The Preamble to the Illinois Rules of Professional Conduct declares, "The practice of law is a public trust . . . . Lawyers therefore are responsible for . . . defending the integrity of the judicial system against those who would corrupt, abuse or defraud it."1 At some point in time, every Illinois attorney reads the Preamble to the Illinois Rules of Professional Conduct. However, many do not realize what preserving this integrity entails or the severe consequences not doing so may have on their professional license. Nearly twenty years ago, in 1988, the Supreme Court of Illinois rendered a decision which highlighted the duty of Illinois attorneys to regulate certain misconduct within their own profession.2 In In re Himmel, the high court held that "an attorney’s failure to report his unprivileged knowledge of another attorney’s serious wrongdoing warranted a suspension from the practice of law."3 Ultimately, the Court suspended Illinois attorney James Himmel for a period of one year for failing to report another lawyer whom he knew had converted client funds.4 At its inception, the Himmel decision was ground-breaking5, and consequently, many commentators found its scope to be confusing.6 The case also had a dramatic effect on the number of attorney reports of misconduct, which during the year following the Himmel decision increased from 154 cases to 922 cases, an increase of almost 600%.7 Today, the obligation imposed by Himmel still puzzles many attorneys. In 2006 and 2007 alone, the Illinois Attorney Registration and Disciplinary Commission ("ARDC") received approximately 570 inquiries about the Himmel duty.8 The purpose of this article is to discuss and analyze the Himmel decision, as well as other applicable law dealing with the obligation to report attorney misconduct. In addition, the article seeks to provide practitioners with a reasonable and practical approach to handling potential Himmel violations.
II. ILLINOIS RULES OF PROFESSIONAL CONDUCT 8.3 & 8.4
In Himmel, attorney James Himmel was prosecuted under former Rule 1-103(a) of the Illinois Code of Professional Responsibility.9 Rule 1-103(a) declared, "A lawyer possessing unprivileged knowledge of a violation of Rule 1-102(a)(3) or (4) shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation."10 Accordingly, Rule 1-102(a) asserted that "A lawyer shall not . . . (3) engage in illegal conduct involving moral turpitude [or] (4) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation."11
In 1990, two years after the Himmel decision, Rules 1-102 and 1-103 were superseded by Illinois Rules of Professional Conduct 8.3 and 8.412, respectively. These new rules are still active and in effect today. Although Rules 8.3 and 8.4 contain slightly different language, they are in fact "substantively identical" to their predecessors.13 Rule 8.3(a) states, "A lawyer possessing knowledge not otherwise protected as a confidence by these Rules or by law that another lawyer has committed a violation of Rule 8.4(a)(3) or (a)(4) shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation."14 In addition, Rule 8.4(a) maintains that "A lawyer shall not . . . (3) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; [or] (4) engage in conduct involving dishonesty, fraud, deceit or misrepresentation . . . ."15
As evidenced above, there has been a long-standing duty, established in the Illinois Rules of Professional Conduct, for attorneys to report certain misconduct within their own profession. Yet, despite this obligation, an early 1980s FBI investigation, called "Operation Greylord," revealed that numerous Chicago lawyers, judges, and court clerks all were fixing the outcomes of court cases, with nobody reporting their unethical behavior.16 Overall, 15 judges and 50 lawyers were convicted in the scandal.17 In the 1988 Himmel decision, the Supreme Court of Illinois took a major step in ensuring that this dark period in Illinois law would never again repeat itself, by adding teeth to the reporting obligation imposed by Rules 8.3 and 8.4.
III. FACTS & ARGUMENTS IN HIMMEL
To fully realize the impact and scope of Himmel, it is important to understand that this case was the first time in American history that an attorney was suspended for failing to report the misconduct of another attorney.18 The actions by Himmel were not in any way egregious or detrimental to his client, but rather an example of the type of self-policing the Supreme Court of Illinois was looking to enforce.
The facts of Himmel begin in 1978 when Tammy Forsberg retained attorney John Casey to represent her in a case for injuries she sustained in a motorcycle accident.19 In 1981, Casey successfully negotiated a settlement in the case for $35,000. However, he subsequently converted the settlement funds. Between 1981 and 1983, Forsberg unsuccessfully attempted to collect her share of the settlement proceeds, finally hiring attorney James Himmel to handle the matter. Himmel and Forsberg entered into an agreement under which Forsberg was to pay Himmel one-third of any funds he recovered above the amount she was entitled to receive from the original case settlement.
Himmel discovered through investigation that Casey had misappropriated the settlement funds. In response, Himmel drafted an agreement whereby Casey would pay Forsberg $75,000, and in return, Forsberg agreed not to commence any criminal, civil, or attorney disciplinary actions against him. Ultimately, in 1985, Casey refused to pay Forsberg and a $100,000 judgment was entered against him for breach of contract. Had that judgment been satisfied, Himmel would have received $25,588 for his share. However, Forsberg later decided that she only wanted to collect the original amount owed and Himmel collected no fee for his services.20
In January 1986, a complaint was filed against Himmel by the ARDC claiming that his failure to disclose information concerning Casey’s misconduct violated Rule 1-103(a) of the Illinois Code of Professional Responsibility.21 In October 1986, the Hearing Board found that Himmel had violated Rule 1-103(a) and recommended that he be reprimanded.22 The case went before the Review Board, which issued its report in July 1987, finding that Himmel had not violated a disciplinary rule and recommending dismissal of the complaint.23 Subsequently, the Supreme Court of Illinois granted the Administrator’s petition for leave to hear the case.
At the high court, the Administrator argued that Himmel had unprivileged knowledge of the conversion of client funds and failure to disclose that information violated Rule 1-103(a).24 Furthermore, the Administrator argued that the purpose of the attorney reporting rule was in part to maintain the integrity of the legal profession and safeguard the administration of justice; a purpose that would not be served unless Himmel was publicly disciplined as to put other attorneys on notice that such violations would not be tolerated.25 In opposition, Himmel contended that the information was privileged and he was under no obligation to disclose the matter to the ARDC.26 Moreover, he contended that his failure to act on this knowledge was motivated solely by his desire to respect his client’s wishes.27 The failure to report, Himmel argued, was a "judgment call" that resulted in Forsberg recovering some of her funds from Casey and leaving her pleased with his performance.28
IV. ANALYSIS IN HIMMEL
In performing its analysis, the Supreme Court of Illinois first noted that Illinois Rule 1-103(a) directly paralleled the language of the same provision in the American Bar Association Model Code of Professional Responsibility ("ABA Code").29 Under the old ABA Code, an attorney has a duty to report the misconduct of another attorney if he or she has unprivileged knowledge that such violation included illegal conduct involving moral turpitude or conduct involving dishonesty, fraud, deceit, or misrepresentation.30 This duty to report does not include all types of misconduct, but rather only certain types of conduct deemed to be of a "serious" nature, as identified by the Code.31 The Himmel Court stated that should an attorney violate the rule on reporting misconduct, "imposition of discipline for such a breach of duty [was] mandated."32 Furthermore, in the Court’s opinion, the duty is imposed even if to do so would be against a client’s wishes because an attorney is an officer of the court, "duty-bound to uphold the rules in the Code."33 The Court stated that the motivation behind an attorney’s decision to not file a report with the ARDC is irrelevant and client approval cannot "immunize an attorney from disciplinary action."34
Next, the Court had to determine whether the information possessed by Himmel was protected by the attorney-client privilege, and thus exempt from the reporting requirement. To determine whether the particular information was protected, the Court looked to its own definition of the privilege. Previously, the Court held that "(1) [w]here legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection may be waived."35 Ultimately, in examining the facts of the case, the Court held that the communication from Forsberg to Himmel concerning Casey’s actions did not fall within the attorney-client privilege because the disclosures were made in the presence of third-parties, including her mother and fiancé.36
For that reason, the Court found Himmel’s decision to not report Casey’s illegal conduct involving moral turpitude to be in violation of Rule 1-103(a). In determining the nature and extent of punishment, the Court noted that the underlying purpose of the disciplinary process was to "maintain the integrity of the legal profession, to protect the administration of justice from reproach, and to safeguard the public."37 With these principles in mind, the Court found public discipline appropriate to carry out the purposes of attorney discipline. Such penalty came in the form of a one year suspension from the practice of law for James Himmel.38
V. FACTS, ARGUMENTS, & ANALYSIS OF SKOLNICK
It is difficult to fully understand an attorney’s duty under Rule 8.3(a) and Himmel without also discussing the Supreme Court of Illinois’s decision in Skolnick v. Altheimer & Gray.39 In Skolnick, attorney Kenneth Skolnick was charged by the Administrator of the ARDC with violating several Illinois Rules of Professional Conduct.40 Skolnick was reported to the ARDC by his former firm and one of its associates, Terry Robin Horwitz Kass.41 Accordingly, Skolnick brought suit against the firm and Kass, alleging that they falsely accused him of creating a forged document.42 After Skolnick’s complaint was filed, the court entered a protective order forbidding dissemination of all information supplied during discovery deemed to be confidential by the party or person producing it. Kass sought modification of that order, arguing that some of the discoverable documents revealed fraudulent conduct by Skolnick. She asserted such knowledge triggered her Himmel duty to report.43 On appeal, the appellate court ruled Kass’ "obligation to report attorney misconduct was absolute and that this absolute duty must be accompanied by the absolute right to report." 44
At the Supreme Court, Skolnick argued that the circumstances of his case did not trigger the reporting obligations stated in Rule 8.3(a).45 Skolnick maintained that Kass did not possess the requisite knowledge that mandated reporting because she failed to demonstrate the alleged wrongdoing with a sufficient degree of certainty, meaning "absolute certainty."
In its analysis, the Supreme Court looked to the definition of "knows" in the Illinois Rules of Professional Conduct, which was defined as "actual knowledge" that "may be inferred from circumstances."46 Moreover, the Court reviewed opinions interpreting ABA Model Rule 8.3 and found that other states’ courts held knowledge to mean more than mere suspicion, but not necessarily absolute certainty.47 In the end, the Court held that the knowledge required to trigger the Rule 8.3(a) reporting duty need only be information known that raises more than a mere suspicion of misconduct.48 The Court ruled that Kass could have reasonably inferred from the circumstances of the events revealed by the discovery documents that Skolnick had participated in the type of conduct prohibited by Rules 8.4(a)(3) and (a)(4). Thus, in possessing the requisite knowledge to trigger the reporting requirement under Rule 8.3, Kass had a duty to report the suspected attorney misconduct to the ARDC.
VI. CONCLUSION: A PRACTICAL APPROACH TO TACKLING POTENTIAL RULE 8.3 VIOLATIONS
Reporting the misconduct of another attorney under the Illinois Rules of Professional Conduct and Himmel can be an uncomfortable undertaking. The process is certain to take time out of an already busy schedule, it can lead to professional ties being severed, and even if the claim is not pursued by the ARDC, it will undoubtedly be embarrassing for the other attorney reported. Thus, before you send a letter to the ARDC reporting another lawyer’s misconduct, it is imperative for you to understand when it is in fact necessary to report.
As laid out by the Supreme Court in Himmel, all attorneys have a duty to report the misconduct of another attorney when he or she has unprivileged knowledge that the conduct violates designated provisions of the Rules of Professional Conduct.49 Specifically, Rule 8.3(a) refers to actions that reflect adversely on a lawyer’s honesty, trustworthiness or fitness as a lawyer, or that involve dishonesty, fraud, deceit or misrepresentation.50 This duty to report exists, even if in opposition to a client’s wishes, because of the high importance courts place on maintaining the integrity of the legal profession and protecting the administration of justice from reproach.51 The duty is triggered by a level of knowledge that is more than a mere suspicion, but need not amount to absolute certainty.52 In other words, an attorney may have a duty to report conduct when he or she can reasonably infer from the circumstances that behavior described in Rules 8.4(a)(3) and (a)(4) occurred.
Every attorney should establish a specific procedure for handling potential Himmel violations.53 If you are a solo practitioner, such a course of action might involve confiding with another attorney, who is familiar with the relevant law for a second opinion as to whether there is a duty to report the subject conduct.54 On the other hand, if you work in a law firm, it might be necessary to formalize an internal process for determining whether reporting is necessary.55
Furthermore, it is advisable for you to call the ARDC’s "Ethics Inquiry Program,"56 which allows attorneys and the public at large the opportunity to receive guidance regarding ethical issues in the law. In contacting this service, you will be able to speak with on-staff attorneys and paralegals who can objectively explain the law surrounding your duty to report. However, it should be noted that no legal advice may be given, and thus, you must make your own judgment as to whether there is a duty to report the conduct in question. If you would like to receive assistance from the Ethics Inquiry Program, call (312) 565-2600 or (800) 826-8625.
If you do decide it is necessary to report an attorney under Rule 8.3(a), there are a few important things you need to know in reporting. First, there seems to be no timeframe set by Rule 8.3(a) or Himmel on when you must report. However, a reasonable time from when you obtain your knowledge should probably be read into Rule 8.3(a).57 When filling out a "Request for an Investigation of an Attorney" form ("Request") or writing a letter to the ARDC indicating there has been attorney misconduct, it is important to stay objective in describing the attorney’s behavior.58 As the reporting attorney, your only duty is merely to report the misconduct, not to persuade the ARDC to take action. It is also important to note that the reported attorney will generally receive a copy of your allegations, and he or she will have the opportunity to respond.59 Besides a description of the conduct itself, a Request or letter should also provide your contact information, any applicable case names or numbers, and "any supporting documents that you have, such as letters [or] agreements . . . ."60 In reporting the misconduct of an attorney whose office is located in northern Illinois, you should hand-deliver or mail a copy of your Request or letter to the ARDC’s Chicago office.61 However, if the reported attorney’s office is located in central or southern Illinois, the information should be sent to the ARDC’s office in Springfield.62 Finally, it must be mentioned that under the Illinois Rule of Professional Conduct 1.2(e), you may not threaten to report the conduct of another lawyer in order to "obtain an advantage in a civil matter."63
The Supreme Court’s decision in Himmel marked the first time that an Illinois attorney was sanctioned for violating the reporting obligation imposed by Rule 8.3(a). Although harsh and controversial, Himmel served as a serious reminder that attorneys are officers of the court, working to ensure that justice is provided for the public at large. As the Preamble to the Illinois Rules of Conduct states, "The vigilance of the bar in preventing and, where required, reporting misconduct can be a formidable deterrent to such misconduct, and a key to maintaining public confidence in the integrity of the profession as a whole in the face of the egregious misconduct of a few."64
1 Ill. Rules of Prof’l Conduct Preamble.
2 In Re Himmel, 125 Ill.2d 531, 533 N.E.2d 790 (1988).
3 Illinois Attorney Registration and Disciplinary Commission, Highlights from the 2007 Annual Report 25 (2007), https://www.iardc.org/2007%20Annual%20Report.pdf [hereinafter ARDC Annual Report]; See also Himmel, 533 N.E.2d at 793-96.
4 Himmel, 533 N.E.2d at 793-96.
5 Jerome Mirza, Are Lawyers’ Rights Protected in Disciplinary Cases?, 77 Ill. B.J. 468 (1989) (declaring "What is probably not well known about the proceedings in In Re Himmel . . . is that Himmel was not effectively forewarned about the severity of the punishment he might receive").
6 Jerome Mirza, Himmel Goes Too Far, 77 Ill. B.J. 300 (1989) (declaring "What I would like to know is this: in the wake of In re James Himmel . . . are Illinois lawyers and judges really supposed to ‘blow the whistle’ about all the disciplinary rule violations of which they learn?").
7 ARDC Annual Report, supra note 3, at 26.
19 Himmel, 533 N.E.2d at 791.
20 Id. at 791-92.
21 Id. at 790-91.
22 Id. at 791-92 (finding he "received unprivileged information that Casey converted Forsberg’s funds, and that [he] failed to relate the information to the Commission in violation of Rule 1-103(a) of the code" and also noting he "obtained as good a result as could be expected in the case and requested no fee for recovering the $23,233.34").
23 Id. at 792 (finding "the client had contacted the Commission prior to retaining respondent and, therefore, the Commission did have knowledge of the alleged misconduct").
24 Id. at 793 (stating failure to disclose deprived the ARDC of evidence of serious misconduct that would have assisted its investigation of Casey).
25 Himmel, 533 N.E.2d at 795 (noting Casey converted multiple clients’ funds after Himmel’s duty to report had arisen).
26 Id. at 793 (arguing his sole motivation in his failure to act was to respect his client’s wishes).
27 Id. (Forsberg specifically expressed she did not wish for Himmel to take any other action against Casey beyond recovery of the money she was owed).
28 Id. at 795.
29 Id. at 793.
30 See 107 Ill.2d R. 1-102(a)(3), (a)(4), 1-103(a).
31 Himmel, 533 N.E.2d at 794 (Rule 1-102(a) included other violations that did not trigger an attorney’s duty to report).
33 Id. at 792-93 (referencing the title of Canon 1 as to reflect this obligation: "A lawyer should assist in maintaining the integrity and competence of the legal profession").
35 Id. (quoting People v. Adam, 280 N.E.2d 205 (Ill. 1972)).
36 Id. at 794. The Court stated that "unless the mother and fiancé were agents of [Himmel’s] client, the information communicated was not privileged." Id.
37 Himmel, 533 N.E.2d at 795 (quoting In re Crisel, 461 N.E.2d 994 (1984)).
38 Id. at 796.
39 191 Ill.2d 214, 730 N.E.2d 4 (2000).
40 Id. at 9 (alleging, among other things, that he "caused a forged document to be filed with the circuit court and had engaged in conduct involving dishonesty, fraud, deceit or misrepresentation; engaged in conduct prejudicial to the administration of justice; and in the course of representing a client, knowingly made a misstatement of material fact to a third party").
41 Id. at 9 (In June 1993, the firm of Altheimer & Gray and one of its associates, Terry Robin Horwitz Kass, sent separate letters to the ARDC stating the firm had inadvertently filed a forged document with the circuit court of Cook County. Neither of the letters identified Skolnick as the author of the forged document, but they did let it be known he was an individual questioned concerning its creation).
42 Id. at 8.
43 Id. at 8-9 (Rule 8.3(a) imposes an ethical duty on attorneys to report attorney misconduct possessed through knowledge not otherwise protected as a confidence).
44 Id. at 10 (internal citations omitted).
45 Skolnick, 730 N.E.2d at 14.
46 Id. at 14 (citing 134 Ill.2d 472).
47 Id. (citing the Annotated Model Rules of Professional Conduct 555 (3d ed. 1996)).
48 See id. at 15.
49 Himmel, 533 N.E.2d at 793-96.
50 Ill. Rule Prof’l Conduct 8.3(a).
51 Himmel, 533 N.E.2d at 792-93, 795.
52 Skolnick, 730 N.E.2d at 15.
53 Thomas L. Browne, Attorney at Hinshaw & Culbertson, LLP, Speech at the Chicago Bar Association, Attorney Misconduct and the Duty to Report seminar (November 14, 2008).
56 Attorney Registration & Disciplinary Commission of the Supreme Court of Illinois, Ethics Inquiry Program, https://www.iardc.org/ethics.html (last visited December 14, 2008).
57 Speech at the Chicago Bar Association, Attorney Misconduct and the Duty to Report seminar (November 14, 2008).
59 Attorney Registration & Disciplinary Commission of the Supreme Court of Illinois, Filing a Request for an Investigation of an Attorney, https://www.iardc.org/htr_filingarequest.html (last visited December 14, 2008).
63 Ill. Rule Prof’l Conduct 1.2(e).
64 Ill. Rules of Prof’l Conduct Preamble.
Seth L. Ellis is an associate at Mulherin Rehfeldt & Varchetto, P.C. in Wheaton. He graduated from the University of Illinois at Urbana-Champaign in 2005, and Northern Illinois University College of Law in 2008.
Jeffrey R. Hanes is an associate at Harry Chiles & Associates in Wheaton. He graduated from the University of Wisconsin-Madison in 2005, and Northern Illinois University College of Law in 2008.