A lawyer learns from a doctor-client that another lawyer is too senile to practice; can or must the lawyer report it?

Plain-English summary

A doctor consulted his long-time lawyer (Attorney A) about a patient, Attorney B, a solo practitioner the doctor had examined and found irreversibly senile and not competent to practice law, an assessment a second physician shared. Conversations with Attorney B and his family had not brought about his retirement. Attorney A knew this only as a privileged communication from the doctor. Both feared harm to Attorney B, his clients, the bar, the courts, and the public if he kept practicing. The inquiry asked what steps Attorney A could take without violating his ethical obligations.

The opinion concluded that two privileges were in play: the physician-patient privilege between the doctor and Attorney B, and the attorney-client privilege between the doctor and Attorney A. It concluded the doctor did not waive his patient's physician-patient privilege by seeking legal advice (the privilege is personal to the patient), and that the doctor's disclosure to Attorney A was itself protected as a client confidence or secret that Attorney A may not use or reveal under Rule 1.6.

The opinion concluded that no mandatory reporting question under Rule 8.3 arose, because there was no indication of the kind of misconduct that must be reported and, in any event, Attorney A's knowledge was protected as a confidence (citing In re Himmel). It concluded, however, that Attorney A may advise his doctor-client to suggest to Attorney B and his family that a guardian be appointed (which would not require Attorney B's consent under the Probate Act), or that a family member communicate concerns about Attorney B's fitness to the Attorney Registration and Disciplinary Commission, which can determine whether an attorney is incapacitated and should be transferred to inactive status under Supreme Court Rule 758. It concluded that neither privilege is violated by these suggestions, and whether they are followed is left to Attorney B or his family.

Currency note

This opinion was issued in 1993, 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 (referring to Rules 1.6(a), 1.14, and 8.3, and Supreme Court Rule 776), 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 he believes is too impaired to practice?

A: The opinion concluded there was no mandatory duty to report under Rule 8.3 here, both because no reportable misconduct was indicated and because the lawyer's knowledge was protected as a client confidence.

Q: Can the lawyer reveal what the doctor told him?

A: No. The opinion concluded the doctor's disclosure was a confidence or secret protected by Rule 1.6, which the lawyer may not use or reveal without consent.

Q: What can the lawyer do instead?

A: The opinion concluded the lawyer may advise the doctor to suggest that the impaired lawyer's family seek a guardianship or report concerns about his fitness to the disciplinary commission, which can move him to inactive status under Supreme Court Rule 758.

Background and rules framework

The opinion interpreted Rule 1.6 (confidentiality, covering the doctor-client's confidence) and Rule 8.3 (mandatory reporting of misconduct), against the physician-patient privilege statute, the Probate Act's guardianship provisions, and Supreme Court Rule 758 on transferring incapacitated lawyers to inactive status (Model Rules 1.6, 8.3).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 (confidentiality of information) / Illinois Rule 1.6(a)
• Model Rule 8.3 (reporting professional misconduct) / Illinois Rule 8.3

Statutes and court rules:

• Ill. Rev. Stat. ch. 110, sec. 8-802 (physician-patient privilege); Illinois Probate Act, Article XI; Supreme Court Rule 758

Cases:

• In re Himmel, 125 Ill. 2d 531, 533 N.E.2d 790 (1988), scope of the mandatory reporting duty

See also

• ISBA Ethics Op. 00-02: Confidentiality of an Impaired Client's Medical Report
• ISBA Ethics Op. 93-20: Is a Conflict Reportable Misconduct?
• ISBA Ethics Op. 94-23: Duty to Report Conduct of a Non-Illinois Lawyer

Source

• Landing page: https://www.isba.org/ethics/opinions/9212