End-of-life notice: American Legal Ethics Library
As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.
Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.
We regret any inconvenience.
Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.
Illinois Legal Ethics
0.1:100 Sources of Law and Guidance
The Illinois Supreme Court adopted, effective August 1, 1990, a version of the ABA Model Rules of Professional Conduct (the "MR"), entitled the Illinois Rules of Professional Conduct (the "IRPC"). The IRPC, as of the above date, in turn replace the Illinois Code of Professional Responsibility (the "Illinois Code"), which was adopted effective July 1, 1980 which, in turn, was an adaptation of the ABA Code of Professional Responsibility (the "ABA Code"). The Illinois adaptation omitted the Ethical Considerations, a major part of the ABA Code, from the text.
In neither case was the ABA language adopted intact and both documents were amended from time to time.
The commentaries contained herein treat the Illinois Rules of Professional Conduct as they stood as of December 1, 1996.
In Illinois the Supreme Court has issued other rules, from time to time, which govern the conduct of lawyers and lie outside the Illinois Rules.
Apart from those portions of Article VII of the Supreme Court Rules which relate to admission to the Bar, including the license of foreign legal consultants, Rule 721 governs the use of professional service corporations for the practice of law; Rule 730 relates to group legal services. Rule 751 through 780 define the powers and procedures of the Attorney Registration and Disciplinary Commission and the rules of the Attorney Registration and Disciplinary Commission are established as a separate body of rules.
Under Rule 775 communication of complaints to the Attorney Registration and Disciplinary Commission carry an absolute privilege and the complaining party is immune from all civil liability arising from such communications.
Rule 769 requires attorneys to maintain the identity and name and last known address of each client and records reflecting whether representation is current or concluded; and all financial records relating to the practice for not less than seven years.
The Rules of Federal District Courts for the three districts located in Illinois are described hereinafter.
Apart from the Illinois Code and the IRPC described in 0.1:100, there are no other Professional Codes governing the legal profession and the practice of law.
The unauthorized practice of law is partially governed by statute 705 ILCS 205/1 (1997).
The Introductory Sections
The Introductory Sections of the IRPC consist of a Preamble and Terminology. That portion of the ABA MR, entitled "Scope", was omitted from the Illinois text in its entirety. The omission thereby leaves the IRPC silent on the issue of their applicability to civil liability, whereas the ABA Scope section asserts, in extreme form, the separation of the Rules from any application defining a lawyer's duties for purposes of litigation.
The Preamble to the IRPC differs from the ABA text, although affirming, as the ABA does, the lawyer's obligations to the profession and to society. The principal area of difference lies in the omission by Illinois of the extensive language in the MR asserting the self-governing nature of the legal profession.
The Terminology of the IRPC largely follows the MR text, but adds definitions of "Confidence", "Secret", "Person" and "Contingent Fee Agreement". Since the IRPC use throughout "disclose" and "disclosure" wherever the ABA text uses "consult" or "consultation", the definitions in the Terminology apply to the former words. The Illinois definitions of "firm or law firm", and "partner" are slightly more expansive than the ABA definitions.
[The discussion of this topic has not yet been written.]
0.2:200 Forms of Lawyer Regulation in Illinois
Regulation of the profession is assigned by the Illinois Supreme Court to the Attorney Registration and Disciplinary Commission, which is composed of seven members, three of whom are to be non-lawyers. The Commission has a staff and offices both in Springfield and Chicago. All lawyers in active practice pay annual fees with the exception of those over the age of 75.
The Rules of the Commission provide for inquiry boards and hearing boards and any action of the Commission is in the form of a recommendation to the Illinois Supreme Court for either suspension, disbarment or other penalties involved. The Commission does not award damages to injured parties for malpractice or other offenses. Attorneys are encouraged to make inquiries of the Commission in hypothetical or anonymous form concerning problems of professional conduct.
The Illinois Supreme Court has issued general rules of the Supreme Court beginning with Rule 61 through Rule 76 governing the conduct of Judges and issuing a code of judicial conduct in connection therewith.
Illinois does not have an integrated Bar and membership in Bar Associations is voluntary. The two leading associations in the State are the Illinois State Bar Association headquartered in Springfield and the Chicago Bar Association based in Chicago. Both Associations are voluntary in their membership. Both maintain committees on professional conduct or ethics but have no function in the disciplinary process, having been replaced in that regard by the Attorney Registration and Disciplinary Commission in 1973.
While we cite to the ISBA Advisory Opinions using the WESTLAW cite, the opinions are available free of charge on the Internet at www.ISBA.ORG. The ISBA website also provides an updated topical index and the most recent ISBA opinions. WESTLAW adds the opinions sometimes months after their promulgation and has no topical index.
The sole Disciplinary Agency in the State of Illinois is the Attorney Registration and Disciplinary Commission described in 0.2:200.
The Illinois Supreme Court has original and exclusive jurisdiction to regulate the admission and discipline of lawyers in Illinois. In re Ettinger, 538 N.E.2d 1152 (Ill. 1989).
The Court has delegated administrative responsibility for bar admissions to the Board of Admissions to the Bar, consisting of seven members of the bar appointed to staggered three-year terms by the Illinois Supreme Court. Ill. S. Ct. Rule 702. The Board verifies applicants’ educational qualifications, including receipt of a degree from an ABA-approved law school; certifies the character and fitness of applicants based upon investigation and report by the National Conference of Bar Examiners and certification by the Illinois Committee on Character and Fitness (also composed of members of the Illinois bar appointed by the Supreme Court); supervises the administration and grading of bar examinations; and certifies to the Supreme Court all applicants who qualify for admission to the bar. Ill.S.Ct.Rules 704, 708. Illinois allows reciprocal admission of lawyers licensed in states that accord Illinois lawyers reciprocal admission if the applicant has the educational background required by the Illinois rules and meets Illinois’ character and fitness requirements. Ill. S. Ct. Rule 705.
Registration and Discipline
Since 1973, administrative responsibility for the registration and discipline of Illinois lawyers has been delegated by the Illinois Supreme Court to the Attorney Registration and Disciplinary Commission, composed of seven members appointed by the Court. Ill. S. Ct. Rule 751. Four members of the Commission must be members of the Illinois bar, and the other three members must be nonlawyers. The Commissioners serve without compensation for three-year terms. The Commission acts as a board of directors for the disciplinary agency, setting general policy and overseeing its implementation.
With the approval of the Supreme Court, the Commission appoints an Administrator to serve as the principal executive officer of the agency. The Administrator has a staff of more than 110 employees, including about 35 lawyers, who oversee registration, conduct investigations, prosecute disciplinary cases, support volunteer board members, and produce publications and programs related to ethics and discipline.
Registration practices and disciplinary proceedings are governed by rules adopted by the Illinois Supreme Court. Ill. S. Ct. Rule 751 et seq. The Court has delegated to the Commission authority to make rules for disciplinary proceedings that are not inconsistent with the rules of the Court. Other duties of the Commission include appointment of the members of the Inquiry Board, the Hearing Board, and the Client Protection Panel, collection and administration of the disciplinary fund, and performance of an after-the-fact review of a representative sampling of investigative matters closed by the Administrator without referral to the Inquiry Board. Ill. S. Ct. Rule 751.
The Commission’s operations are funded by an annual fee assessed against lawyers registered to practice in Illinois, with certain designated exceptions. Ill. S. Ct. Rule 756. For most Illinois lawyers (those admitted to practice for three years or longer), the annual fee has been $140.00 since 1989. Ill. S. Ct. Rule 756.
Under the direction of the Commission, the Administrator and staff investigate complaints that lawyers registered to practice in Illinois have committed misconduct or are incapacitated from practicing law by reason of mental disorder or addiction. The Administrator has investigative subpoena power, and Illinois lawyers are required to cooperate in any investigation of themselves or another attorney. Ill. S. Ct. Rule 754(a) and (b)(1); Commission Rule 53. All investigations are confidential. Ill. S. Ct. Rule 766. For any investigation closed without the filing of a complaint, all records will be expunged three years after the file was closed, unless the expungement is deferred by defined circumstances, including the imposition of discipline or the pendency of a disciplinary case against the lawyer who was the subject of the investigative file. Ill. S. Ct. Rule 778.
When the Administrator’s investigation produces evidence of misconduct or an incapacitating condition, the matter may be referred to the Inquiry Board, composed of lawyers and nonlawyers appointed by the Commission who serve without compensation in panels of three (two lawyers and one nonlawyer). Ill. S. Ct. Rule 753; Commission Rule 101. The Inquiry Board also has subpoena power and may conduct or initiate its own investigation into any matter. Ill. S. Ct. Rules 753(a)(2), 754; Commission Rule 102. The Inquiry Board does not determine the merits of a charge or conduct adversary hearings and is not required to hear the testimony of witnesses. Commission Rule 102. A respondent attorney must be giving the opportunity to respond to charges in writing or, if that opportunity was not afforded, a chance to make an oral statement to the Inquiry panel or a designated member before a complaint may be voted. Commission Rule 105. For all matters before it, the Inquiry Board is to determine whether there is sufficient evidence for the filing of a complaint charging misconduct or a petition alleging incapacity with the Hearing Board, or if the investigation should be dismissed or closed. Ill. S. Ct. Rule 753(a)(3); Commission Rule 102. The majority of a panel constitutes a quorum, and the concurrence of a majority is necessary to a decision. Ill. S. Ct. Rule 753(a)(4).
In matters where the evidence shows minor misconduct and where the lawyer agrees to remedy any harm that was incurred by a client, the Inquiry Board may defer proceedings for up to a year and allow the attorney to continue practice under conditions, rather than vote a complaint. If the lawyer abides by all conditions during the deferral period, the matter will be dismissed and no public discipline will be sought. Commission Rule 108.
Hearing Board: Disciplinary Cases
Once the Inquiry Board has voted to approve the filing of formal charges, the Administrator files a complaint with the Clerk of the Commission, and the matter proceeds before the Hearing Board. Ill. S. Ct. Rule 753(b). The Hearing Board consists of lawyers and nonlawyers appointed by the Commission in a ratio of two lawyers to one nonlawyer. Ill. S. Ct. Rule 753(c). The Board sits in panels of three, with one of the lawyer members designated as Chair. Ill. S. Ct. Rule 753(c)(2). In contested proceedings, the panels hear evidence, make findings of fact, and recommend appropriate discipline. Ill. S. Ct. Rule 753(c)(3). When a consent disposition is proposed while a case pends before the Hearing Board, the Hearing panel reviews the proposed disposition prior to submission of the agreement to the Supreme Court. Ill. S. Ct. Rule 762(b)(1)(b).
Proceedings before the Hearing Board in disciplinary cases are open to the public once a complaint has been served on the respondent lawyer. Ill. S. Ct. Rule 766(a)(3).
A respondent is required to answer the complaint or otherwise plead within 21 days after personal service or 28 days after service by mail. Commission Rule 231. The answer must specifically admit or deny each allegation of the complaint. Any allegation which is not specifically denied will be deemed admitted unless the answer states the reason the respondent is unable to make a specific denial. Commission Rule 233; In re Smith, 659 N.E.2d 896 (Ill. 1995). If a respondent fails to answer, upon motion of the Administrator with notice to the respondent, all factual allegations and disciplinary charges alleged in a complaint will be deemed admitted. Commission Rule 236.
Proceedings before the Hearing Board, including discovery practice, are governed by the Illinois statutes and Supreme Court rules that govern civil practice, as modified by rules adopted by the Commission. Ill. S. Ct. Rule 753(c)(5). The major modification to discovery practice is that written interrogatories are allowed only upon a showing of good cause and with leave of the Chair. Commission Rule 251. In addition, both parties are required to file, within 28 days of service of the complaint, a report disclosing the name, address and telephone number of any and all persons who have knowledge of facts which are the subject of the proceeding, including the character or reputation of the respondent. Commission Rule 253. The reports should be amended as either party becomes aware of any additional witnesses, and neither party will be allowed to present testimony by any person not identified on a report. Commission Rule 253.
Prehearing and status conferences are conducted by the panel Chair in person or by phone to monitor discovery, simplify the issues, explore the prospect of a consent disposition, and set hearing dates. Commission Rule 260. Once set, a hearing date may be continued at the motion of either party only upon written motion supported by affidavit, and a second continuance will be granted to either party only under extraordinary circumstances. Some other engagement of counsel will not be considered to be an extraordinary circumstance. Commission Rule 272.
The Hearing Board operates under the rules of evidence that govern civil proceedings. Commission Rule 273. Allegations of misconduct must be proved by clear and convincing evidence. Ill. S. Ct. Rule 753(c)(6). The majority of a Hearing Board panel constitutes a quorum, and the concurrence of a majority is necessary to a decision. Ill. S. Ct. Rule 753(c)(2). It is the duty of a respondent to appear at hearing if his appearance is requested. Failure to appear without good cause may be considered as a separate ground for discipline. Ill. S. Ct. Rule 753(f).
Information about prior discipline of a respondent may not be divulged to the panel until after there has been a finding of misconduct, unless that information would be admissible for reasons other than to show a propensity to commit the misconduct charged. Ill. S. Ct. Rule 753(c)(5). If, after hearing the evidence, the panel finds that the respondent engaged in misconduct, the Chair will enter an order directing the Administrator to file within seven days copies of any orders or opinions imposing discipline on the respondent that are not already in evidence. The Administrator may also file a written argument regarding the effect to be given the prior discipline, and the respondent may file a written argument on that issue within 7 days after the filing of the prior disciplinary orders or opinions. Commission Rule 277.
After considering the evidence, arguments and any filings pursuant to Commission Rule 277, the Hearing Board files with the Clerk of the Commission a written report making findings of fact and recommending appropriate discipline if misconduct has been found. The Hearing Board may itself administer a reprimand; all other discipline may be imposed only by the Supreme Court. Ill. S. Ct. Rule 771.
Hearing Board: Disability Cases
If an attorney is adjudged in civil proceedings to be under a legal disability, in need of mental treatment, or subject to involuntary commitment because of mental condition, a petition is filed directly to the Illinois Supreme Court, which shall enter an order transferring the attorney to inactive status until further order of the Court. Ill. S. Ct. Rule 757. Absent such a judicial declaration, an Inquiry panel may determine that there is reason to believe that an attorney is incapacitated from continuing to practice law by reason of mental infirmity, mental disorder, or addiction to drugs or intoxicants. If a panel so determines, the Administrator files a petition with the Hearing Board requesting a hearing to determine whether the attorney should be transferred to inactive status pending removal of the disability or be permitted to continue to practice law subject to conditions. Ill. S. Ct. Rule 758. In any case brought pursuant to either of the above rules, the Supreme Court may order a mental or physical examination of the attorney to be conducted by a member of an independent panel of physicians designated by the Administrative Office of the Illinois Courts. Ill. S. Ct. Rule 760.
Proceedings before the Hearing and Review Boards under Rule 758 are confidential, as are proceedings on a motion for examination under Rule 760. Ill. S. Ct. Rule 766(a)(6) and (7). In other respects, proceedings before the Hearing and Review Board under Rule 758 are the same as in disciplinary cases. Ill. S. Ct. Rule 758(b). Whenever an attorney is transferred to inactive status under Rule 757 or 758, disciplinary proceedings pending against that attorney are stayed while the attorney is on inactive status. Ill. S. Ct. Rules 757, 758(d).
An attorney who has been transferred to inactive status pursuant to Rule 757 or 758 may petition for restoration to active status under Supreme Court Rule 759. If the Administrator consents or fails to file exceptions to such a petition, the Court may order the attorney restored to active status without a hearing. If the Administrator excepts, the matter will be referred to the Hearing Board, which conducts an evidentiary hearing and makes a recommendation to the Court. Ill. S. Ct. Rule 759(a) and (b). The Court may impose reasonable conditions, as warranted by the circumstances of the case, on the attorney’s restoration to practice if restoration is deemed appropriate. Ill. S. Ct. Rule 759(c).
The Administrator or the respondent may take issue with the recommendation of a Hearing panel in a disciplinary or disability case by filing a notice of exceptions with the Clerk of the Commission within 21 days of the filing of the Hearing Board report. Ill. S. Ct. Rule 753(d)(2), 758(b), 759(b). The notice of exceptions must specify the portions of the Hearing Board report excepted to and the relief sought from the Review Board. Commission Rule 301(c). The party that first files a notice of exceptions is deemed to be the appellant; the other party need not file a notice of exceptions to assert additional error and, instead, may raise any such additional error in his brief. Commission Rule 301(b).
The appellant’s brief must be filed within 35 days of the date the notice of exceptions was due; the appellee’s brief is due 35 days after the date the appellant’s brief was due to be filed; and the appellant may file a reply brief within 14 days of the due date of the appellee’s brief. Commission Rule 302(a). The Review Board may extend any due dates for the filing of briefs upon motion showing good cause supported by affidavit. Commission Rule 302(c). If the appellant fails to file a brief, the Review Board must strike the exceptions of the appellant, and the matter will proceed as if exceptions had not been filed. Commission Rule 302(j). Requirements for the form and content of briefs are essentially the same as in civil appeals. Commission Rule 302(f); compare Ill. S. Ct. Rule 341.
The Review Board is composed of nine lawyer members appointed by the Supreme Court. Review Board members serve three-year terms, or until a successor is appointed, and no member shall be appointed for more than three consecutive three-year terms. Ill. S. Ct. Rule 753(d)(1). One member of the Board is designated by the Supreme Court as Chairperson. The Review Board sits in panels of three, with the most senior member presiding. Ill. S. Ct. Rule 753(d)(1).
The Review Board may hear oral argument where requested by the parties, but no party may argue unless the party has filed a brief in accord with the rules. Commission Rule 304. After considering the briefs and argument, if allowed, the Review Board files a written report with the Clerk of the Commission. Commission Rule 311. The report must address the issues raised by the parties, but need not address any portion of the Hearing Board report with which the parties have not taken issue. Commission Rule 311. The Review Board may approve the findings of the Hearing Board, reject or modify findings which it determines are against the manifest weight of the evidence, make such additional findings as it determines are established by clear and convincing evidence, remand or dismiss the proceedings, and/or approve, reject or modify the Hearing Board’s recommendation of discipline. Ill. S. Ct. Rule 753(d)(3). Where discipline is recommended, the Review Board may itself impose a reprimand or recommend that any other discipline be imposed by the Court. Ill. S. Ct. Rule 771; Commission Rule 312.
Proceedings Before The Supreme Court In Discipline And Disability Cases
Either party may seek leave to except to the report and recommendation of the Review Board by filing a petition for leave to file exceptions with the Clerk of the Supreme Court within 35 days of service of the report on the party. Ill. S. Ct. Rule 753(e)(1). The petition must include: a request for leave to file exceptions; a statement of the date upon which the report of the Review Board was filed; a statement of the points relied upon for rejection of the Review Board’s report; a fair and accurate statement of the facts with appropriate references to the record; a short argument, including appropriate authorities, stating why review by the Supreme Court is warranted and why the Review Board’s report should be rejected; copies of the reports of the Hearing Board and Review Board; and proposed exceptions. Ill. S. Ct. Rule 753(e)(3). The opposing party need not, but may, file an answer to the petition within 14 days of the due date of the petition or any extended time allowed by the Court. The answer should conform generally to the form for the petition. Ill. S. Ct. Rule 753(e)(4).
If the Court determines to grant the petition, it may decide to consider the case after full briefing and oral argument, or it may immediately order a remand or enter a final order as recommended by the Review Board or as otherwise deemed appropriate by the Court without further briefing or argument by the parties. Ill. S. Ct. Rule 753(e)(5)(a). When the Court agrees to consider a case with full briefs and argument, the petition for leave to file exceptions will stand as the brief of the appellant and remaining briefs must be filed in accord with the rules governing appeals before the Supreme Court. Ill. S. Ct. Rule 753(e)(5)(a)(iii). If the Court denies the petition for leave to file exceptions, it may enter a final order as recommended by the Review Board or as otherwise deemed appropriate by the Court or remand the matter to the Hearing Board or Review Board. Ill. S. Ct. Rule 753(e)(5)(b).
If neither party files exceptions to a report of the Hearing Board or seeks leave to except to a report of the Review Board which recommends action by the Court, the recommendation of the Hearing Board or the Review Board is submitted to the Supreme Court by the Clerk of the Commission as an agreed matter, and within 21 days of the Clerk providing notice that the matter has been submitted, the Administrator must file with the Supreme Court a motion to approve and confirm the report of the Hearing Board or Review Board. Ill. S. Ct. Rules 753(d)(2), 753 (e)(6). No answer to the motion may be filed by the respondent unless ordered by the Court. Ill. S. Ct. Rule 753(d)(2), 753(e)(6). Upon consideration of a motion to approve and confirm, the Court may enter a final order of discipline as recommended by the Hearing Board or Review Board, or as otherwise deemed appropriate by the Court; order briefs and argument; or remand the matter to the Hearing Board or Review Board with directions. Ill. S. Ct. Rule 753(d)(2), 753(e)(6).
The mandate of the Supreme Court which renders the order of discipline final and effective will issue immediately in cases which the Court resolves by order allowing or denying a motion or petition, without full briefing and oral argument. In cases where the Court has accepted briefs and oral argument and resolves the case by full opinion, the mandate will issue once 21 days have passed if neither party has first filed a petition for rehearing, or 7 days after the entry of an order denying rehearing if a petition was filed. Ill. S. Ct. Rule 368.
Types Of Discipline
Discipline which may be imposed includes: disbarment, suspension for a specified period (where a lawyer may resume practice at the end of that period absent further order to the contrary), suspension until further order of the court (requiring reinstatement proceedings either at the conclusion of a specified period or without a period specified), probation in conjunction with either type of suspension, censure, and reprimand. Ill. S. Ct. Rule 771. A reprimand may be administered by the Hearing Board, the Review Board, or the Supreme Court. All other forms of discipline may be ordered only by the Supreme Court. Ill. S. Ct. Rule 771.
Disbarment. A lawyer who has been disbarred may apply for reinstatement 5 years after the effective date of the disbarment, except that a lawyer disbarred on consent may apply for reinstatement 3 years after the effective date of the discipline. Ill. S. Ct. Rule 767(a). A lawyer who has been suspended until further order of the court must comply with the same requirements for reinstatement as those that apply to disbarred lawyers, and may not apply for reinstatement until the period of suspension ordered by the court has expired. Ill. S. Ct. Rule 767(a).
Suspension. Consistent with the reinstatement requirements for disbarments, suspensions of specified duration tend to range up to 5 years and not beyond. Suspensions until further order, requiring reinstatement proceedings, are imposed when the respondent has been the subject of repeated disciplinary proceedings, In re Levin, 463 N.E.2d 715 (Ill. 1984); when the respondent has a condition such as addiction or mental illness which renders him unfit to practice, but is amenable to treatment so that the respondent should be required to show sufficient recovery before being allowed to resume practice, In re Bourgeois, 182 N.E.2d 651 (Ill. 1962); where the respondent has exhibited a failure to appreciate the seriousness of his misconduct or the absence of willingness or ability to meet professional standards of conduct in the future, In re Houdek, 497 N.E.2d 1169 (Ill. 1986); or where the seriousness of the violations warrants. In re Rinella, 677 N.E.2d 909 (Ill. 1997).
Suspensions Stayed by Probation. Probation was first imposed as a disciplinary sanction in Illinois in the 1981 case of In re Driscoll, 423 N.E.2d 873 (Ill. 1981). As an experiment, the Court determined to order that a 6-month actual suspension imposed upon a lawyer who had converted client settlement funds while actively alcoholic, but who had sought treatment and had abstained from alcohol for 2 ½ years before the discipline hearing, would be followed by a period of probation. During that period, the respondent would be required to comply with a reasonable program of rehabilitation and make regular reports allowing the Commission to confirm his continuing sobriety. In 1983, the Court adopted Rule 772, codifying the availability of probation in cases where a lawyer suffers from a disability which is under control to the extent that the lawyer can demonstrate that he can capably perform legal services, that his continued practice of law will not cause the profession or the courts to fall into disrepute, that he is unlikely to harm the public during a period of rehabilitation, and that the necessary conditions of probation can be adequately supervised.
Until 1993, probation was available only under the terms of Rule 772, where the lawyer‘s misconduct was causally related to a disability. The Court then determined in In re Jordan, 623 N.E.2d 1372 (Ill. 1993), that probation can be imposed in nondisability cases where a lawyer’s right to practice law needs to be monitored or limited rather than suspended or revoked. Since Jordan, probation has been imposed in several cases where the misconduct warranted requiring the lawyer to modify office practices and monitoring of the effectiveness of the modifications to assure more accurate record keeping, timely handling of client matters and better communications with clients. See, e.g., In re Smith, 659 N.E.2d 896 (Ill. 1995).
Typical conditions of probation include requirements that the respondent lawyer continue in treatment and authorize reports to the Administrator by treating professionals; that the respondent participate in law office management mentoring programs; that the respondent undertake specified training in ethics or office management skills; and that the respondent make restitution.
Duties Associated With Discipline: Ill. S. Ct. Rule 764
Notification Requirements. Supreme Court Rule 764 imposes various duties upon lawyers who are disbarred or suspended for six months or longer. Upon entry of the final order of discipline, the lawyer is prohibited from maintaining a presence in or occupying an office where the practice of law is conducted, and the lawyer must take whatever steps are necessary to remove any designation of the disciplined attorney as lawyer, law clerk, legal assistant or similar title. Ill. S. Ct. Rule 764(b). Within 21 days after entry of the final order of discipline, the disciplined attorney must provide notice in writing, by certified mail, to all clients whom the attorney represented on the date discipline was imposed of the following: 1) the action taken by the Supreme Court; 2) that the disciplined attorney may not continue to represent the client during the period of discipline; 3) that the client has the right to retain another attorney; and 4) that the client’s files, documents and records will be made available to the client at a designated place. Ill. S. Ct. Rule 764(c). The disciplined attorney must also provide notice of the discipline to any court in which the attorney has pending matters, and move to withdraw in all pending cases. Ill. S. Ct. Rule 764(e). Written notice of the discipline must also be sent by certified mail to all attorneys with whom the disciplined attorney was associated in the practice of law on the date discipline was imposed, all opposing counsel or unrepresented opposing parties in any matter in which the disciplined attorney represented a client on the date discipline was imposed, all other jurisdictions in which the lawyer is licensed to practice law, and all governmental agencies before which the disciplined lawyer is entitled to represent a person. Ill. S. Ct. Rule 764(f).
Affidavits Verifying Compliance. Within 21 days of the discipline order, the disciplined attorney must file with the Clerk of the Supreme Court and serve upon the Administrator a list of all clients represented as of the date of the discipline order, and must serve on the Administrator copies of the notices sent to those clients as required by the Rule. Ill. S. Ct. Rule 764(d). Within 35 days of the date of discipline, the attorney must file an affidavit with the Clerk of the Supreme Court stating all action the lawyer has taken to comply with the order of discipline and the provisions of Rule 764, explaining what arrangements have been made to maintain the files and records of the disciplined attorney’s practice as required by that rule, providing an address and telephone number at which subsequent communications may be directed to the disciplined lawyer, and identifying all other jurisdictions to which the disciplined lawyer has been admitted to practice. Ill. S. Ct. Rule 764(g). All other lawyers who were associated in practice with the disciplined attorney on the date discipline was imposed are also required to take whatever action is necessary to assure that the disciplined attorney has removed all indicia suggesting his or her status as lawyer, and that the disciplined attorney has provided the notices required by the Rule and made the required arrangements for returning and maintaining files and records. Within 35 days of the date of the order of discipline, those other lawyers must also file with the Clerk of the Supreme Court an affidavit demonstrating their compliance with those obligations. Ill. S. Ct. Rule 764.
Compensation for Legal Work Performed Before Discipline Imposed. Rule 764 also restricts the compensation which a disciplined attorney may receive for legal services performed prior to the imposition of discipline or for the sale or transfer of any assets of the disciplined attorney’s prior practice or law office. The disciplined attorney may receive compensation for legal work only on a quantum meruit basis, may not accept any payments based upon the referral of cases or the good will of the former practice, and must obtain prior court approval for any compensation received. Ill. S. Ct. Rule 764(h)(1). The disciplined attorney must petition the Illinois Supreme Court for advance approval of any proposed sale, assignment, or transfer of any aspect of the former law office. Ill. S. Ct. Rule 764(h)(2).
In addition to the duties imposed by Rule 764, a disciplined attorney is required to pay costs associated with the disciplinary proceedings. Costs include witness fees; fees for duplication of documents; bank charges for producing records; travel expenses of witnesses, the Administrator and staff, and the members of the Inquiry Board, the Hearing Board and the Review Board; expenses incurred in the physical or mental examination of a respondent lawyer; expert witness fees; and court reporter expenses. Ill. S. Ct. Rule 773.
Conviction of Crime Involving Fraud or Moral Turpitude: Ill. S. Ct. Rule 761. Whenever a lawyer is convicted of a crime involving fraud or moral turpitude, the Administrator is required to file a petition asking the Supreme Court to issue a rule directing the attorney to show cause why he should not be suspended from the practice of law until further order of the court. A certified copy of the conviction must be attached to the petition, and the copy is deemed prima facie evidence of the conviction. After considering the petition and the response, if any, the Court may enter an order effective immediately suspending the attorney from the practice of law. Ill. S. Ct. Rule 761(b). A complaint will then be filed by the Administrator with the Hearing Board, and a hearing will be held to determine whether the crime warrants discipline, and, if so, the extent thereof. Ill. S. Ct. Rule 761(d). In any hearing conducted pursuant to Rule 761, proof of the judgment of conviction is conclusive of the attorney’s guilt of the crime charged. Ill. S. Ct. Rule 761(f). If the attorney has appealed the conviction, the proceedings before the Hearing Board will be stayed until the appeal is resolved unless the attorney requests otherwise. Ill. S. Ct. Rule 761(d)(2).
Misconduct Involving Fraud or Moral Turpitude or Threatening Irreparable Injury: Ill. S. Ct. Rule 774. Interim suspension may also be sought before conviction where an attorney has been charged by indictment or information with a crime involving moral turpitude or an offense which reflects adversely on the attorney’s fitness to practice law and where there is persuasive evidence to support the charge. Ill. S. Ct. Rule 774(a)(1). In addition, interim suspension may be ordered where a complaint has been voted by the Inquiry Board alleging that the attorney has committed misconduct which involves fraud or moral turpitude or threatens irreparable injury to the public, the attorney’s clients, or the orderly administration of justice, and there appears to be persuasive evidence to support the charge. Ill. S. Ct. Rule 774(a)(2). In such cases, the Administrator must file a petition for rule to show cause, supported by affidavit or other evidence. Ill. S. Ct. Rule 774(b). The rule requires that the petition be served personally upon the respondent, but if the respondent is unavailable or his whereabouts are unknown, the petition may be served by regular mail to the address at which the respondent last registered. Ill. S. Ct. Rule 774(b). An order of interim suspension may include conditions deemed necessary to protect the interests of the public and the orderly administration of justice, including notice of the suspension to the respondent’s clients, audit of the respondent’s books, records and accounts, appointment of a trustee to manage the respondent’s affairs, and physical or mental examination of the respondent. Ill. S. Ct. Rule 774(c).
Consent Discipline: Ill. S. Ct. Rule 762
Disbarment on Consent: Ill. S. Ct. Rule 762(a). Disbarment on consent is initiated by the filing of a motion by the respondent lawyer with the Clerk of the Supreme Court asking to strike his name from the roll of attorneys admitted to practice in Illinois. The Clerk must serve a copy of the motion upon the Administrator, who, within 21 days thereafter, must file with the Court and serve upon the respondent a statement of charges setting forth a description of the evidence that would be presented if the cause proceeded to hearing and the findings of misconduct which that evidence would support. Ill. S. Ct. Rule 762(a).
Within 14 days after the statement of charges has been filed, the attorney respondent must file with the Court an affidavit stating that he has received a copy of the statement of charges, and that if the cause proceeded to hearing, the Administrator would present the evidence described in the statement and the evidence would clearly and convincingly establish the misconduct described in the statement. In cases where the charges are based upon a criminal conviction, the affidavit may state that the judgment of conviction would be offered into evidence and would constitute conclusive evidence of the respondent’s guilt of the crime for purposes of disciplinary proceedings. In either case, the affidavit must also state that the motion is freely and voluntarily made and that the respondent understands the nature and consequences of the motion. Ill. S. Ct. Rule 762(a). If the respondent fails to file the affidavit or the affidavit does not contain the statements required by the rule, the Court may deny the motion and the matter will proceed through hearing and review. Ill. S. Ct. Rule 762(a).
If the Court allows a motion for disbarment on consent, the facts and charges of misconduct described in the statement of charges will be deemed conclusive for any future disciplinary proceedings regarding that attorney, including any reinstatement proceedings. Ill. S. Ct. Rule 762(a). Illinois does not provide for resignations with charges pending.
Other Consent Discipline: Ill. S. Ct. Rule 762(b). Discipline other than disbarment may be imposed by consent under the provisions of Rule 762(b). At any time while a matter is pending before the Inquiry Board, the Hearing Board, the Review Board or the Court, the Administrator and respondent may seek to submit the matter to the Court on consent by filing a petition, to be prepared by the Administrator, setting forth the misconduct and a recommendation of discipline. Ill. S. Ct. Rule 762(b)(1) and (b)(2). The respondent must execute an affidavit, to be attached to the petition, averring that he has read the petition, that the assertions in the petition are true and complete, that he joins in the petition freely and voluntarily, and that he understands the nature and consequences of the petition. The affidavit may also recite other facts which the attorney wishes to bring to the attention of the Court in mitigation. Ill. S. Ct. Rule 762(b)(3). If the matter is pending before one of the Boards at the time the petition is proposed, the Board must approve the filing of the petition with the Court. Ill. S. Ct. Rule 762(b)(1)(b).
The Court may allow the petition and impose the recommended discipline or deny the petition. If the petition is denied, the proceeding will resume as if no petition had been submitted, and no admission in the petition may be used against the respondent. Ill. S. Ct. Rule 762(b)(5). If proceedings resume before the Inquiry or Hearing Board, the matter will be assigned to a different panel of the Board. Ill. S. Ct. Rule 762(b)(5).
Reciprocal Discipline: Ill. S. Ct. Rule 763.
If a lawyer who is licensed in both Illinois and another state is disciplined in that other state, the lawyer may be subjected to the same or comparable discipline in Illinois upon proof of the order of the foreign state imposing discipline. Ill. S. Ct. Rule 763. Proceedings under this rule are commenced by the Administrator filing a petition to which a certified copy of the order of the other state is attached. Within 21 days of service of the petition upon him, the respondent may request a hearing. If that request is allowed, the respondent will be heard only on the following issues: 1) whether or not the order of the foreign state was entered; 2) whether it applies to the attorney; 3) whether it remains in full force and effect; 4) whether the procedure in the foreign state that resulted in the discipline order was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process of law; 5) whether the conduct of the attorney warrants substantially less discipline in Illinois. Ill. S. Ct. Rule 763. Rule 763 does not limit the Administrator to proceeding under its terms. The Administrator may instead choose to bring an independent disciplinary proceeding based upon the conduct that led to the discipline in the other state. If an independent case is instituted, the discipline imposed in Illinois will not be limited by the discipline that was imposed in the other state. Ill. S. Ct. Rule 763.
Reinstatement: Ill. S. Ct. Rule 767
A lawyer who has been disbarred or suspended until further order of the court may petition for reinstatement after the passage of five years for lawyers disbarred involuntarily, three years for lawyers disbarred on consent, or the period of suspension ordered by the court in suspension cases. Ill. S. Ct. Rule 767(a). The petition may be presented to the Administrator 120 days prior to the time it can be filed with the Clerk. Ill. S. Ct. Rule 767(b).
The petition must include, inter alia, information about the discipline, including whether it involved misappropriation of or failure to account for funds held by the lawyer and details of any restitution paid or accounting made; details of every residence and every employment situation held by the petitioner during the period of discipline; full financial information for all times since the discipline was imposed, including copies of tax returns and other records and executed releases to allow the Administrator to obtain originals of any of the records; detailed information about every account, safe deposit box, or loan the petitioner had with any financial institution during the period of discipline, including executed releases allowing the Administrator to obtain from the financial institutions any records concerning accounts or loans; a listing of every civil or criminal court proceeding to which the petitioner was a party or in which the petitioner claimed some interest during the period of discipline; information about any treatment the petitioner sought or obtained for mental or emotional disorders or addictions during the period of discipline; information about the petitioner’s compliance with the Rule 764 requirements of notices to clients, removal of indicia showing the petitioner to have been a lawyer, maintenance of records and other duties imposed in conjunction with the discipline; and a statement of all material facts upon which the petitioner relies to establish fitness to resume the practice of law. Commission Rule 402. The petition must be accompanied by a receipt verifying payment of any costs assessed in association with discipline proceedings, as well as a $500 deposit toward payment of the costs of the reinstatement proceeding. Ill. S. Ct. Rules 767(c), 773(d).
The Administrator is required to give notice of the petition to the chief judge of each circuit in which the petitioner maintained a law office or engaged in the practice of law, and the president of each local or county bar association in each county in which the petitioner practiced. Ill. S. Ct. Rule 767(d). The Administrator is required to conduct an investigation into any matter raised by the petition, and may file objections to the petition within a time specified by the hearing panel to which the petition is referred. Commission Rule 414. At the hearing on the petition, the petitioner has the burden of proving by clear and convincing evidence his rehabilitation, present good character and current knowledge of the law. In re Parker, 595 N.E.2d 549 (Ill. 1992); Ill. S. Ct. Rule 767(f). Factors to be considered are: 1) the nature of the misconduct for which the petitioner was disciplined; 2) the maturity and experience of the petitioner at the time the discipline was imposed; 3) whether the petitioner recognizes the nature and seriousness of the misconduct; 4) when applicable, whether the petitioner has made restitution; 5) the petitioner’s conduct since discipline was imposed; and 6) the petitioner’s candor and forthrightness in presenting evidence in support of the petition. Ill. S. Ct. Rule 767(f).
Hearing and review procedures are the same for reinstatement cases as those prescribed in Rule 753 for discipline cases. Ill. S. Ct. Rule 767(h). No renewed petition for reinstatement may be filed before two years after a former petition has been denied or before one year after a former petition has been withdrawn. Ill.S.Ct.Rule 767(a).
[The discussion of this topic has not yet been written.]
Illinois Courts have the power to impose penalties upon attorneys whose conduct violate the IRPC in proceedings before them. These precepts are set forth particularly in IRPC 3.3, but also in all of IRPC 3.1 through 3.8. Other parts of the IRPC may be relevant to the imposition of judicial penalties in proceedings before a tribunal, as, for example, IRPC 1.2.(f), (g) and (h).
Civil liability of lawyers is determined under standards of malpractice not dissimilar from those in other states. However, the status of the IRPC as a source of law in such regard is undetermined by the IRPC. The extensive language in the "Scope" section of the MR disclaiming any substantive legal status for the IRPC was omitted in Illinois, leaving the subject open for judicial elaboration on a case by case basis. Thus, Illinois states no absolute rejection of the IRPC and their interpretation as a basis for civil liability and it is equally clear is that there is no automatic assumption that the IRPC define the liability of lawyers.
There are three federal districts in Illinois: the Northern District consisting of an Eastern Division located in Chicago, a Western Division at Rockford; the Southern District with courthouses at East St. Louis and Benton and the Central District with courts at Peoria, Danville, Rock Island, and Springfield. Chicago is also the seat of the 7th Circuit Court of Appeals.
The Rules of Professional Conduct of the United States District Court for the Northern District of Illinois adopt the IRPC language in the Preamble and Terminology. They also include a portion of the ABA "Scope" section, slightly modified in the first and last paragraphs thereof, but omitting entirely three significant paragraphs: one beginning "Violation of a Rule should not give rise to a cause of action . . .", one disavowing any effect of the Rules on the attorney-client and work product privileges, and one asserting that a lawyer's exercise of discretion not to disclose information—when Rule 1.6 would permit disclosure—should not be reviewable. These omissions clearly state the District Court's rejection of the ABA position that the Rules do not determine civil liability—thus the District Court for the Northern District parallels the neutral position of the IRPC themselves on this issue.
The Rules of The Southern District of Illinois have detailed rules regarding disciplinary procedures under its Rule 29. Disciplinary Rule IV of Rule 29 refers to "the Rules of Professional Conduct adopted by this Court", and makes clear that the Rules referred to are the IRPC, stated as follows:
The Rules of Professional Conduct adopted by this Court are the Rules of Professional Conduct adopted by the Supreme Court of Illinois as amended from time to time, except as otherwise provided by specific Rule of this Court.
The Central District of Illinois provides in Rule 83.6(D), as follows:
The Rules of Professional Conduct adopted by this court are the Rules of Professional Conduct adopted by the Supreme Court of Illinois, as amended from time to time by that court, except as provided by specific rule of this court after consideration of comments by representatives of bar associations within the state.
The Standards for Professional Conduct Within the Seventh Federal Judicial Circuit adopted December 14, 1992 are sui generis. They are divided into: a Preamble; Lawyers' Duties to Other Counsel; Lawyers' Duties to the Court; and Courts' Duties to Lawyers. The Rules deal largely, although not exclusively, with matters of professional courtesy.
0.3:300 Organization of This Library and the Model Rules
This Library will follow the outline of the State Legal Ethics Project, which, in turn, relies heavily on the MR outline. However, the State Legal Ethics Project goes beyond the MR, to include other precepts and standards governing lawyer conduct generally.
The following abbreviations are used throughout the narrative:
• The American Bar Association is referred to as “ABA”
• The current Illinois Rules of Professional Conduct (adopted February 8, 1990, effective August 1, 1990) are referred to as “IRPC”
• The old Illinois Code of Professional Responsibility (adopted June 3, 1980, effective July 1, 1980 and suspended August 1, 1990) is referred to as “Illinois Code”
• The ABA Model Rules are referred to as “MR.”
• The ABA Model Code of Professional Responsibility is referred to as “ABA Code”
• Since the ABA Code and the Illinois Code include Canons, these are referred to as “ABA Code Canon” and “Illinois Code Canon”
• The ABA Code also included Ethical Considerations, which are referred to as “ABA Code EC”
• Bar Association Opinions are referred to by a general abbreviation: “ABA,” “CBA” (Chicago Bar Association), or “ISBA” (Illinois State Bar Association) ISBA Advisory Opinions are currently available on the Internet at Illinois State Bar Association http://www.Illinoisbar.org/CourtRules/Article8/home.html
• The Illinois Attorney Registration and Disciplinary Commission is referred to as “ARDC”
• The disciplinary rules under the Illinois Code are referred to as “DR.”
0.4:400 Abbreviations, References and Terminology
The IRPC have adopted MR terminology with minor differences as follows:
"Belief" or "believes" denotes that the person involved actually supposed the fact in question to be true. A person's belief may be inferred from circumstances.
The MR language in substance is retained, but substitutes "Disclose" or "Disclosure" for "Consult" or "Consultation." See 0.4:500. "Consult" or "Consultation" are not defined terms in the IRPC.
"Firm" or "law firm" denotes a lawyer or lawyers engaged in the private practice of law in a partnership, professional corporation, or other entity or in the legal department of a corporation, legal services organization or other entity. A District Court in Illinois has held that law firms which announce on their letterhead that they are “associated” become a single firm for conflict of interest purposes. Mustang Enters. v. Plug-In Storage Sys., 874 F. Supp. 881 (N.D. Ill. 1995).
"Fraud" or "fraudulent" denotes conduct having a purpose to deceive and not merely negligent misrepresentation or failure to apprise another of relevant information.
"Knowingly", "known" or "knows" denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances.
"Partner" denotes a lawyer who is a member of a partnership, or shareholder or officer in a law firm organized as a professional corporation.
"Reasonable" or "reasonably" when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer.
"Reasonable belief" or "reasonably believes" when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.
"Substantial" when used in reference to degree or extent denotes a material matter of clear and weighty importance.
0.4:500 Additional Definitions in Illinois
The Illinois Rules include the following defined terms which do not appear in the Model Rules:
"Confidence" denotes information protected by the lawyer-client privilege under applicable law.
"Contingent fee agreement" denotes an agreement for the provision of legal services by a lawyer under which the amount of the lawyer's compensation is contingent in whole or in part upon the successful completion of the subject matter of the agreement, regardless of whether the fee is established by formula or is a fixed amount.
"Disclose" or "disclosure" (as noted above) denotes communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.
"Person" denotes natural persons, partnerships, business corporations, not-for-profit corporations, public and quasi public corporations, municipal corporations, State and Federal governmental bodies and agencies, or any other type of lawfully existing entity.
"Reasonably should know" when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question.
"Secret" denotes information gained in the professional relationship, that the client has requested be held inviolate or the revelation of which would be embarrassing to or would likely be detrimental to the client.
The above language defines as "disclose" or "disclosure" that which in the MR is referred to as "consult" or "consultation". The definitions of "firm" or "law firm" differ slightly from the MR language.
The MR have no definition of "contingent fee agreement", "confidence", "person", or "secret".
Neither the MR nor the IRPC versions define "lawyer" or "client".
Other portions of the IRPC contain definitions: e.g., the Preamble states:
'zealously' does not mean mindlessly or unfairly or oppressively. Rather, it is the duty of all lawyers to seek resolution of disputes at the least cost in time, expense and trauma to all parties and to the courts.
IRPC 7.3: Direct Contact With Prospective Clients prohibits in general solicitation of employment. The word "solicit" is defined as:
contact with a person other than a lawyer in person, by telephone or telegraph, by letter or other writing, or by other communication directed to a specific recipient.
In IRPC 8.5: Disciplinary Authority; Choice of Law a definition is inserted in subparagraph (b)(2)(ii) which states that the "jurisdiction in which the lawyer principally practices" refers to the jurisdiction in which the lawyer's principal office is located; the provisions of the subparagraph relating to the "predominant effect" of "particular conduct" shall apply solely to circumstances where there is a single jurisdiction, in which the lawyer is licensed, which experiences that "predominant effect."