Opinion No. 94-10

May 16, 1994

TOPIC: Judge's obligation to report an attorney to the ARDC after having found the attorney in direct criminal contempt of the court.

DIGEST: A finding of contempt may constitute an appropriate disciplinary measure, making further measures (i.e., notification to the ARDC) discretionary.

REFERENCES: Illinois Supreme Court Rule 63(B)(3) of the Code of Judicial Conduct, Canon 3, (145 Ill.2d R.63); Rules 8.3 and 8.4 of the Illinois Rules of Professional Conduct. See also Illinois Judicial Ethics Committee Opinion 93-1.

FACTS

An attorney insists that she should be allowed to personally question prospective jurors during voir dire. The judge informs the attorney that only he will be asking the questions. The attorney refuses to try the case if she is not allowed to question the venire panel. The judge holds the attorney in criminal contempt and sentences her to twenty-four hours incarceration.

QUESTION

Is the judge required to report the attorney's conduct to the Attorney Registration and Disciplinary Commission?

OPINION

Supreme Court Rule 63B(3) states that "a judge having knowledge of . . . a violation of Rule 8.4 of the Rules of Professional Conduct on the part of a lawyer shall take or initiate appropriate disciplinary measures." The attorney in this case may have violated subsections (a)(3) and/or (a)(5) of Rule 8.4. Subsection (a)(3) prohibits a lawyer from "commit{ting} a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." Criminal contempt is considered to be a crime. People ex rel. Kunce v. Hogan, 37 Ill. App. 3d 673, 683 (1976). Although the lawyer's conduct in question does not reflect adversely on her "honesty" or "trustworthiness," it may arguably call into question her "fitness as a lawyer." The lawyer's conduct here could also possibly be characterized as "conduct that is prejudicial to the administration of justice" as prohibited by subsection (a)(5) of Rule 8.4. Therefore, the judge in this case may have been obligated pursuant to Rule 63B(3) to take some disciplinary measures.

Even if the judge in this case was required to take disciplinary measures, notification to the ARDC would probably be unnecessary given the fact that the judge already addressed the attorney's misconduct through his finding of criminal contempt. Rule 63B(3) does not require that a judge having knowledge of a lawyer's misconduct report the misconduct to the ARDC. The Rule simply requires that the judge "initiate appropriate disciplinary measures." The Committee Comments to the Rule state, "Where misconduct by an attorney is involved, a finding of contempt may, in appropriate circumstances, constitute the initiation of appropriate disciplinary measures." See also People v. Camden, 210 Ill. App. 3d 921 (1991), Freeman v. Myers, 191 Ill. App. 3d 223 (1989) (both cases recognizing that attorney misconduct may be appropriately addressed by the trial court through a finding of contempt).

In conclusion, the contempt order in this case was an appropriate disciplinary action taken by the trial court. Although it is within the judge's discretion to report the misconduct to the ARDC, such further action is not required in this case.