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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.

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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

1.3   Rule 1.3 Diligence

1.3:100   Comparative Analysis of Illinois Rule

Primary Illinois References: IL Rule 1.3
Background References: ABA Model Rule 1.3, Other Jurisdictions
Commentary:

1.3:101      Model Rule Comparison

Illinois adopted MR 1.3 exactly.

Illinois Code 6-101(a)(3) forbade a lawyer from neglecting a matter. Again, the concept is obvious and not new. It has been grounds for professional discipline in a number of cases. Law firms should note their partners' obligations under IRPC 5.1. Other rules implicit in the parameters of Rule 1.3 are the following: 7-101(a)(1) requiring a lawyer to seek lawful objectives of client through reasonable available means permitted by law; 7-101(a)(2) requiring an attorney to carry out employment entered into with a client; and 7-101(a)(3) forbidding attorney to prejudice or damage client during course of relationship. See In re Wright, 92 Ill. Atty. Reg. & Disc. Comm. CH 543 n.1 (October 12, 1994).

1.3:102      Model Code Comparison

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

1.3:200   Diligence and "Zeal"

Primary Illinois References: IL Rule 1.3
Background References: ABA Model Rule 1.3, Other Jurisdictions
Commentary: ABA/BNA § 31:401, ALI-LGL § 28, Wolfram § 10.3

An attorney is obligated to represent a client with zeal and diligence within the bounds of the law. In re Ring, 565 N.E.2d 983 (Ill. 1990). Attorneys have a legal and ethical duty to act with reasonable diligence in representing their client’s interest. Tiller v. Semonis, 635 N.E.2d 572 (Ill. App. 1st Dist. 1994). The neglect of a client’s affairs is misconduct sufficient to warrant disciplinary sanctions. In re Levine, 463 N.E.2d 715 (Ill. 1984). Discipline will be appropriate even when an attorney neglects his client’s affairs and there is no showing of corrupt motive or moral turpitude. Id.

In determining whether an attorney has neglected a client matter, a court is not determining whether the conduct was negligent sufficient to provide one of the elements of a malpractice suit. In re Mason, 522 N.E.2d 1233, 1236 (Ill. 1988). Rather, the ultimate determination is whether the "cost of an attorney's error is to be borne by the attorney or the client who relied upon him." Id.

In Mason, the attorney failed to file a notice of claim pursuant to a section of the Metropolitan Transit Authority Act with the Chicago Transit Authority (CTA) against whom his client wanted to pursue an action in personal injury. Id. at 1234. After the initial client contact, the attorney investigated the matter, filled out and delivered an accident request form to the Chicago police department, sent his client a post-interview follow-up letter, mailed a notice of attorney's lien to the CTA, and checked for medical and emergency room records at the hospitals where his client was allegedly treated for his injuries. Id. at 1235. In his actions with the CTA, the attorney was not informed that the CTA required an official notice of claim within six months of the accident date and the attorney was not previously aware of such requirement. Id.

The Illinois Supreme Court did not surmise whether the attorney's failure to file statutory notice constituted "negligence" in the malpractice sense, but stated that "this oversight, standing alone, simply cannot be deemed neglect or incompetence within the meaning of the Professional Responsibility Code." Id. at 1236. The Court distinguished the attorney's misconduct from failure to file a claim within the applicable statute of limitations period. In those cases, an attorney sets the case aside in favor of other matters, whereas in Mason, the attorney promptly investigated and actively pursued the case at all relevant times, but was not aware of the statutory notice requirement. Id. Therefore, Attorney Mason's actions were not sufficiently culpable to warrant discipline. Id.

Illinois case law flushes out the types of attorney actions that constitute neglect. Abandonment of a legal matter entrusted to an attorney is not a condition precedent to discipline. In re Chapman, 448 N.E.2d 852, 854 (Ill. 1983). In Chapman, the attorney failed to file a brief by the court required filing date. Id. at 853. Consequently, the client's appeal was dismissed for failure to prosecute. Id. Attorney Chapman argued that in order for his actions to constitute neglect, he must have totally abandoned a legal matter entrusted to him. The court disagreed and held that in view of the attorney's failure to file a brief and motion and his refusal to return his client's telephone calls regarding the matter, indicates that Attorney Chapman did not handle his client's case with the required diligence. Id. at 854.

An attorney owes his client the duty of tracking their cases and learning the dates upon which the court hearings are to occur. Tiller v. Semonis, 635 N.E.2d 572 (Ill. App. 1st Dist. 1994). An attorney breaches his duty of diligence by failing to learn of a date of a hearing and failing to prepare at the hearing. Id. A failure of the attorney to be notified of the date of the hearing does not constitute an excuse for failing to appear at the hearing. Id.

Attorneys often violate their duty of diligence by failing to meet the filing deadlines for pleadings. In In re Fox, 522 N.E.2d 1229 (Ill. 1988), an attorney was suspended for eighteen months for failing to file appeals in two criminal matters. Similarly, in the case of In re Ring, 565 N.E.2d 983 (Ill. 1990), an attorney was suspended for a period of six months for failing to file an appeal in a criminal matter. Also, in the case of In re Levin, 463 N.E.2d 715 (Ill. 1984), an attorney was suspended for three years for failing to file several complaints before the applicable statutes of limitations ran. Contrast the attorney action in Levin, however, with the attorney actions in Mason, mentioned in the preceding paragraphs.

Although a breach of an attorney’s duty of diligence does not establish a separate duty or cause of action in tort, where an attorney’s neglect is a direct cause of the legal expenses incurred by a client, the attorneys’ fees incurred are rewardable as damages. Levine v. Kling, 922 F. Supp. 127 (N.D. Ill. 1996); Goran v. Glieberman, 659 N.E.2d 56 (Ill. App. 1st Dist. 1995).

In rare cases, an attorney's actions may be so egregious to constitute gross neglect. In In re March, 376 N.E.2d 213 (Ill. 1978), the Illinois Supreme Court held that neglect of a legal matter, causing clients' suits to be dismissed as barred by the statute of limitations, being dishonest with clients as to the status of their cases, while continuing to request money from them, and forcing the clients to resort to obtaining other counsel and filing of suits to obtain any settlement actions, constituted gross neglect of legal matter. Id. at 393. Because there were mitigating factors present, however, the attorney only faced suspension from the practice of law for one year. Id. at 400.

Disciplinary action for attorneys who neglect a legal matter range from censure to disbarment. Suspension has been found to be appropriate for culpable neglect where corrupt motive and moral turpitude have not been shown. Levin, 463 N.E. 2d at 717. Many times, the sanction depends upon whether there are mitigating factors involved. See In re Fox, 522 N.E.2d at 1232 (in determining the appropriate sanctions, the court must consider "the gravity of the offenses and the weakness of some of the attorney's asserted mitigating considerations.")

In In re Ahern, 177 N.E.2d 197 (Ill. 1967), there were six instances in which the attorney neglected or failed to perform the services for which he was paid. After evaluating the mitigating factors which included; the attorney refunding the unearned money, the fact that no clients were injured, that the attorney's child was ill and his wife had died, that there were no corrupt motives, and that the attorney's previous legal record was clean. Id. In addition to these mitigating factors, tax problems, an attorney's long history of pro bono work and civic activity have also been viewed as mitigating factors. See In re Harth, 531 N.E.2d 361, 365 (Ill. 1988).

In addition, if the attorney's actions are intentional, then more stringent sanctions are warranted. In In re Schneider, 456 N.E.2d 2 (Ill. 1983), the attorney admitted that he neglected legal matters entrusted to him with the result that his client's suffered over $8,000 in damages. Because his actions were intentional and caused harm to his clients, the Supreme Court of Illinois found that more severe discipline was appropriate. Id. at 6. In addition, the court was less likely to take mitigating factors into account. The Court found that restitution would not excuse improper conduct. Id. "Nor should domestic difficulties absolve an attorney of his wrongdoing." Id. In addition, the court was not willing to allow severe financial or emotional problems to mitigate the sanction. Id. Because Attorney Schneider was also charged and found guilty of representing clients with conflicting interests he was disbarred. Id.

Similarly, in criminal cases, an attorney who neglects a legal matter also faces stiffer sanctions. In Fox, 522 N.E.2d 1229 (Ill. 1988), the attorney failed to properly prosecute criminal appeals for three clients who had paid him retainers. Id. at 1230. The Illinois Supreme Court's rationale behind the more severe penalty was that an attorney's misconduct in a criminal case causes his clients to lose constitutional rights afforded them as accused in criminal cases. Id. at 1232. The Court stated that " a client's loss of his constitutional right to an appeal is less susceptible to monetary valuation or remedy than the loss of a civil suit for damages, and more severe discipline is appropriate to deter neglect in criminal cases than in civil cases." Id. At 1233. Thus, the attorney faced an 18-month suspension from the practice of law. Id.

1.3:300   Promptness

Primary Illinois References: IL Rule 1.3
Background References: ABA Model Rule 1.3, Other Jurisdictions
Commentary: ABA/BNA § 31:401, ALI-LGL § 28, Wolfram § 10.3

IRPC 1.3 and 3.2 address the same underlying attorney misconduct: unreasonable attorney delay in client matters. In re Smith, 659 N.E.2d 896 (Ill. 1995). Rule 1.3 imposes on an attorney a duty to act with reasonable diligence and promptness in representing a client. Id. The commentary MR 1.3, which rule is substantially similar to IRPC 1.3, recognizes that “[e]ven when the client’s interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in a lawyer’s trustworthiness.” Id. The ABA commentary also notes “perhaps no professional shortcoming is more widely resented than procrastination.” Id. The duty of reasonable diligence and prompt action set forth in Rule 1.3 is buttressed by IRPC 3.2.

In In re Smith, 659 N.E.2d 896 (Ill. 1995), an attorney was suspended for seventeen months for neglecting several client matters. In each case, the attorney was hired to procure dissolutions of marriage for his clients and his files showed long periods of inactivity, ranging from eight to fourteen months in each of the cases. Id.

However, an attorney who fails to take action on a matter in order to benefit the client is not in violation of the rule. In re Cassidy, 432 N.E.2d 274 (Ill. 1982). In Cassidy, a disciplinary action was brought against an attorney who had been hired to handle a personal injury claim. Upon being hired, the attorney took proper action in filing claims against certain defendants. The attorney settled with two defendant insurers; however, the insurers retained a lien on all monies that might be collected by the plaintiff from other defendants. The attorney then settled with the other defendants for an amount less than the liens held by the previously settling defendants. The attorney placed the funds from the subsequently settling defendant into his trust account, where it sat for over two years. The attorney did not believe that his client had any valid legal claim to the money in the trust account because the insurance companies had liens upon such monies. Therefore, the attorney strategy was to try to persuade the insurance companies to waive their liens or in the alternative to wait until the statute of limitations had run on the insurer’s causes of action and then distribute the money to the plaintiff. The court held that because the attorney did not believe his client had any right as against the lienholders to the funds in the trust account, and because the attorney was reasonable in so believing, the attorney could not be charged with improper delay in paying to the client the funds under his control. The court also held that because the attorney’s strategy for preserving for his client necessarily involved large amounts of time and patience, the attorney could not be charged with neglect of the case merely because its resolution did in fact take a long time. Id.

Similarly, the court in In re Harris, 514 N.E.2d 462, found the attorney did not neglect a legal matter on behalf of his client. Attorney Harris informed his client upon being retained that the case's resolution would take a very long time. Id. at 462. The client gave his permission to the attorney to take as much time as he desires, and in fact, resolution of the case did take a long time. Id. The court stated that there was no evidence that the attorney's delay "prolonged the matter beyond the bounds allowed by his clients and permitted by law. . . ." Id. at 464.