Opinion 95-10

June 20, 1995

TOPIC: Judge's duty to report to ARDC a lawyer who testifies in court that he or she used cocaine.

DIGEST: A lawyer's testimony that he or she used cocaine confers the judge presiding over that proceeding with knowledge that the lawyer violated Rule 8.4 of the Illinois Rules of Professional Conduct. Consequently, the judge is required to "take or initiate appropriate disciplinary measures" against the lawyer. Under the circumstances presented in this inquiry, the judge is required to report the lawyer to the ARDC.

REFERENCES: Illinois Supreme Court Rule 62A of the Code of Judicial Conduct, Canon 2 (145 Ill.2d R. 62); Illinois Supreme Court Rule 63B(3) of the Code of Judicial Conduct, Canon 3 (145 Ill.2d R. 63); Committee Comments to Supreme Court Rule 63B(3); Terminology section of the Code of Judicial Conduct; Rules 8.3(a) and 8.4 of the Illinois Rules of Professional Conduct; 720 ILCS 570/402; In re Scarnavack, 108 Ill.2d 456, 485 N.E.2d 1 (1985); In re Lunardi, 127 Ill.2d 413, 537 N.E.2d 767 (1989); In re Himmel, 125 Ill.2d 531, 533 N.E.2d 790 (1988); In re McLaughlin, 522 A.2d 999 (N.J. 1987); In re Higgins, 480 N.Y.S.2d 257 (N.Y. App. Div. 1984); In re Anonymous Member of South Carolina Bar, 360 S.E.2d 322 (S.C. 1987); Illinois Judicial Ethics Committee Opinion Nos. 93-01 and 94-10; Illinois State Bar Association Committee on Professional Conduct Opinion No. 94-18 (1995).

FACTS

During the cross-examination of a lawyer who was the petitioner in a custody hearing, the lawyer admitted that on a certain date he used cocaine.

QUESTIONS

1. Does the lawyer's use of cocaine violate Rule 8.4 of the Illinois Rules of Professional Conduct?

2. Does the judge have "knowledge" that the lawyer violated Rule 8.4?

3. If the judge has knowledge that the lawyer violated Rule 8.4, is the judge required to report the lawyer to the ARDC?

4. If the judge is required, or otherwise decides, to report the lawyer to the ARDC, when and how should the judge do so?

OPINIONS

I

This inquiry is governed by Supreme Court Rule 63B(3), which states:

"A judge having knowledge of a violation of these canons on the part of a judge or 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 threshold question is whether the lawyer's admitted use of cocaine constitutes a violation of Rule 8.4. Although no reported decisions in Illinois address this issue, 1the Committee believes that it does.

Rule 8.4(a)(3) states that a lawyer shall not:

"commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects."

Possession of cocaine is a felony. See 720 ILCS 570/402. Particularly since there is no indication that the crime was committed in the distant past, the Committee believes that the lawyer's wilful and knowing commission of such an act reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in violation of Rule 8.4(a)(3). Accord, Illinois State Bar Association Committee on Professional Conduct Opinion No. 94-18 (1995), at 3 ("Certainly, the use and/or possession of cocaine is a criminal offense and may be the type of criminal act that reflects adversely on the 'fitness as a lawyer in other respects.'"). See also In re McLaughlin, 522 A.2d 999 (N.J. 1987) (conspiracy to obtain and possess

cocaine reflects adversely on fitness to practice law); In re Higgins, 480 N.Y.S.2d 257 (N.Y. App. Div. 1984) (conviction of possession of marijuana reflects adversely upon legal profession and lawyer's own fitness to practice law); In re Anonymous Member of South Carolina Bar, 360 S.E.2d 322 (S.C. 1987) (same).

II

The Committee also believes that the judge who presided over the hearing in which the lawyer testified to his use of cocaine has "knowledge," within the meaning of Supreme Court Rule 63B(3), that the lawyer violated Rule 8.4. The Terminology section of the Code of Judicial Conduct defines "knowledge" as "actual knowledge of the fact in question. A person's knowledge may be inferred from the circumstances."

The Committee believes that one way in which a judge can acquire knowledge of a lawyer's wrongdoing is by presiding over a hearing in which the lawyer admits such wrongdoing when testifying. In this inquiry, the testifying lawyer possessed firsthand knowledge of his use of cocaine. There is no danger, as there might be if someone else were testifying about the lawyer's conduct, that the person testifying misperceived or misunderstood the nature of the lawyer's actions. Nor is there any basis to suspect that the lawyer was fabricating that information; to the contrary, the disclosure was elicited on cross-examination for use against the lawyer. Consequently, the Committee believes that the judge who presided over that hearing acquired knowledge, within the meaning of Supreme Court Rule 63B(3), that the lawyer violated Rule 8.4 of the Rules of Professional Conduct.

III

As the Committee Comments to Supreme Court Rule 63B(3) make clear, that rule "is not limited to . . . [misconduct] that occurred before the judge. . . ." Consequently, even though the judge did not witness the testifying lawyer use cocaine, the judge's knowledge that the lawyer violated Rule of Professional Conduct 8.4 requires the judge to take or initiate appropriate disciplinary measures.

The nature of disciplinary measures that are "appropriate" necessarily depends upon the nature of the misconduct in question. The Committee has previously opined that appropriate disciplinary measures under Rule 63B(3) do not invariably include reporting an offending lawyer to the Attorney Registration and Disciplinary Commission (ARDC). See IJEC Opinion No. 94-10 (judge need not report to ARDC lawyer whom the judge held in criminal contempt for refusal to try case without opportunity to question prospective jurors during voir dire).

Nevertheless, under the facts of this inquiry, the Committee believes that the judge is required to report the testifying lawyer to the ARDC. Two considerations support this conclusion:

First, no other actions are even arguably "appropriate." Unlike the facts involved in IJEC Opinion No. 94-10, the lawyer did not engage in any lawsuit-related misbehavior which could justify the use of sanctions or the court's contempt power. Reporting the lawyer to the ARDC is therefore the only kind of meaningful disciplinary action that is available. 2

Second, the lawyer's offense is a type of misconduct--i.e., a violation of Rule of Professional Conduct 8.4(a)(3)--that usually warrants making a report to the ARDC. Significantly, the duty imposed on judges by Supreme Court Rule 63B(3) is broader in some respects than the duty imposed on lawyers by Rule of Professional Conduct 8.3(a) to report misconduct of other lawyers. While the former rule requires judges to take or initiate appropriate disciplinary measures against lawyers who violate any portion of Rule of Professional Conduct 8.4, the latter rule limits lawyers' duty to report misconduct to actions that violate Rule 8.4(a)(3) or (4). Except for misconduct during the course of litigation that can be punished by a court, a lawyer who knows of another lawyer's violation of Rule 8.4(a)(3) or (4) is ordinarily required to report that information to the ARDC. See generally In re Himmel, 125 Ill.2d 531, 533 N.E.2d 790 (1988) (disciplining lawyer who failed to report lawyer who misappropriated clients' funds). Similarly, the Committee believes that a lawyer's violation of subparagraphs (a)(3) or (4) of Rule 8.4, as opposed to other provisions of that Rule, is a factor militating in favor of a judge's duty to report the offending lawyer to the ARDC. Cf. IJEC Opinion No. 93-01 (judge is not required to report to ARDC lawyer who violated prohibition against ex parte communications contained in Rule of Professional Conduct 3.5(i)). 3

IV

Having concluded that the judge must report the testifying lawyer to the ARDC, the question remains when and how to do so. Although the Code of Judicial Conduct does not impose any mandatory requirements in this regard, the Committee offers the following guidelines to assist in discharging this sensitive obligation.

The Committee believes that there is inherent tension between judges' obligations under Supreme Court Rule 63B(3) and their responsibility, under Supreme Court Rule 62A, to conduct themselves "in a manner that promotes public confidence in the . . . impartiality of the judiciary." This tension is particularly acute with respect to a lawyer's misconduct that comes to light during a hearing or trial. If the judge concludes that the lawyer should be reported to the ARDC, doing so immediately could foster an impression that the judge is biased against the lawyer or the lawyer's client. Accordingly, so long as the nature of the misconduct does not give rise to any threat that others could be harmed if the initiation of disciplinary proceedings is deferred, 4the Committee believes that it would be preferable to wait until the conclusion of the hearing before bringing the matter to the attention of the ARDC.

Specifically, the Committee recommends that, once the hearing is concluded, the judge forward a transcript of the proceedings reflecting the lawyer's misconduct to the ARDC. It is suggested that the judge's transmittal letter state in substance:

"Pursuant to my responsibilities under Supreme Court Rule 63B(3), I am transmitting the enclosed transcript of proceedings on [date] in [case name and number] to enable the ARDC to initiate such proceedings, if any, it deems appropriate with respect to the conduct of [name of lawyer] reflected in the transcript."