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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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

I. CLIENT-LAWYER RELATIONSHIP

1.1   Rule 1.1 Competence

1.1:100   Comparative Analysis of Illinois Rule

Primary Illinois References: IL Rule 1.1
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary:

Illinois, in its Rule 1.1(a) adopts the language of ABA MR 1.1; but IRPC 1.1(b) and (c) are added.

IRPC 1.1(b) states:

A lawyer shall not represent a client in a legal matter in which the lawyer knows or reasonably should know that the lawyer is not competent to provide representation, without the association of another lawyer who is competent to provide such representation.

IRPC 1.1(b) is substantially equivalent to the Illinois Code 6-101(a)(1) which read:

[A lawyer shall not:]

(2) handle a legal matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it.

This Illinois Code Rule was identical with the ABA Code language.

IRPC 1.1(c) states:

After accepting employment on behalf of a client, a lawyer shall not thereafter delegate to another lawyer in the lawyer's firm the responsibility for performing or completing that employment, without the client's consent.

IRPC 1.1(c) is substantially equivalent to the Illinois Code 2-109(b), which provision was absent from the ABA Code.

1.1:101      Model Rule Comparison

IRPC Rule 1.1(a) is identical to MR 1.1; but IRPC 1.1(b) and (c) are not in the MR Rule.

1.1:102      Model Code Comparison

The ABA Code contained the following language in Rule 6-101(A):

[A lawyer shall not]

(2) handle a legal matter without preparation adequate in the circumstances; or

(3) neglect a legal matter entrusted to him.

1.1:200   Disciplinary Standard of Competence

Primary Illinois References: IL Rule 1.1
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: ABA/BNA § 31:201, ALI-LGL § 28, Wolfram § 5.1

The IRPC, in Rule 1.1 (Competence), contain more detailed mandates that the ABA text, and raise, at the very start of the Rules, the question of the Rules as sources of substantive law, particularly in actions for malpractice. Illinois, in this regard, has not adopted the ABA disavowal of substantive effect, contained in the "Scope" section of the ABA text, and reading as follows:

Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. (emphasis supplied)

The ABA "Scope" just quoted was deliberately omitted from the IRPC, as it would render language such as that in MR 1.1 virtually meaningless, if the aggrieved client must look for other support in the event of a professional failure. The status of the Illinois Code, as a portion of substantive law, and hence the rules which replaced the Illinois Code, was clarified, at least in part, by the Illinois Supreme Court in In re Vrdolyak, 560 N.E.2d 840 (Ill. 1990). In this case the Court stated: "As an exercise of this Court's inherent power over the bar and the rules of court, the Code operates with the force of law."

Vrdolyak, however, was not a malpractice case; it involved a Chicago alderman who, as a lawyer, represented plaintiffs in employment law cases against the City: the Court held this to be an impermissible conflict of interest, and censured him.

Since Vrdolyak explicitly rejected prior rulings on the impact of ethical violations, the precise state of the IRPC as a body of law which the client—or any other party—has standing to invoke is still, in many areas, uncertain.

However, the past learning, stating that the rules (of the Illinois Code or IRPC) are only suggestive and advisory, appears to have been rejected. Indeed, in Mayol v. Summers, Watson & Kimpel, 585 N.E.2d 1176 (Ill. App. 4th Dist. 1992), the court held that the trial judge may instruct the jury about ethics rules.

Illinois Attorney Registration and Disciplinary Commission Hearing Board, Review Board, and Illinois Supreme Court opinions showing the overlap between Rule 1.1, 1.3, and 3.2 include: In re Carlson, 93 CH 643; In re Hourigan, 93 CH 446; In re Lawrence, 95 CH 645.

1.1:300   Malpractice Liability

Primary Illinois References: IL Rule 1.1
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: ABA/BNA § 301:1, ALI-LGL § 71-76 , Wolfram § 5.6

1.1:310      Relevance of Ethics Codes in Malpractice Actions

The IRPC, although based on the MR text, omit entirely the prefatory section of the MR text, entitled "Scope", and by that omission, contain no language disavowing the impact of the IRPC on issues of civil liability. The IRPC do not, however, explicitly assert their authority over the applicability of its Rules to such questions, and thereby leave the issue for determination by the courts as issues arise. To date no judicial determination has affirmed the specific application of the Rules to civil liability, and there is case law asserting an older doctrine holding that the Illinois Code was irrelevant to such problems. Nagy v. Beckley, 578 N.E.2d 1134 (Ill. App. 1st Dist. 1991). However the only Illinois Supreme Court decision touching this issue is In re Vrdolyak, 560 N.E.2d 840 (Ill. 1990). Vrdolyak does not directly involve a liability exposure—the case relates to a disciplinary action against an alderman who accepted engagements involving possible municipal liability—but in the course of affirming the applicability of the Illinois Code, the Court stated:

As an exercise of this court's inherent power over the bar and as rules of court, the Code operates with the force of law. Accordingly, the Code, as a binding body of disciplinary rules, has, sub silentio, overruled prior judicial decisions which conflict with its mandates and prescriptions.

The quoted language is a rejection of the applicability of a prior Supreme Court case, In re Becker, 158 N.E.2d 753 (Ill. 1959). In rejecting Becker as a guide, the Court traced the history of Illinois ethics from the stage when ". . . this court had not adopted any comprehensive scheme for regulating attorney conduct." The Court emphasized, by the above quoted language, that the Code was a decisive step, casting aside any prior decisions inconsistent with it. Since Vrdolyak, the Court has had no opportunity to enlarge or clarify the scope of its holding: but it would appear that the extreme statement of the ABA "Scope" section would be inconsistent.

1.1:320      Duty to Client

Illinois does not differ from other jurisdictions in the basic definitions of the lawyer’s duties to the client of care and skill, as set forth hereinafter. It should be noted however that the IRPC do not include any comment or annotations (except for IRPC 8.5) and hence do not include the statement in the MR Comment to MR 1.1 “A newly admitted lawyer can be as competent as a practitioner with long experience.”

Illinois law distinguishes between negligence and mere errors of judgment. The question of whether an attorney has exercised a reasonable degree of care and skill is one of fact and in Illinois the attorney’s conduct will be measured through expert testimony. However, in the case of gross negligence, such as permitting a statute of limitations to run, expert testimony is not required. Schmidt v. Hinshaw, Culbertson, Moelmann, Hoban & Fuller, 394 N.E.2d 559 (Ill. App. 1st Dist. 1979). The lawyer has a duty to foresee what a reasonably prudent person would predict would be likely to happen. Pacelli v. Kloppenberg, 382 N.E.2d 570 (Ill. App. 1st Dist. 1978).

1.1:330      Standard of Care

Illinois treats the standard of care much as that set forth in the Restatement of the Law Governing Lawyers (Sec. 74 Tentative Draft No. 8) “A lawyer who owes a duty of care must exercise the competence and diligence normally exercised by lawyers in similar circumstances, unless the lawyer represents that the lawyer will exercise greater competence or diligence.”

The “competence and diligence” referred to above is necessarily defined principally through actions for attorney malpractice. Although disciplinary actions against an attorney with regard to this issue are conceivable, none have been recorded in Illinois. The issue is further rendered indefinite because of the need in most cases for expert testimony on the question. As stated in House v. Maddox, 360 N.E.2d 580 (Ill App. 1st Dist. 1977) “The law is well settled that an attorney is liable to his client for damages only when he fails to exercise a reasonable degree of care and skill, and the law distinguishes between errors of negligence and those of mistaken judgment. [Citations.] The question of whether an attorney has exercised a reasonable degree of care and skill in representing and advising his client is one of fact [citations], and in Illinois the standard of care against which professional actions are measured has been based on expert testimony. [Citations.]” See also Brainerd v. Kates, 386 N.E.2d 586 (Ill. App. 1st Dist. 1979).

1.1:335      Requirement of Expert Testimony

[The discussion of this topic has not yet been written.]

1.1:340      Causation and Damages

A lawyer is liable only for injury of which the lawyer’s breach of a duty of due care was a legal cause, as determined under the generally applicable principles of causation and damages. Restatement of the Law: The Law Governing Lawyers (Sec. 75 Tentative Draft No. 8). It should be noted again that although some Illinois cases repudiate the notion that violation of the rules of conduct do not give rise to civil liability. For example, it has been held that the representation of conflicting interests does not constitute a ground for recovery in malpractice. See Schmidt v. Hinshaw, Culbertson, Moelmann, Hoban & Fuller, 394 N.E.2d 559 (Ill. App. 1st Dist. 1979). Such matters have been amended in some cases such as the citations to the Illinois Code in Mayol v. Summers, Watson & Kimpel, 585 N.E.2d 1176 (Ill. App. 4th Dist. 1992) where the court stated: “Juries in legal malpractice suits may properly consider standards of professional ethics pertaining to attorneys because such suits involve allegations of conduct that does not conform to minimum professional standards. (See Rogers v. Robson, Masters, Ryan, Brumund & Belom, 392 N.E.2d 1365, 1371 (Ill. App. 3rd Dist. 1979), aff’d 407 N.E.2d 47 (Ill. 1980). Furthermore, it is well established that jury instructions may quote portions of statutes and ordinances where (1) the jury has heard evidence that defendant has violated the quoted portions of the statute or ordinance, and (2) plaintiff alleges the violation breached a duty owed to him by defendant. (See Harris v. Day, 451 N.E.2d 262, 267-68 (Ill. App. 4th Dist. 1983); Illinois Pattern Jury Instructions, Civil No. 60.01 (3d ed. 1991). Like most statutes and ordinances, attorney disciplinary rules establish minimum standards of conduct and are intended to protect the general public. For these reasons, we hold that jury instructions may quote attorney disciplinary rules in legal malpractice cases to the same extent as they may quote statutes and ordinances in instructions in other types of negligence cases.”

1.1:350      Waiver of Prospective Liability [see 1.8:910]

An agreement prospectively limiting a lawyer’s liability to a client is unenforceable.

1.1:360      Settlement of Client's Malpractice Claim [see 1.8:920]

An agreement purporting to settle a claim by a client or former client against a lawyer is voidable by the client or former client if the client or former client was not adequately informed and was not independently represented, or if the client or former client was subjected to improper pressure by the lawyer.

1.1:370      Defenses to Malpractice Claim

[The discussion of this topic has not yet been written.]

1.1:380      Liability to Client for Breach of Contract, Breach of Fiduciary Duty, and Other Liabilities

[The discussion of this topic has not yet been written.]

1.1:390      Liability When Non-Lawyer Would Be Liable

[The discussion of this topic has not yet been written.]

1.1:400   Liability to Certain Non-Clients

Primary Illinois References: IL Rule 1.1
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: ABA/BNA § 71:1101, ALI-LGL § 73, Wolfram § 5.6

1.1:410      Duty of Care to Certain Non-Clients

A lawyer is not liable to a non-client:

(1)   In addition to other absolute or conditional privileges provided by the law of defamation, a lawyer is absolutely privileged under the law if defamation to publish defamatory matter concerning a non-client in communications preliminary to a reasonably anticipated proceeding before a tribunal, or in the institution or during the course and as a part of such a proceeding, in which the lawyer participates as counsel, if the matter is published to a person who will be involved in the proceeding and has some relation to the proceeding.

(2)   A lawyer representing a client in a civil proceeding, or procuring the institution of criminal proceedings by a client, is not liable to a non-client for wrongful use of civil proceedings or for malicious prosecution if the lawyer has probable cause for acting, or if the lawyer acts primarily to help the client obtain a proper adjudication of the client’s claim.

(3)   A lawyer who advises or assists a client to make or break a contract, to enter or dissolve a legal relationship, or to enter or not enter a contractual relation, is not liable to a non-client for interference with contract or with prospective contractual relations or with a legal relationship, if the lawyer acts to advance the client’s objectives without using wrongful means. Restatement of the Law: The Law Governing Lawyers (Sec. 78 Tentative Draft No. 8).

A lawyer may be liable to a third party if he or she wrongfully releases that party's funds to his or her client. Western States Ins. Co. v. Louis Olivero & Associates, 670 N.E.2d 333 (Ill. App. 3rd Dist. 1996). For a non-client to succeed in a negligence action against a lawyer, he or she must prove that the primary purpose and intent of the attorney-client relationship itself was to benefit or influence the third party. Pelham v. Griesheimer, 440 N.E.2d 96 (Ill. 1982).

In order for a lawyer to be liable for malpractice to a non-client, a duty of care must be established to a non-client by showing that the primary purpose of the attorney/client relationship was to benefit the plaintiff. York v. Stiefel, 458 N.E.2d 488 (Ill. 1983).

This is particularly true where issues arise in the drafting of a will. Illinois courts have applied the third beneficiary statute to contingent beneficiaries under a will, but has refused to give standing to the spouses of such beneficiaries. Jewish Hosp. v. Boatmen’s Nat’l Bank, 633 N.E.2d 1267 (Ill. App. 5th Dist. 1994). After an estate is opened, an executor’s attorney must be solicitous of the beneficiaries interest. In re Estate of Knoes, 448 N.E.2d 935 (Ill. App. 1st Dist. 1983); see also In re Estate of Halas, 512 N.E.2d 1276 (Ill. App. 1st Dist. 1987).

1.1:420      Reliance on Lawyer's Opinion [see also 2.3:300]

See discussion under 1.1:410, Duty of Care to Certain Non-Clients.

1.1:430      Assisting Unlawful Conduct [see also 1.2:600-1.2:630]

IRPC 1.2(d) provides:

A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but the lawyer may discuss the legal consequences of any proposed course of action with a client and may counsel or assist a client to make a good-faith effort to determine the validity, scope, meaning or application of the law.

In addition to the above strictures, IRPC 8.4(a)(3) and (4) generally prohibit a lawyer from engaging in criminal or dishonest conduct.

1.1:440      Knowledge of Client's Breach of a Fiduciary Duty [see also 1.13:520]

IRPC 1.2(g) states:

A lawyer who knows a client has, in the course of representation, perpetrated a fraud upon a person or tribunal shall promptly call upon the client to rectify the same, and if the client refuses or is unable to do so, the lawyer shall reveal the fraud to the affected person or tribunal, except when the information is protected as a privileged communication.

IRPC 3.3(a) states, in part:

In appearing in a professional capacity before a tribunal, a lawyer shall not:

(2) fail to disclose to a tribunal a material fact known to the lawyer when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

(4) offer evidence the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

On the other hand, although IRPC 4.1 (Truthfulness in Statements to Others) commands, in 4.1(b), a lawyer to disclose a material fact when necessary to avoid assisting a client fraud, the command is made subject to Rule 1.6.

Although IRPC 3.3 contains material not present in MR 3.3, the quoted language is identical with the ABA text. IRPC 1.2(g) is not part of MR 1.2. IRPC 4.1 is identical with MR 4.1.

It has been noted by the ABA in 87-353 and 93-376, that the commands of MR 3.3 supersede MR 1.6; and the inconsistency between 3.3 and MR 4.1 is silently ignored in these two ABA opinions—possibly by reasoning that the "Others" referred to in MR and IRPC 4.1 does not refer to a "Tribunal" as described in MR 3.3.

In other words, IRPC 1.2(g) and 4.1 limit the commands on the lawyer to make the relevant disclosures to the tribunal, while maintaining the unqualified language of IRPC 3.3 quoted above. The ISBA Committee on Professional Conduct, in 94-24, resolved the conflict between 3.3 and 1.2(g) by applying conventional rules of construction, treating IRPC 1.2(g) as a general rule, and the narrower scope of IRPC 3.3 as an exception, superseding the general rule in matters before a tribunal. The opinion makes no reference to IRPC 4.1. No case law affirms or rejects this interpretation.

1.1:450      Failing to Prevent Death or Bodily Injury

No Illinois appellate court has had to rule on a lawyer's violation of IRPC 1.6(b) which requires a lawyer "to reveal information . . . to the extent . . . necessary to prevent the client from committing an act that would result in death or serious bodily injury". But in a widely discussed case dealing collaterally with this issue, Balla v. Gambro, Inc., 584 N.E.2d 104 (Ill. 1991), the Court refused to award damages for the allegedly wrongful discharge of a lawyer employed by the defendant, when the lawyer reported the employer's importation of defective and dangerous medical devices. The Court recognized that the plaintiff had a duty to report the contemplated event; but it held that the right of a client to discharge the attorney at any time would be seriously impaired if a lawyer could retain employment (or impose a substantial cost on the employer if he or she were terminated), and this right of the client was basic to the professional relationship. The Court distinguished prior "whistleblower" wrongful discharge cases, such as Palmateer v. International Harvester, 421 N.E.2d 876 (Ill. 1981), on the ground that no professional relationship was involved in that case; and referred in contrast to Herbster v. North American Co., 501 N.E.2d 343 (Ill. App. 2nd Dist. 1986), refusing to extend the tort remedy of wrongful discharge to a situation similar to the Balla facts.

Balla is discussed in a dialogue by the counsel of record before the Supreme Court in 80 Ill. Bar J. 281 (1992); see also Reynolds, Wrongful Discharge of Employed Counsel, 1 Georgetown J. Legal Ethics 553 (1988).

1.1:500   Defenses and Exceptions to Liability

Primary Illinois References: IL Rule 1.1
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: ABA/BNA § 301:1001, ALI-LGL §§ 76, 78, Wolfram § 5.6

1.1:510      Advocate's Defamation Privilege

[The discussion of this topic has not yet been written.]

1.1:520      Wrongful Use of Civil Proceedings; Abuse of Process; False Arrest

[The discussion of this topic has not yet been written.]

1.1:530      Assisting Client to Break a Contract

[The discussion of this topic has not yet been written.]

1.1:600   Vicarious Liability [see 5.1:500]

Primary Illinois References: IL Rule 1.1
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL § 79, Wolfram § 5.6