In re Himmel
533 N.E.2d 790, 125 Ill. 2d 531 (1988)
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Rule of Law:
An attorney has an absolute, non-delegable duty to report another attorney's misconduct when they possess unprivileged knowledge of conduct involving moral turpitude, such as the conversion of client funds. This duty is not excused by a client's instruction to not report the misconduct.
Facts:
- In 1980, Tammy Forsberg retained attorney John R. Casey to represent her in a personal injury claim from a motorcycle accident.
- In 1981, Casey negotiated a $35,000 settlement on Forsberg's behalf, but he converted her share of the proceeds, amounting to $23,233.34.
- After years of being unable to collect her money, Forsberg retained a new attorney, James H. Himmel, in March 1983 to recover the funds from Casey.
- Himmel investigated and discovered that Casey had indeed misappropriated the settlement funds.
- Forsberg specifically instructed Himmel that she only wanted her money back and that he should take no other action.
- Himmel drafted an agreement wherein Casey would pay Forsberg $75,000 in exchange for her promise not to initiate any criminal, civil, or attorney disciplinary action against him.
- At no point did Himmel report Casey's conversion of funds to the Attorney Registration and Disciplinary Commission.
Procedural Posture:
- The Administrator of the Attorney Registration and Disciplinary Commission filed a complaint against respondent James H. Himmel with the Commission's Hearing Board.
- The Hearing Board found that Himmel had violated his duty to report and recommended a private reprimand.
- The Administrator filed exceptions to the recommendation with the Review Board.
- The Review Board found that Himmel had not violated a disciplinary rule and recommended that the complaint be dismissed.
- The Administrator then filed a petition for leave to file exceptions with the Supreme Court of Illinois, which the court granted.
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Issue:
Does an attorney violate Rule 1-103(a) of the Code of Professional Responsibility by failing to report another attorney's conversion of client funds when that knowledge is unprivileged, even if the client instructs the attorney not to report the misconduct?
Opinions:
Majority - Justice Stamos
Yes. An attorney who possesses unprivileged knowledge of another attorney's misconduct involving moral turpitude has an absolute duty to report that misconduct, and this duty cannot be excused by the client's instructions. The information Himmel possessed about Casey's conversion was not protected by the attorney-client privilege. The privilege is waived when communications are made in the presence of third parties who are not agents of the client, as Forsberg's communications were. Furthermore, the privilege does not apply to information a client intends for their attorney to disclose to third parties. Forsberg consented to Himmel discussing Casey’s conversion with the insurance company, its lawyer, and Casey himself, thus waiving any privilege. An attorney's duty as an officer of the court to uphold the Code of Professional Responsibility is paramount and cannot be circumvented by a client's directive. Himmel's failure to report interfered with the disciplinary commission's function and potentially allowed Casey to harm other clients.
Analysis:
In re Himmel establishes a bright-line rule that the attorney's duty to report serious professional misconduct is mandatory and supersedes a client's wishes to the contrary, provided the information is not privileged. This decision elevates the legal profession's self-policing responsibility above the immediate interests or instructions of an individual client. It clarifies that the attorney-client privilege is narrowly construed and can be easily waived, removing a common potential defense for failing to report. The case serves as a powerful warning to attorneys that their primary duty is to the integrity of the justice system, and failing to report known, unprivileged misconduct will result in significant discipline.
