Brass Tacks Post: Litigation and ARDC Investigations

In the heat of a pitched litigation battle, Illinois lawyers sometimes report each other to the ARDC. These reports are often styled as “HimmeL” reports, i.e., reports made pursuant to a perceived duty to report another attorney’s alleged misconduct. Many of them are not, in fact, “Himmel” reports, even if the reporting lawyers characterize them that way. The duty to report is quite limited, more so than many lawyers believe it to be – it requires reporting only when the prospective reporter has knowledge that another lawyer has engaged in criminal conduct or conduct involving dishonesty.

But even if a report doesn’t have to be made, it can be, and it can occur during any stage of contested litigation. Every case is different, of course, and the fact of the pending litigation may not always cause particular concern when it comes time to respond to the ARDC’s request for information. But it’s more common that concerns will arise. An ARDC investigation is, after all, another forum in which information about a matter is exchanged, and it is outside the discovery structure of litigation. Even if some information is deemed excludable from discovery – whether by agreement, by order, by privilege assertion –the ARDC can still legitimately ask for it to be produced in the context of its confidential investigation, and it may be in the responding lawyer’s interests to turn it over to the ARDC while not producing it in the litigation. This holds true whether the lawyer is representing a client in the litigation, or whether the lawyer herself is a party to the litigation.

But can it be done? Can the lawyer safely turn litigation-significant materials over to the ARDC? In general, yes, but carefully and with an eye to making sure that sensitive documents don’t fall into the wrong hands. The ARDC is aware of the possibility that it could be used as a sort of discovery workaround, a way for a reporting party to get information to which it is not otherwise entitled. The ARDC rightly does not consider that an appropriate use of its mechanisms and functions, and it seeks to avoid becoming embroiled in such things. It would not do for an agency with a public-protection mission to be seen as favoring or assisting one side or another in litigation.

Thus, the ARDC is often receptive to responding lawyers’ requests to limit the ways in which reporting parties can gain access to materials that the responding lawyer submits in connection with an ARDC inquiry. The most common and best way is to preface a written response with a request that the Administrator not provide a copy of the response, or any responsive materials, to the complaining witness (“CW”). Ordinarily, the Administrator provides a copy of the response and its attachments to the CW, as part of the process of obtaining further information about the matter. But there is no rule that requires that to happen, and the Administrator can go about getting additional information – where necessary – without sending copies of responses to CWs. The Administrator most often agrees to requests to limit or avoid disclosures of information to CWs, so it’s a request well worth making.

The responding lawyer should then continue to be sensitive to conditions on the ground – if the posture of the relevant litigation changes, or if the litigation ends, then the lawyer should consider how that affects her previous disclosures of information to the ARDC. She should also be ready to supplement her prior responses with additional information about the status of the litigation.

Implicit in those recommendations is another key point: the Administrator is never obligated to, and rarely does, stop or conclude an investigation just because litigation is pending. Whether the Administrator learns of the litigation at its outset, or sometime during the proceedings; whether the litigation is hotly and immediately contested or dormant, the Administrator can keep investigating. Lawyers sometimes respond to an initial inquiry under these circumstances by telling the Administrator that litigation is pending, and declining to provide specific information in response.

That is not recommended. The Administrator need not, and does not, take that approach at face value. If anything, the lawyer who responds that way risks further and potentially more thorny inquiries – Administrator’s counsel may, for example, require her to give a sworn statement regarding her conduct. Giving a sworn statement is akin to being deposed within the context of the Administrator’s confidential investigation. S.Ct.R. 766 thus generally requires the Administrator to keep transcripts of statements confidential, so there is usually little risk that the lawyer’s testimony will become part of related litigation. However, the lawyer should seek not to run even that risk, or the general risk of appearing uncooperative. The better approach is simply to accept that the Administrator can and will investigate even despite pending litigation, and to proceed as openly and cooperatively as possible.

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