If an out-of-state lawyer commits fraud in Illinois, does an Illinois lawyer have to report it to the disciplinary authorities?

Plain-English summary

An Illinois-admitted lawyer ("L") served on the board of a Delaware corporation based in Illinois but was not its counsel. The corporation's New York counsel ("A") and its New York-lawyer president ("P"), neither admitted in Illinois, were believed to have mismanaged and misused funds from an escrow account in ways unauthorized by the board. L asked whether the Rules required reporting their conduct to the Illinois ARDC, to the New York equivalent, and as a crime.

Assuming the conduct of A and P involved dishonesty, fraud, deceit, or misrepresentation, the opinion applied Rule 8.4(a)(3) and (4) (criminal acts reflecting on fitness, and dishonest conduct) and Rule 8.3(a) (the duty to report another lawyer's violation of those provisions to an authority empowered to act, where the knowledge is not protected as a confidence). It noted that In re Himmel established the duty to comply with Rule 8.3(a) but did not address reporting lawyers not admitted in Illinois.

The opinion concluded that the conduct of A and P violated Rules 8.4(a)(3) and (4), and that because Rule 8.3 is directed at the act of reporting (not at who the offending lawyer is), L was required to report their behavior under Rule 8.3(a), to the Illinois ARDC, which would forward it to New York. It reasoned that although L is not admitted in New York, New York's disciplinary body is the authority empowered to act on misconduct by A and P, and suggested reporting to both states. Finally, it concluded that ordinarily an individual has no duty to report a crime, and a lawyer has no different duty than anyone else to do so.

Currency note

This opinion was issued in 1995, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in January 2010 as generally consistent with the 2010 Rules (referring to Rules 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. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Must an Illinois lawyer report misconduct by a lawyer not admitted in Illinois?

A: The opinion concluded yes. Rule 8.3(a) is directed at the act of reporting, not at the offending lawyer's admission status, so the duty applies to unprivileged knowledge of another lawyer's dishonesty or fraud regardless of where that lawyer is admitted.

Q: Where should the report go?

A: The opinion concluded the report should go to the Illinois ARDC, which would forward it to New York, and suggested reporting to both the Illinois and New York disciplinary authorities.

Q: Does the lawyer also have to report the conduct as a crime?

A: The opinion concluded that ordinarily an individual has no duty to report a crime to authorities, and a lawyer has no different duty than any other person to do so.

Background and rules framework

The opinion interpreted Rule 8.3(a) (reporting another lawyer's misconduct to an authority empowered to act, absent a protected confidence; Model Rule 8.3) and Rule 8.4(a)(3), (4) (criminal acts reflecting on fitness, and dishonest conduct; Model Rule 8.4). It relied on In re Himmel on the mandatory nature of the reporting duty.

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), mandatory duty to report misconduct

See also

• ISBA Ethics Op. 96-09: Discharged Lawyer and the Duty to Report
• ABA Formal Op. 04-433: Reporting Misconduct of a Non-Practicing Lawyer

Source

• Landing page: https://www.isba.org/ethics/opinions/9423