There may be a double "whammy" in being a legal malpractice defendant. In addition to being a defendant, the plaintiff may be obligated to report you to the Attorney Registration & Disciplinary Commission (ARDC) if the alleged malpractice misconduct violates Rules 8.3(a), 8.4(b) or (c) of the Illinois Rules of Professional Conduct ("Rules"). This mandatory reporting heightens the stakes of any malpractice claim and may complicate the defense of the case.
What the legal malpractice rules require
Rule 8.4 (b) and (c) describe particular types of lawyer misconduct:
8.4. It is professional misconduct for a lawyer to
- (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
- (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
If any violation of 8.4(b) or (c) is part of a legal malpractice complaint, a report by plaintiff's counsel is mandatory. The 2010 revisions to the Illinois Rules of Professional Conduct state:
Rule 8.3 Reporting Professional Misconduct provides:
- A lawyer who knows that another lawyer has committed a violation of Rule 8.4(b) or Rule 8.4(c) shall inform the appropriate professional authority.
What triggers a reporting requirement?
The elements giving rise to reporting requires:
- Non-privileged information;
- A violation of 8(b) or (c) of the Illinois Rules of Professional Conduct; and
- The report must be to the proper authority
Under the rules, "knowledge" is defined in Rule 1.0(f) as knowledge which "may be inferred from the circumstances". As the court in Skolnick noted, knowledge must be more than a "mere suspicion," but it does not require "absolute certainty". Skolnick, supra at 228. Second, the information must not be privileged, or consent to waive the privilege must be given by the client. Rule 8.3(c). Third, only violations of 8.4(b) or (c) must be reported, other violations are not within the scope of the reporting requirement. Garden variety negligence legal malpractice claims will not fall within the disclosure requirements.
Effect of an attorney’s failure to report misconduct of another
In In re Himmel, 125 Ill. 2d 531 (1988), the Supreme Court made clear that the failure of an attorney to report another attorney's misconduct, was, in and of itself, an ethical violation. In 2000, the court added clarity to the requirement. Filing a legal malpractice complaint and thereby advising the trial court of the misconduct does not discharge the ethical duty of the lawyer to report misconduct under Rule 8.3(a). Skolnick v. Altheimer & Gray, 191 Ill. 2d 214, 229 (2000).
Rather, the report must be made to a tribunal "empowered to act" on the reported misconduct. Id. The court in Skolnick made clear that a trial court is not the proper authority to enforce the ethical rules, that is not the trial court's role. So merely filing the complaint does not constitute a "report". Id. In Illinois, that authority is exclusively delegated by the Supreme Court to the Attorney Registration & Disciplinary Commission ("ARDC"). Skolnick, supra at 229. In the Rule amended in 2010, the report must be made to the "appropriate professional authority", which almost always is the ARDC.
The obligation of legal malpractice plaintiffs
For the legal malpractice plaintiff, it is important to be attuned to this requirement and make sure you have solid "knowledge" supporting your pleading that at a minimum meets the pleading requirements of Illinois Supreme Court Rule 137. Rule 137 provides in pertinent part:
- "The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other document, that to the best of his knowledge, information and belief, formed after reasonable inquiry it is well grounded in fact and warranted by existing law or a good faith argument for the extension, modification or reversal of existing law…"
Compliance with Rule 137 intersects with the concept of "knowledge" under Rule 8.3(a).
If your complaint allegations are sufficient under rule 137 and the allegations fall within the parameters of 8.4(b) or (c), you must report. It is important that any legal malpractice complaint be solidly supported by facts, but it is even more important if the complaint filing will trigger this ARDC reporting requirement.
Skills required of legal malpractice defense counsel
For the legal malpractice defendant, it is possible you will be conducting a dual defense: in court and before the ARDC. For the defendant who is in this situation, it might be advisable to ensure your legal malpractice attorney has practiced before the ARDC or that defense counsel is willing to partner with someone who is experienced in appearing before the ARDC. Obtaining this expertise should not come after the ARDC decides to file charges. It is needed when the defendant is initially responding to an ARDC inquiry. In other words, earlier is better.
For all parties a complaint alleging misconduct that falls under Rules 8.4(b) and (c) raises serious ethical issues. At every stage, counsel for each side must be cognizant of the implications of the allegations from both a liability and ethical perspective.
For more information about this topic, contact Sara E. Cook at McKenna Storer.
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