If a client tells a lawyer not to report her former attorney's suspected fraud until her claims are resolved, must the lawyer report it anyway?

Plain-English summary

A client consulted Attorney A about potential claims against her former attorney, X, and his financial-counseling corporation, suspecting misappropriation of family funds and other wrongdoing. The client had no direct evidence but had learned of the suspicions from Y, a former lay partner of X who recommended she retain independent counsel. The client hired Attorney A to investigate, with Y's help, and directed that suit be filed if wrongdoing were found, but instructed Attorney A not to report any wrongdoing to the ARDC while a suit was contemplated or pending, fearing it would hamper recovery and alert family members still dealing with X.

The committee analyzed Rule 8.3(a), which requires a lawyer with knowledge not protected as a confidence that another lawyer committed fraudulent conduct to report it to a tribunal or authority empowered to act. A "confidence" is information protected by the attorney-client privilege. Under In re Himmel and related Illinois authority, the privilege covers communications from the client seeking legal advice and intended to stay confidential, and extends to communications with agents of the client or attorney, but is waived where the client intends the matters to be disclosed to non-agents. The committee assumed Y was retained to aid the investigation and was therefore the client's agent, so communications between Attorney A and Y were privileged and need not be divulged.

The committee concluded that if Attorney A's investigation produced unprivileged knowledge of X's violation of Rules 8.4(a)(3) and (4), that knowledge must be reported to the ARDC, and this obligation must be disclosed to the client at the outset of the representation. The client's wish to delay reporting until her claims resolved was not controlling; under Rules 8.3 and 8.4 and Himmel, the lawyer is affirmatively obligated to report unprivileged knowledge despite the client's instruction.

Currency note

This opinion was issued in 1991, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The mandatory-reporting analysis rests on In re Himmel and the then-current Rules 8.3 and 8.4; subsequent rule amendments or later opinions may have changed the analysis, and the reporting rule itself was later revised. Treat this page as historical context, not current guidance.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: Must a lawyer report a former attorney's suspected fraud if the client says not to?

A: The opinion concluded that once the lawyer has unprivileged knowledge of the former attorney's violation of Rules 8.4(a)(3) or (4), the lawyer must report it to the ARDC under Rule 8.3 despite the client's instruction.

Q: Does the lawyer have to report privileged information learned from the client or her agent?

A: No. The opinion concluded that communications protected by the attorney-client privilege, including those with the client's investigating agent, are confidences that need not be reported.

Q: When must the lawyer tell the client about the reporting obligation?

A: The opinion concluded the lawyer must disclose the reporting obligation to the client at the outset of the representation.

Background and rules framework

The opinion applied Rule 8.3(a) (mandatory reporting of another lawyer's misconduct that is not a protected confidence) together with Rule 8.4(a)(3) and (4) (dishonesty and fraud) and the confidentiality limit of Rule 1.6, defining "confidence" by the attorney-client privilege as construed in In re Himmel (Model Rules 1.6, 8.3, 8.4).

Citations and references

Rules of Professional Conduct:

• Model Rule 8.3 (reporting professional misconduct) / Illinois Rule 8.3(a)
• Model Rule 8.4 (misconduct; dishonesty and fraud) / Illinois Rule 8.4(a)(3), (4)
• Model Rule 1.6 (confidentiality) / Illinois Rule 1.6

Cases:

• In re Himmel, 125 Ill. 2d 531, 533 N.E.2d 790 (1988), duty to report another lawyer's misconduct.
• In re October 1985 Grand Jury, 124 Ill. 2d 466, 530 N.E.2d 453 (1988).

See also

• ISBA Ethics Op. 90-08: Duty to Report Information Gained During Representation
• ISBA Ethics Op. 90-28: Reporting Triggered by Actual Knowledge
• ISBA Ethics Op. 91-29: Opposing Lawyer's Threat Not Reportable

Source

• Landing page: https://www.isba.org/ethics/opinions/9107