Must a lawyer report another lawyer who drafted a will leaving the estate to himself, if the lawyer learned it from a client confidence?

Plain-English summary

Attorney A's client discovered a will, drawn by Attorney B in 1987, that left a specific bequest of jewelry to Attorney B's daughters, left the residuary estate (then about $300,000) to Attorney B, and named Attorney B as executor. Attorney A's client, the aunt's primary heir at law, believed the will presumptively voidable and did not want a report made to the Attorney Registration and Disciplinary Commission (ARDC). Attorney A asked whether he must report Attorney B.

The opinion analyzed the question under In re Himmel and Rule 8.3(a). It explained that an attorney must report knowledge of misconduct only when the knowledge is not obtained through a client confidence (defined as information protected by the lawyer-client privilege), as distinct from a secret (information gained in the professional relationship that the client asks be held inviolate or whose revelation would be detrimental), which is not exempt from reporting. The opinion concluded that if Attorney A learned of Attorney B's conduct through a privileged confidence, no reporting requirement existed regardless of the conduct's nature; if learned otherwise, the reporting analysis had to continue.

The opinion concluded that Rule 8.3(a) mandates reporting only of violations of Rule 8.4(a)(3) (a criminal act reflecting adversely on honesty, trustworthiness, or fitness) or 8.4(a)(4) (conduct involving dishonesty, fraud, deceit, or misrepresentation), and that these terms require intentional deception. Drafting the will was not a criminal act under 8.4(a)(3). As to 8.4(a)(4), the opinion concluded that the bare fact of drafting such a will, without more about the aunt's intent, her relationship with Attorney B, and the advice given, was insufficient to establish intentional deception, and did not give Attorney A knowledge that a reportable violation had occurred. Either ground meant Attorney A was not required to report. The opinion added, by way of comment, that under Himmel a reporting obligation would not be excused merely because reporting would harm the client or because the client asked that no report be made, and that under Rule 1.8(c) it is improper for a lawyer to prepare an instrument giving the lawyer or family a substantial gift from a non-relative.

Currency note

This opinion was issued in 1992, 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 (pointing to Rules 1.6, 1.8(c), 8.3(a), and 8.4(b) and (c)), while noting 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: Must a lawyer report another lawyer who drafted a will leaving himself the estate?

A: The opinion concluded that on these facts the lawyer was not required to report, both because a privileged confidence is exempt from reporting and because the drafting alone did not establish knowledge of a reportable dishonesty or fraud violation.

Q: Does learning of the misconduct from a client confidence remove the duty to report?

A: Yes. The opinion concluded that information protected by the lawyer-client privilege is exempt from the mandatory reporting requirements of Himmel and Rule 8.3(a); a mere secret is not exempt.

Q: Can a client's wish to keep it quiet excuse reporting?

A: The opinion concluded that, where reporting is required under Himmel, the obligation is not excused because reporting harms the client or because the client requested that no report be made.

Q: Is drafting a will that benefits the drafter itself improper?

A: The opinion noted that under Rule 1.8(c) it is improper for a lawyer to prepare an instrument giving the lawyer or the lawyer's family a substantial gift from a non-relative.

Background and rules framework

The opinion interpreted Rule 8.3(a) (mandatory reporting of misconduct), limited to violations of Rule 8.4(a)(3) and (a)(4), and turned on the Rule 1.6 distinction between a privileged confidence (exempt from reporting) and a secret (not exempt), applying In re Himmel. It also noted Rule 1.8(c) on lawyer-drafted gifts (Model Rules 8.3, 8.4, 1.6, 1.8).

Citations and references

Rules of Professional Conduct:

• Model Rule 8.3 (reporting professional misconduct) / Illinois Rule 8.3(a)
• Model Rule 8.4 / Illinois Rule 8.4(a)(3) and (a)(4) (misconduct triggering reporting)
• Model Rule 1.6 (confidentiality; confidence vs. secret) / Illinois Rule 1.6
• Model Rule 1.8 (lawyer-drafted gifts) / Illinois Rule 1.8(c)

Cases:

• In re Himmel, 125 Ill. 2d 531, 533 N.E.2d 790 (1988), mandatory reporting of unprivileged knowledge of misconduct

Other opinions cited:

• ISBA Opinions Nos. 90-8, 90-28 (scope of mandatory reporting)

See also

• ISBA Ethics Op. 93-03: Reporting Loans; Disputed Funds
• ISBA Ethics Op. 93-20: Reporting Another's Conflict
• ISBA Ethics Op. 18-04: Testamentary Gift to the Lawyer

Source

• Landing page: https://www.isba.org/ethics/opinions/9123