By Thomas P. McGarry and Thomas P. Sukowicz
Hinshaw & Culbertson
Lawyers generally understand that they have a duty to report the misconduct of other lawyers to the Attorney Registration and Disciplinary Commission (ARDC). Rule 8.3(a) of the Rules of Professional Conduct requires a lawyer possessing knowledge not otherwise protected as a confidence by ARDC rules or by law that another lawyer has committed a violation of Rule 8.4(a)(3) or (a)(4) to report that knowledge to a tribunal or otherauthority empowered to investigate or act upon such violation.
Rule 8.3(a) states that a lawyer must only report knowledge of misconduct "not otherwise protected as a confidence." In In re Himmel, 125 Ill.2d 531 (1988), the Illinois Supreme Court considered whether the attorney's knowledge of the other attorney's misconduct came from information that would be protected as a confidence; specifically, whether he received the information from his client as an attorney-client communication protected by the attorney-client privilege.
The attorney contended that the information was privileged information received from his client so he was under no obligation to disclose the matter to the commission. The court found that, although the information came from his client, it was not conveyed in confidence, as evidenced by the fact that the client's mother and fiance were present at various times when the client discussed the matter with the attorney.
Because the information was voluntarily disclosed by a client to an attorney in the presence of third parties who were not agents of the client or attorney, the information was not privileged. In addition, the court noted that matters intended by a client for disclosure by the client's attorney to third parties, who are not agents of either the client or the attorney, are not privileged. Because the attorney, with the client's consent, discussed the conversion of her funds with the insurance company involved, the insurance company's lawyer and with the attorney who converted the funds, the information was not privileged.
One issue that confronts lawyers who receive information in their role as in-house counsel is whether the information is considered confidential and protected by the attorney-client privilege. The American Bar Association Committee on Ethics and Professional Responsibility, Formal Opinion 453 (2008), discussed whether disclosure by a firm attorney of his misconduct to in-house counsel in the same firm would create a duty on the part of in-house counsel to report that misconduct. It noted that ABA Model Rule 1.6(b) permits disclosure of client confidences for purposes of seeking ethical guidance and that in-house counsel are impliedly authorized to disclose such information within the firm, although clients may instruct in-house counsel to confine disclosure to specific firm members.
Illinois Rule 1.6 similarly provides that a lawyer may disclose confidential information "to secure legal advice about the lawyer's compliance with these rules." Comment 5 of Illinois Rule 1.6 explains that lawyers in a firm may disclose to each other information about a client of the firm, unless the client has instructed that particular information be confined to specified lawyers. Confidential client information may be disclosed to another lawyer in the firm generally, but also if the purpose of the disclosure is to obtain advice about compliance with the Rules of Professional Conduct.
Although confidential information may be shared, the question is whether the lawyer receiving the information, if it includes information about misconduct, is required to report it to the ARDC.
The opinion considered that a firm attorney's consultation with the firm's in-house counsel could create a conflict of interest between the firm and the client, depending on whether the lawyer simply seeks prophylactic advice or actually engaged in misconduct. If the lawyer engaged in misconduct, a conflict would likely exist.
Do Rule 8.3 and the Himmel line of cases mandate that in-house counsel must report to the ARDC the professional misconduct of firm attorneys who seeks advice from in-house counsel? The ABA opinion appropriately concludes that Rule 1.6 protects in-house counsel from mandatory disclosure of the attorney's misconduct to the ARDC. Both the information related to the representation of the client as well as in-house counsel's representation of the firm are protected as confidential by Rule 1.6. Since Rule 8.3 only requires the disclosure of information not protected as confidential, no disclosure is required.
Opinion 453 noted if a firm attorney engaged in professional misconduct of the kind that must be reported and disclosed that conduct to an attorney in the firm other than in-house counsel, the ABA does not believe that the information is protected by the privilege. It seems to rest this conclusion on the assumption that only in-house counsel would be consulted for advice regarding compliance with the Rules of Professional Conduct. That may be the case in some firms, but not all. It is also possible that one attorney in a firm may consult another firm attorney who is not in-house counsel for advice. Rule 1.6 seems to cover that situation as well.