Opinion No. 95-17

September 13, 1995

TOPIC: Requirement that judge report attorney misconduct where attorney has been convicted of misdemeanor battery in jury trial before judge.

DIGEST: Not all convictions of battery require report to Attorney Registration and Disciplinary Commission, but prudent course for judge is to make report.

REFERENCES: Illinois Supreme Court Rule 63B(3) of the Code of Judicial Conduct, Canon 3, (145 Ill.2d R.63): "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 action." Illinois Rules of Professional Conduct, Rule 8.4(a)(3): "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"; Hallinan v. Committee of Bar Examiners, (1966) 65 Cal.2d 447, 450-451, 55 Cal.Rptr. 228, 421 P.2d 76.

FACTS

The judge presided over a jury trial in which the defendant, a lawyer, was found guilty of misdemeanor battery.

QUESTION

Must the judge report the defendant-attorney to the Attorney Registration and Disciplinary Commission (ARDC)?

OPINION

Rule 63B(3) requires that a judge with knowledge take or initiate appropriate disciplinary measures with regard to all violations of Rule 8.4 of the Illinois Code of Professional Conduct. Here, the attorney's conviction provides the judge with knowledge that the attorney committed the crime of battery. The relevant section of Rule 8.4 provides that it is misconduct for a lawyer to commit a criminal act "that reflects adversely on the lawyer's...fitness as a lawyer." Thus, the judge must report the attorney if the particular offense reflects adversely on the defendant's fitness to practice law.

Conviction of misdemeanor battery does not inevitably reflect adversely on fitness to practice law. See Hallinan v. Committee of Bar Examiners, (1966) 65 Cal.2d 447, 450-451, 55 Cal.Rptr. 228, 421 P.2d 76. On the other hand, the facts of a particular battery could well reflect adversely on fitness for practice, if, for example, there had been a relationship of trust and confidence between the lawyer and the victim. Similarly, a defendant's lack of candor before the jury might indicate unfitness.

Professor Wolfram identifies a series of factors that have been used to determine whether or not the commission of a crime disqualifies one from law practice. These factors include: the nature of the original offense, the length of imprisonment or the size of the fine, whether the lawyer has received or sought a pardon or expungement, the age and circumstances of the lawyer at the time of the offense, whether the lawyer expresses remorse, and whether the lawyer was candid about the offense. Modern Legal Ethics at 862. It is certainly possible that the judge's application of these factors would differ from the ARDC's, but it is the ARDC that is charged with assessing lawyer misconduct.

Given the interpretive nature of the "fitness" judgment, there are three possible outcomes whenever a lawyer has been convicted of a crime such as battery:

(1) If the judge is certain that the facts of the offense reflect adversely on the lawyer's fitness to practice, then reporting is mandatory under Rule 63B(3);

(2) If the judge is certain that the offense does not reflect adversely on the attorney's fitness, then reporting is not required;

(3) If the judge is uncertain as to the effect of the particular offense on the lawyer's fitness to practice, then the prudent course of action is to report the lawyer. The ARDC may then make its own determination as to whether the specific crime warrants professional discipline.