Does a lawyer hired to represent another lawyer have to report that lawyer's possible misconduct to the disciplinary commission?

Plain-English summary

A lawyer represented another lawyer in a legal malpractice action and learned, both from the client-lawyer and from other sources during preparation and trial, facts that might amount to a Rules violation by the client-lawyer. The trial judge or opposing counsel had apparently already reported the alleged misconduct to the Attorney Registration and Disciplinary Commission. The inquiring lawyer asked whether a duty to report arose, whether the source of the knowledge mattered, and whether the prior report by others relieved any such duty.

The opinion concluded that Rule 8.3(a) required reporting only of knowledge "not otherwise protected as a confidence" and only of conduct violating Rule 8.4(a)(3) or (a)(4). Knowledge learned in confidence from the client-lawyer and protected by the lawyer-client privilege under Rule 1.6 therefore need not, and should not, be reported, a result the opinion described as consistent with In re Himmel. The committee concluded the result should be the same even where the lawyer gained the knowledge from sources other than the client-lawyer: although a literal reading of Rule 8.3(a) might require reporting a non-privileged "secret," the committee read the rule, consistent with the ABA Model Rule 8.3 comment, not to require a lawyer to report on the lawyer's own client, reasoning that the contrary rule would discourage discovery, create an inherent conflict between the lawyer's interest and the client's, and destroy the trust implicit in the relationship.

On the third question, the opinion concluded that if a reporting duty did exist, a report made by others would not excuse it, citing Himmel's holding that a client's own prior report was no defense to the lawyer's failure to report; the committee added that a confirmatory report may corroborate the initial complaint and reduce the chance it is misinterpreted.

Currency note

This opinion was issued in 1991, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rules (Rules 1.6, 8.3, and 8.4, and noting Skolnick v. Altheimer & 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 who represents another lawyer have to report that client's misconduct?

A: The opinion concluded the reporting duty does not apply to a lawyer retained to represent the lawyer whose conduct is in question; misconduct learned in confidence from the client-lawyer is protected by Rule 1.6 and may not be reported.

Q: Does it matter whether the lawyer learned the misconduct from the client or from other sources?

A: The opinion concluded the result is the same; even where the knowledge came from sources other than the client-lawyer, the committee read Rule 8.3(a) (consistent with the ABA Model Rule 8.3 comment) not to require a lawyer to report on the lawyer's own client.

Q: If someone else already reported the misconduct, is the lawyer off the hook?

A: The opinion concluded that a prior report by others would not excuse a reporting duty if one existed, following In re Himmel, and noted a confirmatory report can corroborate the initial complaint.

Q: What kinds of misconduct does Rule 8.3(a) require a lawyer to report?

A: The opinion noted that only conduct violating Rule 8.4(a)(3) (a criminal act reflecting on honesty, trustworthiness, or fitness) or Rule 8.4(a)(4) (dishonesty, fraud, deceit, or misrepresentation) is subject to mandatory reporting.

Background and rules framework

The opinion interpreted Rule 8.3(a) (reporting another lawyer's misconduct, limited to knowledge not protected as a confidence), Rule 1.6 (confidentiality of client confidences and secrets), and Rule 8.4(a)(3)-(a)(4) (the misconduct categories that trigger mandatory reporting), reading them together with the comment to ABA Model Rule 8.3 and In re Himmel (Model Rules 1.6, 8.3, 8.4).

Citations and references

Rules of Professional Conduct:

• Model Rule 8.3 (reporting professional misconduct) / Illinois Rule 8.3
• Model Rule 1.6 (confidentiality of information) / Illinois Rule 1.6
• Model Rule 8.4 (misconduct) / Illinois Rule 8.4(a)(3)-(a)(4)
• ABA Model Rule 8.3 (Comment)

Cases:

• In re Himmel, 125 Ill.2d 531, 533 N.E.2d 790 (1988), duty to report another lawyer's unprivileged criminal act
• Skolnick v. Altheimer & Gray, 191 Ill.2d 217, 730 N.E.2d 4 (2000) (cited in the 2010 affirmation note)

See also

• ISBA Ethics Op. 91-23: Reporting a Self-Dealing Will
• ISBA Ethics Op. 92-12: Reporting an Impaired Lawyer
• ISBA Ethics Op. 91-19: Publicizing an ARDC Report

Source

• Landing page: https://www.isba.org/ethics/opinions/9008