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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

1.2   Rule 1.2 Scope of Representation

For analysis of Illinois' somewhat unique Rule 1.2(e) see 4.4:200 "Threatening Prosecution."

1.2:100   Comparative Analysis of Illinois Rule

Primary Illinois References: IL Rule 1.2
Background References: ABA Model Rule 1.2, Other Jurisdictions
Commentary:

1.2:101      Model Rule Comparison

IRPC 1.2(a), (b), (c), (d) and (i) adopted the language of MR 1.2, (modified in 1.2(a) and (c) by the use of "disclosure" rather than "consultation"). As to (e), it adopted Illinois Code 7-105 with added reference to disciplinary action. MR 1.2(e) has been modified in Illinois to insert the words "or professional disciplinary actions"; as to (f), Illinois Code 7-102(a)(1)(2)(3); as to (g) and (h), Illinois Code 7-102(b)(1) and (2), modified as to the state of the lawyer's knowledge.

All of MR 1.2 is included; the additions (all basically derived from the Illinois Code) add necessary detail not contained in the ABA text.

All of IRPC 1.2 assumes that a "client" occupies that status without ambiguities. As with IRPC 1.7, 1.9 and 1.10, a person or entity may, for certain purposes, be regarded as a "client," without being one for other purposes. This problem arises with increasing frequency in regard to initial interviews with prospective clients. See ABA 90-358.

1.2:102      Model Code Comparison

Illinois courts hold that the attorney-client relationship is contractual and can be formed only by a retainer agreement or payment of fees. People v. Simms, 736 N.E.2d 1092, 1117 (Ill. 2000); Zych v. Jones, 406 N.E.2d 70, 74 (1st Dist. 1980); In re Chicago Flood Litigation, 682 N.E.2d 421 (1st Dist. 1997); Simon v. Wilson, 684 N.E.2d 791, 810 (1st Dist. 1997). Such agreements may be express or implied, oral or written. Zych, 406 N.E.2d at 74. The client must "manifest her authorization that the attorney act on her behalf, and the attorney must indicate his acceptance of power to act on the client's behalf." Simms, 736 N.E.2d at 1117; Simon, 684 N.E.2d at 810. The formation of the relationship hinges on "the client's belief that he is consulting a lawyer in that capacity and his manifested intention to seek professional legal advice." Herbes v. Graham, 536 N.E.2d 164, 168 (2nd Dist. 1989). Illinois courts echo the language of the Restatement (Third) of the Law Governing Lawyers, which provides that an attorney-client relationship forms when a person "manifest[s] to a lawyer the person's intent that the lawyer provide legal services for the person" and the lawyer consents or acquiesces. Restatement (Third) of the Law Governing Lawyers §14(1) (2000).

To become a client, a person also must request or receive legal advice. Makela v. Roach, 492 N.E.2d 191, 194 (2nd Dist. 1986). This rule is similar to that enunciated in the Restatement (Third) of the Law Governing Lawyers, which requires that, in order to become a client, a person also have the evident purpose of securing legal advice. Restatement (Third) of the Law Governing Lawyers §14(1) (2000). For example, if an attorney volunteers to provide a legal explanation of various documents and responds to questions raised during the course of the meeting, that conduct creates an attorney-client relationship. Nelson v. Nationwide Mortgage Corp., 659 F. Supp. 611, 618 (D.C. Dist. 1987). Conversely, when a lawyer represents a co-party, the mere fact that a person receives some benefit does not create an attorney-client relationship. Restatement (Third) of the Law Governing Lawyers §14(1) Comment C (2000). Nor is an attorney-client relationship formed when a lawyer or law firm testifies as an expert for a client. Commonwealth Ins. Co. v. Stone Container Corp., -- F. Supp.2d --, 2001 WL 1636919 (N.D. Ill. 2001) (citing ABA Formal Opinion 97-407).

Until recently, there was a split among districts concerning the extent to which an attorney and client must come to a formal agreement to form an attorney-client relationship. The Illinois Appellate Court for the 5th District held in Morris v. Margulis, 718 N.E.2d 709 (5th Dist. 1999) (reversed on other grounds), that "even a brief meeting, resulting in no formal retainer or payment of fees, is sufficient to create the [attorney-client] relationship." The First District however, had held explicitly in Zych, 406 N.E.2d at 74, In re Chicago Flood Litigation, 682 N.E.2d at 425, and Simon, 684 N.E.2d at 810, that the attorney-client relationship is contractual and can be formed only by a retainer agreement or payment of fees.

The Illinois Supreme Court resolved this split in Simms, 736 N.E.2d at 1117. In that case, the court held that "the attorney-client relationship is a voluntary, contractual relationship that requires the consent of both the attorney and client" and is "only created by a retainer or an offer to retain or a fee paid." Id. The court adopted the First District's language in Simon, holding that "[t]he client must manifest [his] authorization that the attorney act on [his] behalf, and the attorney must indicate [her] acceptance of the power to act on the client's behalf." Id. The Illinois Attorney Registration and Disciplinary Commission has echoed this view, holding that the client "must manifest his authorization that the attorney act on his behalf, and the attorney must indicate his acceptance of the power to act on the client's account….The agreement often is manifested by an offer to retain which is accepted or the payment of a retainer or fee." In re Edward Cordova, Respondent-Appellant, No. 6183454, 1999 WL 974389 (Ill. Atty. Reg. Disp. Com. 1999).

1.2:200   Creating the Client-Lawyer Relationship

Primary Illinois References: IL Rule 1.2
Background References: ABA Model Rule 1.2, Other Jurisdictions
Commentary: ABA/BNA § 31:101, ALI-LGL §§ 26-29A, Wolfram § 9.2

94 Ill. Atty. Reg. & Disc. Comm. CH 235 (filing complaint without informing client, settling case with client's knowledge and other intentional misconduct warranted disbarment); see also 93 Ill. Atty. Reg. & Disc. Comm. SH 100 (finding misrepresentation when attorney submitted false documents and made false statements in connection with a client's loan application).

1.2:210      Formation of Client-Lawyer Relationship

An attorney-client relationship only arises when both the attorney and client have consented to its formation. Altieri v. Estate of Snyder, 633 N.E.2d 711 (Ill. App. 1st Dist. 1992). The relationship is contractual in nature and can only be created by a retainer or offer to retain or fee paid. Zych v. Jones, 406 N.E.2d 70 (Ill. App. 1st Dist. 1980). The attorney-client relationship cannot be created by an attorney alone, nor can it be created by an attorney and a third party who has no authority to act on behalf of a third party. Holstein v. Grossman, 616 N.E.2d 1224 (Ill. App. 1st Dist. 1993). However, a third party with authority to act on behalf of a third party can create the attorney-client relationship for the benefit of the other. Id. In the case of McCracken & McCracken v. Haegele, 618 N.E.2d 577 (Ill. App. 4th Dist. 1993), the court deemed there to be a valid attorney-client relationship where the defendant was aware that the law firm had been retained by the defendant's co-owner in a certain property for the purpose of challenging property taxes and the defendant did not object to the retention of the firm. The court held that the defendant, by his conduct, ratified the co-owner's retention of a law firm. Id.

1.2:220      Lawyer's Duties to Prospective Client

An attorney-client relationship can be created through an initial interview between a prospective client and an attorney. Nuccio v. Chicago Commodities, Inc., 628 N.E.2d 1134 (Ill. App. 1st Dist. 1993). Confidential information passed to the attorney during this initial interview may be sufficient to disqualify the attorney from representing an opposing party in related litigation. Id. at 1137. See also Bridge Products, Inc. v. Quantum Chemical Corp., 1990 WL 70857 (N.D. Ill. 1990).

1.2:230      When Representation Must Be Declined [see 1.16:200-230]

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

1.2:240      Client-Lawyer Agreements

A fiduciary relationship exists between an attorney and client which requires that the attorney exercise the utmost good faith and fair dealing in any transaction arising out of his legal relationship with a client. Suppressed v. Suppressed, 565 N.E.2d 101 (Ill. App. 1st Dist. 1990). All transactions between an attorney and a client are subject to the closest scrutiny, with particular attention given to contracts made or altered after an attorney-client relationship has been formed. Lossman v. Lossman, 653 N.E.2d 1280 (Ill. App. 2nd Dist. 1985). Where an attorney derives a benefit from a transaction with his client, the benefit is presumed to be a result of undue influence. Doe v. Roe, 681 N.E.2d 640 (Ill. App. 1st Dist. 1997). Attorney-client transactions are not void per se, but are merely presumptably fraudulent. Monco v. Janus, 583 N.E.2d 575 (Ill. App. 1st Dist. 1991). A client may ratify an attorney-client transaction which is the product of the attorney's undue influence. Id. Sale of stock to client together with attorney's misrepresentation of value of stock constituted fraud and conflict of interest. In re March, 376 N.E.2d 213 (Ill. 1978).

1.2:250      Lawyer's Duties to Client in General

An attorney-client relationship gives rise to certain fiduciary duties owed by the attorney to the client including the duties of fidelity, honesty, and good faith in both the discharge of contractual obligations to and professional dealings with the client. Doe v. Roe, 681 N.E.2d 640 (Ill. App. 1st Dist. 1997). In the attorney-client relationship, the attorney has a duty to act skillfully and diligently on his client's behalf. Goodman v. Harbor Market, Ltd., 663 N.E.2d 13 (Ill. App. 1st Dist. 1995). An attorney commits misconduct warranting discipline when he disregards his client's instructions, fails to represent his client with undivided loyalty, fails to seek a lawful objective of his clients, and acts to protect the interests of third parties. In re Tepper, 533 N.E.2d 838 (Ill. 1988).

1.2:260      Client's Duties to Lawyer

An attorney is entitled to fees from his client. Even when the attorney is discharged by his client prior to the termination of a matter, the attorney is entitled to reasonable attorneys' fees under the doctrine of quantum meruit. Lee v. Ingalls Mem. Hosp., 597 N.E.2d 747 (Ill. App. 1st Dist. 1992). In assessing reasonable attorneys' fees under the doctrine of quantum meruit, courts will look at factors such as the time and labor required, the attorney's skill and standing, the nature of the cause and novelty and difficulty of the subject matter, the degree of responsibility in managing a case, and the usual and customary fee in the community and benefits resulting to the client from the attorney's work. Id.

1.2:270      Termination of Lawyer's Authority

A client may discharge an attorney at any time for any reason. In re Smith, 659 N.E.2d 896 (Ill. 1995). Furthermore, an attorney may request permission to withdraw from a pending case where a client substantially fails to fulfill an agreement or obligation to a lawyer as to expenses or fees. People ex rel. Burris v. Maraviglia, 636 N.E.2d 717 (Ill. App. 1st Dist. 1993). An attorney's authority to act on behalf of his client also ends with the death of the client. Washington v. Caseyville Healthcare Ass’n, 672 N.E.2d 34 (Ill. App. 5th Dist. 1996) (attorney possessed no authority at court hearing to approve settlement when client had died six days previously). The attorney's authority also terminates when the matter for which the attorney was hired is resolved. Herbster v. North American Co., 501 N.E.2d 343 (Ill. App. 2nd Dist. 1986). Once the attorney-client relationship comes to an end, the attorney cannot be held liable for legal malpractice based on actions which occur after the termination of the relationship. Garrett v. Lawyers, Inc., 653 N.E.2d 48 (Ill. App. 1st Dist. 1995) (attorney not liable for legal malpractice based on failure to bring action before running of statute of limitations when attorney-client relationship ended four months prior to running of statute of limitations).

1.2:300   Authority to Make Decisions or Act for Client

Primary Illinois References: IL Rule 1.2(a)
Background References: ABA Model Rule 1.2(a), Other Jurisdictions
Commentary: ABA/BNA § 31.301, ALI-LGL §§ 32-34, 37-41, Wolfram §§ 4.4, 4.6

1.2:310      Allocating Authority to Decide Between Client and Lawyer

The relationship between a client and a lawyer is one of principal and agent and as such, subject to the lawyer’s ethical duties, the attorney is bound to follow the lawful instructions of the client and his actions are restricted to the scope of the authority conferred. People v. Wilkerson, 463 N.E.2d 139 (Ill. App. 4th Dist. 1984). An attorney must act in accordance with the authority conferred by the client. Fleener v. Fleener, 263 N.E.2d 879 (Ill. App. 3rd Dist. 1970).

1.2:320      Authority Reserved to Client

The client has exclusive control over the subject matter of the litigation. Herbster v. North American Co., 501 N.E.2d 343 (Ill. App. 2nd Dist. 1986). A client may dismiss or settle a case regardless of his attorney's advice to the contrary. Id. This is so despite the fact that the attorney and client have entered into a contingent fee contract. Id. An attorney does not have the power to dismiss or settle a case without client-expressed approval. Burton v. Estrada, 501 N.E.2d 254 (Ill. App. 1st Dist. 1986). The attorney's interest in his fees is subordinate to that of his client's wishes with regard to prosecution and settlement of the suit. Chiappetti v. Knapp, 314 N.E.2d 489 (Ill. App. 1st Dist. 1974). An attorney has no right to prosecute a claim contrary to the wishes of his client. Id. A decision to waive the statute of limitations must normally be made by a client and not by the attorney. People v. Sifford, 617 N.E.2d 499 (Ill. App. 3rd Dist. 1993). In criminal proceedings, there are four decisions which belong to the client after consultation with the attorney: (1) what plea to enter, (2) whether to waive the right to a jury, (3) whether to testify on the client's own behalf, and (4) whether to appeal. People v. Griffith, 634 N.E.2d 1069 (Ill. 1994).

1.2:330      Authority Reserved to Lawyer

A lawyer is deemed to be the manager of the case and therefore has exclusive authority regarding the strategy and tactical decisions to be made in the prosecution or defense of a case. People v. Johnson, 581 N.E.2d 118 (Ill. App. 1st Dist. 1991). The attorney has the authority to decide which theory of prosecution or defense to pursue and has ultimate authority to decide trial strategy. People v. Guest, 655 N.E.2d 873 (Ill. 1995). However, while a decision on litigation conduct and tactics may be made by an attorney without the consent of his client, an attorney does not have the power to dismiss or settle a case without his client's expressed approval. Burton v. Estrada, 501 N.E.2d 254 (Ill. App. 1st Dist. 1986).

1.2:340      Lawyer's Authority to Act for Client

The attorney-client relationship is one of agency. Thus, a client is generally bound by the acts or omissions of the attorney which are within the scope of the attorney's authority. Sakun v. Taffer, 643 N.E.2d 1271 (Ill. App. 1st Dist. 1994), and People v. Colts, 645 N.E.2d 225 (Ill. App. 1st Dist. 1993).

1.2:350      Lawyer's Knowledge Attributed to Client

A party is normally responsible for following his own lawsuit and will be bound by the negligence of his attorney. O'Malley v. Powell, 559 N.E.2d 981 (Ill. App. 1st Dist. 1990).

1.2:360      Lawyer's Act or Advice as Mitigating or Avoiding Client Responsibility

A 1915 case from the Illinois Supreme Court held that a client acting on his lawyer’s advice that a certain act was legal could not be held to have the criminal intent necessary to commit a crime. Allen v. U.S. Fidelity & Guaranty Co., 109 N.E. 1035 (Ill. 1915). In Allen, a county treasurer retained, for his own use, certain funds upon the advice of his lawyers that a statute specifically provided that the treasurer was entitled to such funds. The issue was then raised as to whether the treasurer’s actions amounted to larceny or embezzlement. The Illinois Supreme Court, noting that all the evidence indicated that the treasurer was advised by his attorneys that under the law he was entitled to retain the money as compensation for his services, found that the treasurer did not have the criminal intent to commit said crime.

1.2:370      Appearance Before a Tribunal

A lawyer is an officer of the court. In re A.V., 674 N.E.2d 118 (Ill. App. 1st Dist. 1996). A lawyer has an obligation to be truthful to the court as well as a duty of good faith and candor in dealing with the judiciary. Id. A lawyer is obligated to answer questions from the court. City of Chicago v. Higginbottom, 579 N.E.2d 890 (Ill. App. 1st Dist. 1991).

1.2:380      Authority of Government Lawyer

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

1.2:400   Lawyer's Moral Autonomy

Primary Illinois References: IL Rule 1.2(b)
Background References: ABA Model Rule 1.2(b), Other Jurisdictions
Commentary: Wolfram § 10.4

1.2:500   Limiting the Scope of Representation

Primary Illinois References: IL Rule 1.2(c)
Background References: ABA Model Rule 1.2(c), Other Jurisdictions
Commentary: ABA/BNA § 31:301, ALI-LGL § 30, Wolfram § 5.6.7

IRPC 1.2(c) states that an attorney may limit the objectives of representation if, after disclosure of such limitations, the client consents. "Disclosure" is defined under the IRPC to mean "communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question." IRPC, Terminology. This section acknowledges that a client-lawyer relationship is contractual in nature and thus allows the attorney and client to agree that the attorney will commit more or less time and energy, assume more or less responsibility, or generate more or less in the way of a legal fee. 1 Geoffrey C. Hazard, Jr. and W. William Hodes, The Law of Lawyering § 5-10 (3d ed. 2001). Limitations on representation may be made by an agreement with the client that specifically deals with the issue of limitations. In addition, limitations can be made within the terms of the general engagement agreements under which the attorney's services are made available to the client.

Illinois courts have recognized that an attorney's duties may be limited by the scope of an attorney/client agreement. A cause of action against an attorney for legal malpractice, whether grounded in tort law or contract law, arises out of either an express or implied contract for legal services. Majumdar v. Lurie, 653 N.E.2d 915, 918 (Ill. App. Ct., 1st Dist., 1995). Consequently, because the duty owed by the attorney arises out a contractual relationship, such duty is necessarily limited by the scope of the contract of engagement. See id.

Inherent in a client-lawyer relationship is the fact that the attorney has superior knowledge regarding the avenues and approaches in representation. 1 Geoffrey C. Hazard, Jr. and W. William Hodes, The Law of Lawyering § 5-10 (3d ed. 2001). Thus, because the attorney has a better understanding of how a limiting agreement can affect a client's case, the attorney is responsible for identifying and specifying any limitations before they are finalized. See id.

Full explanation of a limitation has recently been expanded by Keef v. Widuch to include disclosure of possible claims not being pursued because of a limiting agreement. 747 N.E.2d 992 (Ill. App. Ct., 1st Dist., 2001). In Keef, the plaintiff was injured at work twice when a lathe malfunctioned. See id. at 995. He sought the representation of counsel by a law firm and signed attorney-client agreements. These agreements clearly limited the attorneys' representation to workers' compensation claims. However, the plaintiff later discovered that there were possible product liability claims that could have been brought against the lathe manufacturer. The plaintiff brought action for legal malpractice against his attorneys, claiming that they failed to properly advise him about the possibility of third-party claims and the applicable statutes of limitations. The defendants argued that their duty was defined solely by their contracts and that they were not obligated under the contracts to provide representation in third-party actions. See id. at 997. The plaintiff contended that the defendants' duties were not limited by the agreements but arose out of the attorney-client relationship. He argued that a workers' compensation attorney has a duty to inform clients of possible third-party recoveries because the typical injured worker is a layperson who would not have a full understanding of his legal options.

The court found that the relevant complaint did state a cause of action for malpractice and remanded the cause. The court pointed out that not all duties of an attorney are limited to terms of an attorney-client agreement. For example, the requirement of competence is a duty imposed regardless of contractual terms. In addition, the duty to provide advice to clients about legal remedies is also independent of a written contract. The court explained that the attorney has a duty to inform a client about the scope of the attorney's representation, and cited IRPC 1.2(c). The court stated that "although a representation agreement may limit the scope of representation to a particular legal course of action, the client must be made to understand that the course of action is not the sole potential remedy and that there exist other courses of action that are not being pursued." Id. at 998. Requiring the attorney to either advise the client about possible third-party actions or to seek advice from a qualified attorney would be a minimal burden on the attorney. If a workers' compensation attorney fails to advise a client about possible actions, the client is not adequately informed about the limited scope of the attorney's representation. Id.

An agreement concerning the scope of representation must accord with the rules of professional conduct and other law. Therefore, the client may not be asked to agree to representation that is so limited in scope that it violates other rules or materially impairs his or her rights. There are certain rights that cannot be surrendered or waived by a client, even if the proposed limitation is fully explained and even if the client consents. For example, clients cannot agree to accept services that are less than competent. 1 Geoffrey C. Hazard, Jr. and W. William Hodes, The Law of Lawyering § 5-11 (3d ed. 2001). A client cannot agree to pay fees that are unreasonable and cannot waive his or her right to dispute fees. Also, a client cannot agree to surrender rights to settle litigation or to terminate an attorney's services.

If a client is asked to agree to limit the liability of its attorney, the attorney must observe the provisions of IRPC 1.8(f), which states that "a lawyer shall not make an agreement with a client prospectively limiting the lawyer's liability to the client unless such an agreement is permitted by law and the client is independently represented in making the agreement." In addition, IRPC 1.8(g) prohibits the attorney from settling a claim against that attorney made by an unrepresented client without first advising that person in writing that independent representation is appropriate. Finally, IRPC 1.8(h) states that an attorney cannot enter into an agreement with a client that would limit the right of the client to file or pursue a complaint before the ARDC. Agreements such as these are against public policy because they tend to undermine competent and diligent representation. See Restatement (Third) of the Law Governing Lawyers § 54, Comment b. Also, many clients are unable to evaluate such an agreement before a dispute has arisen or when represented solely by the attorney who is seeking the agreement.

The Restatement acknowledges that there is a relationship between rules allowing limitation agreements and rules that prohibit limiting liability. See id. It states that even though an agreement to limit liability is prohibited, an attorney and client may properly take certain measures that may have the effect of narrowing or otherwise affecting the attorney's liability. See id. Section 19(1) of the Restatement recognizes that the parties may make reasonable agreements limiting the scope of representation and may arbitrate legal malpractice claims pursuant to those agreements. See id. at § 19(1). According to the Restatement, two requirements must be met in order for the limitations to be upheld. First, the client must be adequately informed and must consent. Second, the terms of the limitation must be reasonable in the circumstances. The reasonableness requirement serves to alleviate the concerns that the limitation is motivated by the objective of diminishing malpractice liability. See id. at § 19, Comment a.

There is a trade-off of benefits and risks involved in limited legal representation to both the client and the attorney. For example, an attorney may limit representation to more lucrative areas. Doing so allows the attorney to make better use of time and resources. At the same time, the agreement benefits the client financially because the fewer areas in which the high-priced attorney will represent the client, the fewer legal fees the client has to pay. Limited representation may also be a way to avoid conflicts of interest between and among clients. The attorney can limit representation of new clients to issues that do not create risk of adversity to existing clients. Limited representation is also common when services are being provided by legal aid or public service agencies that have budgetary limits. Limitation agreements are also utilized in representation dealing with insured-insurer relationships. Limited representation becomes problematic, however, when there is self-interest and divided loyalty. The attorney must be sure not to minimize the downside of limited representation. When that happens, the attorney is not acting for the best interest of the client, but for the best interest of the attorney. The attorney must be careful not to violate the duty to communicate with the client.

Similar to limiting agreements are engagement agreements, used to prevent errors and claims when representing financial institutions. In the representation of financial institutions, limitation of the scope of representation is advisable. The Restatement even recommends that the language of MR 1.2(a) and (c) be included in engagement agreements. See Restatement (Third) of the Law Governing Lawyers § 28.45.

IRPC 1.2(c) implicates IRPC 1.4, which provides that an attorney must keep clients reasonably informed about the representation and must explain matters in sufficient detail to permit clients to make informed decisions.

Another situation in which IRPC 1.2(c) is involved is when an attorney withdraws or imposes limitations in mid-representation. This often takes place when there is a conflict of interest discovered after representation has commenced. For detailed explanation of conflict of interest issues, refer to §1.7 of this commentary.

The Local Rule 83.51.2(c) of the United States District Court for the Northern District of Illinois parallels IRPC 1.2(c) and is identical in language.

1.2:510      Waiver of Client or Lawyer Duties (Limited Representation)

An attorney's duty is limited by the scope of the attorney-client contract. Majumdar v. Lurie, 653 N.E.2d 915 (Ill. App. 1st Dist. 1995). In Majumdar, the court held that a complaint against an attorney for legal malpractice must be based either in contract or in tort and when grounded in tort, the action arises out of the express or implied contract for legal services, and an attorney's duty is necessarily limited by the scope of the contract. Id.

1.2:600   Prohibited Assistance

Primary Illinois References: IL Rule 1.2(d)
Background References: ABA Model Rule 1.2(d), Other Jurisdictions
Commentary: ABA/BNA § 31:301, ALI-LGL § 151, Wolfram § 13.3

1.2:610      Counseling Illegal Conduct

There is no duty of an attorney owed to a client that authorizes collaboration in a crime or fraud. People v. Wurbs, 347 N.E.2d 879 (Ill. App. 4th Dist. 1976). "An attorney's license is not a permit which allows for participation in a criminal act without liability." Id. In Wurbs, an attorney was convicted of conspiracy to commit theft of property when, knowing that certain guns were stolen, he contacted the owner of the guns on behalf of his clients and made arrangements for the return of the guns in exchange for a reward in which he was to share by reason of his contract with his clients. Id.

1.2:620      Assisting Client Fraud

An attorney does not owe his client a duty to cooperate in an act of fraud. People v. Wurbs, 347 N.E.2d 879 (Ill. App. 4th Dist. 1976). Fraud includes any conduct which is calculated to deceive, including suppression of the truth and suggestion of that which is false. In re Yamaguchi, 515 N.E.2d 1235 (Ill. 1987). Some of the situations in which attorneys have been disciplined for fraudulent action include the following: signing tax valuation complaints which were blank or not inspected and transmitting complaints to non-lawyer under circumstances whereby an attorney knowingly aides in the unauthorized practice of law and deceives a tribunal and the public, In re Yamaguchi, 515 N.E.2d 1235 (Ill. 1987). Attorney spouse's involvement in preparation of back dated letters violated disciplinary rules regarding fraud, In re Stern, 529 N.E.2d 562 (Ill. 1988); and failing to disclose information regarding client's wife who is under conservatorship and deceiving Department of Public Aid, client's wife and circuit court warranted disbarment, In re Braner, 504 N.E.2d 102 (Ill. 1987).

1.2:630      Counseling About Indeterminate or Uncertain Law

An attorney has the duty to research the law and protect his client's interests. Niziolek v. Chicago Transit Authority, 620 N.E.2d 1097 (Ill. App. 1st Dist. 1993). "Representations which a court may find reasonable for a layman to rely upon will not necessarily be considered reasonable for an attorney to rely upon." Id.

1.2:700   Warning Client of Limitations on Representation

Primary Illinois References: IL Rule 1.2(e)
Background References: ABA Model Rule 1.2(e), Other Jurisdictions
Commentary: ABA/BNA § 31:307, ALI-LGL § 165,

In In re Madsen, 370 N.E.2d 199 (Ill. 1977), an attorney was found to have violated Illinois Code Rule 7-105(a), which was the predecessor to IRPC Rule 1.2(e). In In re Madsen, the attorney and two of his associates had mailed over 2,000 pamphlets providing legal advice. The attorney was brought before the attorney disciplinary hearing board charged with the ethical violation of solicitation of professional employment by advertising. During a prehearing conference held at the offices of the attorney disciplinary system, the attorney stated to his two associates that if they testified in the proceedings against him the attorney would submit evidence that the associates’ conduct had been unethical and that they were guilty of violations of the criminal code. The attorney was suspended for a period of 30 days for this violation of disciplinary Rule 7-105(a) and the prior underlying ethical violation.

A prosecuting attorney was also found to have acted improperly by threatening a witness with criminal prosecution should the witness testify in the criminal trial of the witness’ brother. People v. McKiness, 433 N.E.2d 1146 (Ill. App. 2nd Dist. 1982). In McKiness, both the defendant and the defendant’s brother were charged with felony theft. When the defendant’s brother appeared at the courthouse for his own pretrial conference on the theft charges, the prosecuting attorney told the brother that if he testified in the defendant’s trial both would go to jail. The brother did not testify at the defendant’s criminal trial, and the defendant was convicted of theft. The appellate court held that the prosecutor’s comments were improper in that they were calculated to intimidate the brother and to prevent him from testifying. The court held that the comments went beyond the legitimate bounds of advising a prospective witness of the penalties for perjury or the voicing of disbelief of a prospective witness’ contemplated testimony. However, the appellate court found that defendant had waived his right to object to this conduct and refused to overturn the conviction.

1.2:800   Identifying to Whom a Lawyer Owes Duties

Primary Illinois References: IL Rule 1.2
Background References: ABA Model Rule 1.2, Other Jurisdictions
Commentary: ABA/BNA § 31:101, ALI-LGL §§ 72, 73, 155, 156A, Wolfram § 7.2

1.2:810      Prospective Clients [see 1.2:220]

An attorney client relationship can be created through an initial interview between a prospective client and an attorney. Nuccio v. Chicago Commodities, Inc., 628 N.E.2d 1134 (Ill. App. 1st Dist. 1993). Confidential information passed to the attorney during this initial interview may disqualify the attorney from representing an opposing party in related litigation. Id.

1.2:820      Persons Paying for Representation of Another [see 1.7:400]

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

1.2:830      Representing an Entity [see also 1.13:200]

An attorney for a corporate client owes his duty to the corporate entity and not to its individual shareholders, officers, or directors. Majumdar v. Lurie, 653 N.E.2d 915 (Ill. App. 1st Dist. 1995).

1.2:840      Representing a Fiduciary [see also 1.13:520]

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

1.2:850      Class Action Clients

An attorney who represents the named class members of an uncertified class action does not owe any duty to the unnamed members. Formeto v. Joyce, 522 N.E.2d 312 (Ill. App. 2nd Dist. 1988). In Formeto, the defendants represented several individuals in a class action lawsuit. Thereafter, the named class action plaintiffs were granted leave to file an amended complaint in which they withdrew all class action allegations. Afterwards, a settlement agreement was reached dismissing the prior action. Formeto then brought suit against defendants seeking damages allegedly arising out of the defendants’ representation in the underlying class action suit. The court held that an attorney who represents the named plaintiffs in a potential class action lawsuit has an obligation to those clients to give his undivided fidelity and represent them zealously within the law. The attorney may or may not choose to pursue the action as a class action, the primary purpose of the attorney client relationship in such a case clearly remains to benefit the client. Id. The court further held that the act of originally filing a cause of action as a class action suit cannot be said to clearly indicate an intent to benefit the unnamed members of the purported class. Therefore, the court found that the defendants owed no duty to the unnamed members of an uncertified class action and dismissed plaintiff’s cause of action.