Must a lawyer report an opposing lawyer's planned discovery abuse to the ARDC?

Plain-English summary

A lawyer reviewing a client's litigation file found a letter from the opposing defense lawyer to the defendant's insurer suggesting a discovery strategy designed mainly to be burdensome enough to discourage the plaintiff from proceeding, while being obstructive in answering the plaintiff's own discovery. The letter had reached the plaintiff's litigation lawyer in error, who returned it as a confidence received in error after giving a copy to the client. The question was whether the defense lawyer's conduct had to be reported to the ARDC under Rule 8.3(a).

The Committee concluded that Rule 8.3(a) requires reporting only when a lawyer knows of a violation of Rule 8.4(a)(3) (a criminal act reflecting adversely on honesty, trustworthiness, or fitness) or Rule 8.4(a)(4) (conduct involving dishonesty, fraud, deceit, or misrepresentation), citing In re Himmel. On these facts, no violation had yet occurred: until the discovery requests were actually served, there was only a suggestion of an improper course of conduct, and the mere suggestion did not rise to an ethical violation.

The Committee identified the trial court as the first forum for addressing the conduct. Supreme Court Rule 219(d) authorizes sanctions for willful discovery abuse, and the Committee concluded that the better course was to file a Rule 219 motion to have the court determine whether the discovery was improper. If the court found an impropriety, the lawyer could report the conduct to the ARDC but was not required to do so unless the abuse rose to the level of fraud, deceit, misrepresentation, or dishonesty. The Committee added that an abusive discovery plan could also run afoul of Rule 3.1 (meritorious claims), Rule 3.2 (expediting litigation), and Rule 3.3.

Currency note

This opinion was issued in 1999, before Illinois adopted its current Rules of Professional Conduct, effective January 1, 2010. The Illinois Rules cited here use the pre-2010 numbering. The ISBA notes the opinion was affirmed by its Board of Governors in January 2010 as generally consistent with the 2010 Rules, though the specific standards referenced may differ. Treat this page as historical context, not current guidance.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: When does Rule 8.3 require reporting another lawyer's discovery conduct to the ARDC?

A: The opinion concluded that reporting is mandatory only when the lawyer has actual knowledge of a violation of Rule 8.4(a)(3) (a qualifying criminal act) or 8.4(a)(4) (dishonesty, fraud, deceit, or misrepresentation).

Q: Was merely planning a burdensome discovery strategy already a violation?

A: No. The Committee concluded that until the discovery requests were served there was only a suggestion of an improper course of conduct, which did not rise to an ethical violation.

Q: What was the recommended way to address abusive discovery?

A: The opinion concluded the better course was to file a motion under Supreme Court Rule 219 asking the trial court to determine whether the discovery was improper and to impose sanctions; ARDC reporting remained optional unless the abuse involved dishonesty.

Background and rules framework

The opinion applied Illinois Rule 8.3(a) (reporting professional misconduct) keyed to violations of Rule 8.4(a)(3) and (a)(4) (misconduct), corresponding to ABA Model Rules 8.3 and 8.4. It also referenced Rule 3.1 (meritorious claims and contentions), Rule 3.2 (expediting litigation), and Rule 3.3 (conduct before a tribunal), and Illinois Supreme Court Rule 219(d), which authorizes sanctions for discovery abuse.

Citations and references

Rules of Professional Conduct:

• Illinois Rules 3.1, 3.2, 3.3, 8.3, 8.4(a)(3), 8.4(a)(4) (Model Rules 3.1, 3.2, 3.3, 8.3, 8.4)

Court rules:

• Illinois Supreme Court Rule 219(d), sanctions for discovery abuse

Cases:

• In re Himmel, 125 Ill.2d 531, 533 N.E.2d 790 (1988), duty to report another lawyer's misconduct

Other opinions cited:

• ISBA Advisory Opinion No. 90-28

See also

• ISBA Ethics Op. 16-02: Withholding Controlling Authority From a Tribunal
• Ohio BPC Ethics Op. 1990-001: Duty to Report Lawyer Misconduct

Source

• Landing page: https://www.isba.org/ethics/opinions/9805