Does a lawyer have to report another lawyer's misconduct based on hearsay, and must the lawyer investigate first?

Plain-English summary

A lawyer's client reported that the opposing litigant had threatened to expose activities to the IRS unless the civil case settled favorably. The lawyer relayed the events to a state prosecutor and insinuated the prosecutor had to report them to the ARDC, then passed the same information to an uninvolved lawyer who also told the prosecutor. The prosecutor asked whether he was obligated to report the opposing lawyer's alleged misconduct, whether a prior report by the first lawyer excused him, and whether he had a duty to investigate the hearsay before reporting.

The opinion concluded the prosecutor had only hearsay knowledge, and because Rule 8.3(a) requires "actual knowledge" of a Rule 8.4(a)(3) or (a)(4) violation, he was under no duty to report. The committee noted Illinois Rule 8.3(a) is narrower than the ABA Model Rule (which reaches any violation raising a substantial question about a lawyer's honesty or fitness), and that the alleged threat did not appear to involve "dishonesty, fraud, deceit or misrepresentation" under Rule 8.4(a)(4); whether it was a criminal act under Rule 8.4(a)(3) depended on whether the opposing lawyer merely confirmed or instead reinforced the client's threat. The committee added the prosecutor could, at his option, report the events if he made clear his knowledge was hearsay and carried no prosecutorial imprimatur.

On the remaining questions, the opinion concluded that if a report were mandated, a prior report by the lawyer with firsthand knowledge would not excuse it (following In re Himmel), and that a lawyer's status alone neither obligates nor authorizes investigating another's reported misconduct, because Rule 8.3 does not cast lawyers as investigators; that role rests with the appropriate public agencies. The committee lacked facts to say whether the prosecutor's official position imposed an independent duty to investigate.

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 8.3(a), 8.4(b) and (c), 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 have to report misconduct learned only as hearsay?

A: No. The opinion concluded Rule 8.3(a) requires actual knowledge of a Rule 8.4(a)(3) or (a)(4) violation, so hearsay knowledge creates no duty to report.

Q: Must a lawyer investigate a reported misconduct before deciding whether to report?

A: The opinion concluded a lawyer's status alone neither obligates nor authorizes investigation; Rule 8.3 does not make lawyers investigators, and that role rests with public agencies.

Q: Is a report excused because someone else already reported the same conduct?

A: The opinion concluded that if a report were mandated, a prior report by the person with firsthand knowledge would not excuse it, following In re Himmel; a confirmatory report can corroborate the original complaint.

Background and rules framework

The opinion interpreted Rule 8.3(a) (mandatory reporting, requiring actual knowledge and limited to Rule 8.4(a)(3)-(4) conduct) and contrasted it with the broader ABA Model Rule 8.3, applying In re Himmel on the no-excuse-for-prior-report point (Model Rules 8.3, 8.4).

Citations and references

Rules of Professional Conduct:

• Model Rule 8.3 (reporting professional misconduct) / Illinois Rule 8.3(a)
• Model Rule 8.4 (misconduct) / Illinois Rule 8.4(a)(3)-(4)

Cases:

• In re Himmel, 125 Ill.2d 531, 533 N.E.2d 790 (1988), a prior report does not excuse a lawyer's own reporting duty

See also

• ISBA Ethics Op. 90-08: Reporting a Client Lawyer
• ISBA Ethics Op. 90-36: Reporting Threats of Prosecution
• ISBA Ethics Op. 91-29: Threatening Criminal Charges

Source

• Landing page: https://www.isba.org/ethics/opinions/9028