration and Disciplinary Commission, or whether he could exercise some discretion.

The committee applied former Rule 1-103(a), which requires a lawyer with unprivileged knowledge of a violation of Rule 1-102(a)(3) (illegal conduct involving moral turpitude) or (4) (dishonesty, fraud, deceit, or misrepresentation) to report it. It found the facts insufficient to decide whether the information about alleged misconduct is privileged under Rule 4-101 and In re Himmel. If the allegations are not privileged, the public defender may properly exercise some discretion to determine whether the alleged ineffective assistance rises to the level of misconduct described in Rule 1-102(a)(3) and (4); if it does and the knowledge is unprivileged, the rule requires reporting.

The committee concluded that not every allegation of ineffective assistance of counsel must be reported to the disciplinary commission.

Currency note

This opinion was issued in November 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 Rule (Rule 8.3), 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 Treat this page as historical context, not current guidance.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 public defender have to report every ineffective-assistance claim a client makes?

A: The opinion concluded no; not every allegation must be reported, and the lawyer may exercise discretion over which alleged conduct rises to the reportable level.

Q: When does the reporting duty attach?

A: Per the opinion, the duty under former Rule 1-103(a) attaches only when the lawyer has unprivileged knowledge that the conduct involves moral turpitude or dishonesty under Rule 1-102(a)(3) or (4).

Q: What role does privilege play?

A: The opinion found the facts insufficient to decide whether the client communications are privileged under Rule 4-101 and In re Himmel; if the knowledge is privileged, the reporting duty does not attach.

Background and rules framework

The opinion applied former Illinois Code Rule 1-103(a) (the duty to report unprivileged knowledge of certain misconduct), Rule 1-102(a)(3) and (4) (moral turpitude; dishonesty), and Rule 4-101 (confidences), in light of In re Himmel. The Board's 2010 affirmation maps the analysis to current Illinois Rule of Professional Conduct 8.3, corresponding to ABA Model Rule 8.3; the privilege limit corresponds to Model Rule 1.6.

Citations and references

Rules of Professional Conduct:

• Illinois Code Rules 1-103(a), 1-102(a)(3),(4), 4-101 (former Code, applied in the opinion)
• Illinois RPC 8.3 (2010 equivalent per the Board's affirmation)
• MR 8.3 (reporting professional misconduct), MR 1.6 (confidentiality)

Cases:

• In re Himmel, 125 Ill. 2d 531, 533 N.E.2d 790 (Ill. 1988), scope of the duty to report and the privilege limit

See also

• ISBA Ethics Op. 88-17: Duty to Report a Disbarred Lawyer's Conduct
• ISBA Ethics Op. 89-04: A Prosecutor's Direct Talks With a Represented Defendant

Source

• Landing page: https://www.isba.org/ethics/opinions/8907