Ethics Question of the Week: Do I have an obligation to report lawyer misconduct when acting as a mediator?
Q. While acting as a mediator, I know that a lawyer appearing before me has committed acts of misrepresentation. Do I have to report that misconduct?
A. Illinois Rule of Professional Conduct 8.3(a) states that “(a) lawyer who knows that another lawyer has committed a violation of Rule 8.4(b) or Rule 8.4(c) shall inform the appropriate professional authority.” Rule 8.4(c) makes engaging in misrepresentation a violation of the Rules. ISBA Advisory Opinion 11-01 further explores this issue and concludes that nothing about a mediator’s role, and particularly the absence of any attorney-client privilege between the mediator and any party, extinguishes a reporting obligation.
ISBA members can browse past ISBA Ethics Opinions, access our Ethics Hotline, and other resources on the ISBA Ethics Page.
Disclaimer. These questions are representative of calls received on the ISBA’s ethics hotline. The information provided below is meant as an educational tool to highlight potentially applicable Illinois RPC or other ethics resources that might help the lawyer answer the question posed. The information provided isn’t legal advice. Because every situation is different, often complex, and the law is constantly evolving, you shouldn’t rely upon this general information without conducting your own research.
Member Comments (2)
In the context of a mediation, the participants, including the Mediator, usually sign a confidentiality agreement. How does such an agreement impact any obligation to disclose misconduct?
Keep in mind that by statute, 710 ILCS 40/8 (and potentially by virtue of local rules if the mediation is court annexed) mediation is confidential to the extent agreed on by the parties. If there is such a confidentiality agreement, arguably information learned in the mediation is confidential and protected by law. Note that Rule 8.3, which gives rise to the Himmell obligation to report attorney misconduct, states that the lawyer owes such a duty unless the information is "protected by the attorney-client privilege or by law."