ISBA 1991

If a lawyer threatens criminal charges over a bad check to gain leverage, must opposing counsel report it to the disciplinary agency or to prosecutors?

Short answer: The opinion concluded that even if a lawyer's letter threatening criminal charges to gain an advantage in a civil matter violates Rule 1.2(e), it is not subject to mandatory reporting under Rule 8.3(a) because it does not involve dishonesty under Rule 8.4(a)(4) and is not the kind of criminal act covered by Rule 8.4(a)(3); the lawyer also has no obligation, as a private citizen, to report a suspected crime to prosecutors.

Apply this to your situation

This page answers the general question as of 1991. Ezel answers yours: whether it's allowed on your facts, under the current Illinois Rules of Professional Conduct, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

A lawyer received a letter from another lawyer stating that the other lawyer's clients had authorized him to proceed with filing criminal charges as well as a civil suit over an NSF (non-sufficient-funds) check, where payment had been stopped because of a dispute over the value of personal property in a real estate transaction. The inquiring lawyer believed the letter might violate Rule 1.2(e) (threatening criminal charges to obtain a civil advantage) and the Illinois intimidation statute, and asked whether he had to report it under Rule 8.3(a) or report a possible crime to prosecutors.

The opinion concluded that only violations of Rule 8.4(a)(3) and (a)(4) are subject to mandatory reporting under Rule 8.3(a). Even if the other lawyer's conduct violated Rule 1.2(e), it did not appear to involve dishonesty, fraud, deceit, or misrepresentation under Rule 8.4(a)(4), and even if it violated the Criminal Code (on which the committee expressed no opinion), it did not appear to be the type of criminal act contemplated by Rule 8.4(a)(3). The committee therefore concluded that transmitting the letter was not conduct subject to mandatory reporting under Rule 8.3(a) (citing Opinion 90-8).

On the second question, the opinion concluded that even if transmitting the letter violated the Criminal Code, the committee was unaware of any obligation of private citizens, lawyers or non-lawyers, to report suspected violations of the Criminal Code to the prosecutorial authorities.

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) and 8.4(b), (c), and (g), and noting In re Himmel and 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: Is a lawyer's threat of criminal charges to gain a civil advantage reportable misconduct?

A: The opinion concluded that even if it violates Rule 1.2(e), it is not subject to mandatory reporting under Rule 8.3(a) because it does not involve dishonesty under Rule 8.4(a)(4) and is not the kind of criminal act covered by Rule 8.4(a)(3).

Q: Does a lawyer have to report a suspected crime to prosecutors?

A: The opinion concluded the committee was unaware of any obligation of private citizens, whether lawyers or non-lawyers, to report suspected violations of the Criminal Code to prosecutorial authorities.

Q: What conduct does Rule 8.3(a) actually require a lawyer to report?

A: The opinion concluded only conduct violating Rule 8.4(a)(3) (a qualifying criminal act) or Rule 8.4(a)(4) (dishonesty, fraud, deceit, or misrepresentation) is subject to mandatory reporting.

Background and rules framework

The opinion interpreted Rule 1.2(e) (the bar on threatening criminal charges to gain a civil advantage) and Rule 8.3(a) (mandatory reporting, limited to Rule 8.4(a)(3)-(4) conduct), concluding a Rule 1.2(e) violation falls outside the reportable categories (Model Rules 1.2, 8.3, 8.4).

Citations and references

Rules of Professional Conduct:

Illinois Rule 1.2(e) (threatening criminal charges to obtain a civil advantage; Model Rule 1.2)
Model Rule 8.3 (reporting professional misconduct) / Illinois Rule 8.3(a)
Model Rule 8.4 (misconduct) / Illinois Rule 8.4(a)(3)-(4)

Statutes:

Ill. Rev. Stat. ch. 38, sec. 12-6 (intimidation; raised by the inquiry)

Other opinions cited:

ISBA Opinion No. 90-8 (only Rule 8.4(a)(3)-(4) conduct is subject to mandatory reporting)

Source

Landing page: https://www.isba.org/ethics/opinions/9036

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