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Attorney Discipline: Reporting Misconduct by Fellow Attorneys

12/17/2019

December 17, 2019

The ARDC's Ethics Inquiry Program takes calls from lawyers who are wrestling with questions concerning legal ethics and their professional responsibilities. The program received 4,083 calls in 2018, and a significant number of those calls, 288, wanted to know one thing: When do I have to report another lawyer's misconduct? Most Illinois lawyers know they have some duty to report another lawyer's malfeasance, but many are unsure of the reporting parameters. We'll go over those parameters, in a general sense, in this article.

The duty to report in Illinois is imposed by Rule of Professional Conduct 8.3(a) but is synonymous with the name "Himmel." Himmel is used as an adjective ("Do I have a Himmel duty?") or a verb ("I had to Himmel that guy after what he did in the last hearing."). The term comes from the Illinois Supreme Court's decision in In re Himmel, 125 Ill. 2d 531 (1988).

Here's what happened in that case: a woman named Tammy Forsberg was injured in a motorcycle accident. She hired a lawyer named John Casey to represent her in a personal injury action for a one-third contingent fee. Mr. Casey settled her matter for $35,000, but then converted the settlement funds. After Ms. Forsberg was unsuccessful in getting her money from Mr. Casey, she hired attorney James Himmel to help her.

Mr. Himmel discovered the previous lawyer's conversion of the settlement proceeds and drafted an agreement by which Mr. Casey agreed to pay Ms. Forsberg $75,000 in exchange for her promise not to initiate any civil, criminal, or attorney discipline proceedings against him.

Mr. Himmel opted not to report Mr. Casey's theft to the ARDC because Ms. Forsberg did not want him to. Mr. Casey reneged on the deal, and Mr. Himmel sued him and won a $100,000 judgment. The ARDC got wind of the situation, and Mr. Casey was disbarred for converting Ms. Forsberg's funds and for other misconduct. Himmel, 125 Ill. 2d at 535-36.

Mr. Himmel also was the subject of a disciplinary complaint, one alleging a violation of Rule 1-103(a) of the Code of Professional Responsibility. That rule stated, "A lawyer possessing unprivileged knowledge [that a lawyer has engaged in illegal conduct involving moral turpitude or conduct involving dishonesty, fraud, deceit, or misrepresentation] shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation." The Court concluded that Mr. Himmel had violated the rule, and it found his argument that he had acted at the direction of his client in not reporting Mr. Casey irrelevant. Stressing the serious nature of the misconduct, the Court suspended Mr. Himmel for one year. Himmel, 125 Ill. 2d at 538-46.

The Code of Professional Responsibility has been superseded by the Rules of Professional Conduct, but the duty to report has stayed essentially the same. "Illegal conduct involving moral turpitude" in Rule 1-103(a) has been replaced with any "criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects" in Rule 8.4(b). Additionally, while Rule 1-103(a) referred to "unprivileged knowledge" of criminal conduct or fraud, Rule 8.3(c) now explains that the reporting duty does not "require disclosure of information otherwise protected by the attorney-client privilege or by law or information gained by a lawyer or judge while participating in" certain lawyers' assistance or court-approved intermediation programs.

In 2000, the Illinois Supreme Court clarified that attorney reports of criminal conduct or fraud by a lawyer must be made to the ARDC, the entity authorized by the Court to investigate and prosecute attorney misconduct, rather than to a trial court. Skolnick v. Altheimer & Gray, 191 Ill. 2d 214, 228-29 (2000).

The Skolnick decision clarified other parts of the duty, too. First, it stressed that a
lawyer's duty to report is absolute (unless the information is protected as a confidence or by law), since it promotes the goals of maintaining the legal profession's integrity, furthering the ends of justice, and protecting the public from unscrupulous attorneys. Skolnick, 191 Ill. 2d at
226. It also explained that the knowledge aspect of the rule does not require a lawyer to be absolutely certain that another lawyer has engaged in criminal conduct or dishonesty. A lawyer need only have actual knowledge, which may be inferred from the circumstances, and which should be more than mere suspicion. Skolnick, 191 Ill. 2d at 227-28.

Many of the Himmel-based calls to the Ethics Inquiry Program express uncertainty as to the type of misconduct that needs to be reported. One can see that the obligation does not extend to any violation of the Rules of Professional Conduct; it covers only certain criminal conduct and fraud or dishonesty. Therefore, knowledge that a lawyer has, for example, neglected a case or communicated with a represented party, without more, does not trigger a Himmel duty to report that conduct.

Note that the obligation to report criminal acts is not limited to criminal convictions, so a lawyer who knows that a fellow lawyer has, for example, shoplifted a laptop is required to make a report to the ARDC, regardless of whether the fellow lawyer is ever criminally charged. Note also that a lawyer's duty to report applies even if another lawyer has the same duty, so if eight lawyers know that the fellow lawyer has shoplifted the laptop, all eight lawyers have a duty to report, even if they know that one or more of the other seven have alerted the ARDC.

As to the nature of the criminal act in question, criminal conduct that "reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects" is undoubtedly broad. It would logically include crimes involving dishonesty or presenting a palpable risk of physical or financial harm to others, while excluding more de minimis acts like minor traffic or public-disturbance offenses. There is no exhaustive list of "must-report" criminal acts, so a lawyer must use his or her best judgment in characterizing the criminal act.

Fraud has also been broadly defined by the Court as "'anything calculated to deceive, whether it be a single act or combination of circumstances, whether the suppression of truth or the suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or by silence, by word of mouth or by look or gesture.'" In re Witt, 145 Ill. 2d 380, 390 (1991), quoting People ex rel. Chicago Bar Assoc. v. Gilmore, 345 Ill. 28, 46 (1931). Therefore, acts by attorneys that can be seen as dishonest or deceitful should be reported, again within reason.

What about timing? Naturally a report should be made timely enough for an ARDC investigation to be an effective tool for protecting the public and the profession. However, if an inquiring lawyer is unsure about whether a reportable incident has occurred in a situation in which he or she is involved, the lawyer can usually allow the situation to develop in order to better decide whether a duty to report exists. See Skolnick, 191 Ill. 2d at 228. A lawyer does not have an independent obligation to investigate another attorney's conduct.