1999-06: Duty of a judge to report lawyer misconduct to the ARDC.

Opinion 99-6

April 14, 1999

TOPIC: Duty of a judge to report lawyer misconduct to the ARDC.

DIGEST: A judge must take appropriate disciplinary action against a lawyer whom the judge knows to have committed an ethical violation, but need not report the misconduct to the Attorney Registration and Disciplinary Commission.

REFERENCES: Illinois Supreme Court Rule 63B(3); Illinois Rules of Professional Conduct, Rule 8.3(a); McDunn v. Williams, 156 Ill. 2d 288 at 309 (1993); Illinois Judicial Ethics Committee Opinion Nos. 94-10 and 95-10.

FACTS

Based on an executed entry of appearance and waiver of notice filed by a lawyer in a divorce suit, the judge of one circuit entered a default divorce. Later, the husband in the case filed a motion to vacate on the ground that the waiver of default form was a document that he had filed in another circuit some months previously, and which had been rescinded by the husband. The form filed in the other circuit appears to have been altered to look like it had been executed for the present suit when the lawyer knew it had been rescinded in the other circuit. For the purposes of this opinion, it is assumed that the judge had knowledge of the lawyer's misconduct in altering the document.

QUESTION

Must the judge report the lawyer who filed the false document to the ARDC?

OPINION

This question involves an apparent conflict between two rules of the Illinois Supreme Court. Rule 63B(3) 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 action.

Rule 8.3(a) of the Rules of Professional Conduct states:

A lawyer possessing knowledge not otherwise protected as a confidence by these Rules or by law that another lawyer has committed a violation of Rule 8.4(a)(3) or (a)(4) shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.

Because judges are also subject to the Rules of Professional Conduct, there is an apparent conflict between the two rules. However, one of the basic principles of statutory construction is that specific statutory provisions generally control over general provisions on the same subject, McDunn v. Williams. Because judges form a sub-class of lawyers, rules pertaining only to judges are specific when they conflict with rules pertaining to lawyers in general.

Rule 63B(3) requires that a judge "take or initiate appropriate disciplinary measures". Judges have available an array of disciplinary measures that are not available to lawyers, ranging from publicly or privately chastising the lawyer, e.g., for a sexist or racist remark, to holding the lawyer in contempt, to reporting the lawyer to the Attorney Registration and Disciplinary Commission. Care should be taken to punish the lawyer, however, not the client. Any of these sanctions may be an appropriate disciplinary measure depending on the circumstances. This Committee has previously addressed a situation in which a sentence for contempt is an "appropriate disciplinary measure" (IJEC Opinion No. 94-10) and a situation in which the reporting of use of cocaine to the ARDC was required because there was no other "appropriate disciplinary measure" (IJEC Opinion No. 95-10).

Necessarily, lawyer misconduct spans a continuum of behavior. The Committee believes that at a minimum, if the lawyer misconduct (if proved) would constitute a crime, the judge is under an obligation to notify the ARDC. No sanction available to the judge under that circumstance would be appropriate if suspension or disbarment were a possible result of ARDC proceedings.

In the situation presented, the lawyer's actions could possibly constitute a forgery in that he made an effort to have the pleading appear to be something it was not. Hence, the lawyer's action is potentially a crime. If the judge does not report the conduct, it would probably go unchallenged. The facts as presented suggest that the judge should exercise his or her discretion by reporting the lawyer to the Attorney Registration and Disciplinary Commission.

The Committee declines to speculate on whether the judge would be subject to discipline for not reporting behavior tantamount to a crime if the judge imposed other sanctions. Certainly the prudent judge would consider the gravity of the behavior when deciding whether or not to report the lawyer to the ARDC.