Duty to report opposing lawyers threat against client to pursue criminal prosecution

Facts

Attorney A represents husband in an action for dissolution of marriage. In the course of settlement negotiations, attorney B, representing the wife, stated in a letter to A the following, "My client was inclined, and still is inclined, to unveil this sham to the bank and ask that (A's client) be prosecuted." (Reference was to allegation that husband forged wife's signature to mortgage.)

Questions

1. Is the statement of inclination to take action resulting in criminal prosecution, made during settlement negotiations in a civil matter, pressure to gain an advantage which is violative of the Rules of Professional Conduct?
2. Does a violation of Rule 1.2(e) create an obligation to report the wrongdoing attorney pursuant to the dictates of In re Himmel, to the Attorney Registration and Disciplinary Commission?

Opinion

Illinois Rules of Professional Conduct, Rule 1.2(e) clearly states: "A lawyer shall not present, participate in presenting, or threaten to present criminal charges or professional disciplinary actions to obtain an advantage in a civil matter."

The conduct of Attorney B in suggesting during settlement negotiations that Attorney A's client may be criminally prosecuted is clearly an attempt to gain an advantage and not a statement of objective fact. The statement does violate Rule 1.2(e).

Attorney A does not, however, have an obligation to report such a statement pursuant to In re Himmel, 125 Ill.2d 531. The mandatory reporting required (Rule 8.3(a)), is that of acts constituting illegal conduct or conduct involving dishonesty, fraud or misrepresentation (Rule 8.4(a)(3) and (4)).

The reporting of the attorney's comments relating to the conduct of the client is not conduct of the attorney which would require reporting. Attorney B's letter containing the violation of Rule 1.2(e) is misconduct under Rule 8.4(a)(1) which is not a mandatory report under Rule 8.3(a).

References

• Illinois Rules of Professional Conduct, Rules 1.2(e), 8.3(a), 8.4(a)(3) and 8.4(a)(4)
• In re Himmel, 125 Ill.2d.531, 533 N.E.2d 790 (Ill. 1988)
• ISBA Opinion 90-36

Note

This Opinion was AFFIRMED by the Board of Governors in May 2010. Please see the 2010 Illinois Rule of Professional Conduct 8.4(b), (c), and (g) as well as ISBA Ethics Advisory Opinion 90-29. This opinion was affirmed based on its general consistency with the 2010 Rules, although the specific standards referenced in it may be different from the 2010 Rules. Readers are encouraged to review and consider other applicable Rules and Comments, as well as any applicable case law or disciplinary decisions.