533 N.E.2d 790 (Ill. 1988)
James H. Himmel was licensed to practice law in Illinois on November 6, 1975.1 In October 1978, Tammy Forsberg was injured in a motorcycle accident. In June 1980, she retained John R. Casey to represent her in any personal injury or property damage claim resulting from the accident.2 Sometime in 1981, Casey negotiated a settlement of $35,000 on Forsberg’s behalf pursuant to an agreement under which one-third of any monies received would be paid to Casey as his attorney fee.3
In March 1981, Casey received the $35,000 settlement check, endorsed it, and deposited the check into his client trust fund account. Subsequently, Casey converted the funds.4 Between 1981 and 1983, Forsberg unsuccessfully attempted to collect her $23,233.34 share of the settlement proceeds.5 In March 1983, Forsberg retained Himmel to collect her money and agreed to pay him one-third of any funds recovered above $23,233.34.6
Himmel investigated the matter and discovered that Casey had misappropriated the settlement funds.7 In April 1983, Himmel drafted an agreement in which Casey would pay Forsberg $75,000 in settlement of any claim she might have against him for the misappropriated funds, and by the terms of the agreement Forsberg agreed not to initiate any criminal, civil, or attorney disciplinary action against Casey. This agreement was executed on April 11, 1983.8 Himmel stood to gain $17,000 or more if Casey honored the agreement. In February 1985, Himmel filed suit against Casey for breaching the agreement, and a $100,000 judgment was entered against Casey, under which Himmel’s share would have been approximately $25,588 if satisfied.9
At no time did Himmel inform the Commission of Casey’s misconduct.10 In April 1985, the Administrator filed a petition to have Casey suspended from practicing law because of his conversion of client funds. Casey was subsequently disbarred on consent on November 5, 1985.11 A hearing on the complaint against Himmel was held before the Hearing Board of the Commission on June 3, 1986.12 Before retaining Himmel, Forsberg collected $5,000 from Casey.13 After being retained, Himmel made inquiries regarding Casey’s conversion by contacting the insurance company that issued the settlement check, its attorney, Forsberg, her mother, her fiance, and Casey.14 Forsberg told Himmel that she simply wanted her money back and specifically instructed him to take no other action. Because of Himmel’s efforts, Forsberg collected another $10,400 from Casey, and Himmel received no fee.15
The Hearing Board found that Himmel received unprivileged information that Casey converted Forsberg’s funds and that he failed to relate the information to the Commission. The Review Board reviewed the matter upon the Administrator’s exceptions and recommended that the complaint be dismissed. The Supreme Court granted the Administrator’s petition for leave to file exceptions to the Review Board’s report and recommendation.16
Whether the Review Board erred in concluding that respondent’s client had informed the Commission of misconduct by her former attorney?17
The canons of ethics in the Code constitute a safe guide for professional conduct, and attorneys may be disciplined for not observing them. Common sense would dictate that if a lawyer has a duty under the Code, the actions of a client would not relieve the attorney of his own duty. Accordingly, while the parties dispute whether or not respondent’s client informed the Commission, that question is irrelevant to the inquiry.18
No. The court determines that any report by the client to the Commission does not relieve the attorney of the independent duty to report under Rule 1-103(a). Applying the rule to the established facts, Himmel possessed unprivileged knowledge of Casey’s conversion of client funds. He remained obligated to disclose that information to the Commission regardless of any contact Forsberg may have made before retaining Himmel. The factual dispute over Forsberg’s actions therefore has no bearing on whether Himmel violated the reporting obligation.19
The Review Board did not err in a manner affecting the outcome because the question of the client’s report is irrelevant to whether the attorney violated the disciplinary rule.20
Whether the Review Board erred in concluding that respondent had not violated Rule 1 — 103(a)?21
Rule 1 — 103(a) of the Code states that a lawyer possessing unprivileged knowledge of a violation of Rule 1 — 102(a)(3) or (4) shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation. Rule 1 — 102(a)(3) prohibits illegal conduct involving moral turpitude. Rule 1 — 102(a)(4) prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation. Information is not privileged if it is communicated in the presence of third parties who are not agents of the client or attorney or if it is intended for disclosure to third parties.22
Yes. Himmel received unprivileged knowledge of Casey’s conversion of Forsberg’s funds. The information was discussed while Forsberg’s mother and fiancé were present. It was also voluntarily disclosed to the insurance company, its attorney, and Casey himself.
Conversion of client funds constitutes illegal conduct involving moral turpitude. Himmel never informed the Commission of the misconduct at any time despite having this knowledge. The information was not protected by privilege under the definition requiring confidentiality and no intent of disclosure to third parties. Therefore Himmel violated Rule 1 — 103(a).23
The Review Board erred in concluding that respondent had not violated Rule 1 — 103(a).24
Whether the proven misconduct warrants at least a censure?25
The purposes of attorney discipline are to maintain the integrity of the legal profession, to protect the administration of justice from reproach, and to safeguard the public. Public discipline is required when an attorney’s failure to report deprives the Commission of evidence of serious misconduct and interferes with its investigative function. Client approval of an attorney’s action does not immunize the attorney from discipline, and discipline may be appropriate even absent a dishonest motive.26
Yes. Himmel’s failure to report Casey’s conversion interfered with the Commission’s investigation and allowed further misconduct to occur, while Himmel instead drafted and pursued a settlement agreement under which Forsberg agreed not to initiate disciplinary action. In the established facts, Himmel stood to gain between $17,000 and approximately $25,588 under the agreement and subsequent judgment. The conduct contravened the prohibition against compounding a crime.
These facts establish that a private reprimand is insufficient and that public discipline is necessary to fulfill the purposes of the disciplinary process.27
The proven misconduct warrants a one-year suspension from the practice of law.28