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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

1.4   Rule 1.4 Communication

1.4:100   Comparative Analysis of Illinois Rule

Primary Illinois References: IL Rule 1.4
Background References: ABA Model Rule 1.4, Other Jurisdictions
Commentary:

1.4:101      Model Rule Comparison

Illinois adopted MR 1.4.

There was no equivalent to IRPC 1.4(a) in the Illinois Code, but failures to communicate have been grounds for discipline in the past; indeed, they are one of the most frequently stated grounds in complaints to the ARDC. There was no generic provision equivalent to Illinois Rule 1.4(b) in the Illinois Code, although equivalent requirements were contained in many places therein.

1.4:102      Model Code Comparison

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

1.4:200   Duty to Communicate with Client

Primary Illinois References: IL Rule 1.4(a)
Background References: ABA Model Rule 1.4, Other Jurisdictions
Commentary: ABA/BNA § 31.501, ALI-LGL §§ 31, Wolfram §§ 4.5, 4.6

Although neither the Illinois Code of Professional Responsibility or the ABA Model Code of Professional Responsibility articulated a precise equivalent to Rule 1.4, the duty to communicate dates back to the beginning of our legal system. See Baker v. Humphry, 101 U.S. 494 (1879) (holding "an attorney must promptly advise his client whenever he has information which it is important the client should receive"). Although many courts have recognized a specific duty to communicate, other courts have treated the duty to communicate as an intrinsic component of the lawyer's duty to provide competent representation to a client, IRPC 1.1, and a lawyer's duty to act with reasonable diligence, IRPC 1.3.

IRPC 1.4 has two subsections, each with slightly different focuses. Rule 1.4(a) aims to improve client communication and the attorney-client relationship by imposing a duty upon an attorney to promptly respond to client questions and demands for information. IRPC 1.4(b) focuses on the lawyer's duty to adequately inform the client so that he or she may participate in his or her defense. The seminal Illinois Supreme Court case construing 1.4 is In re Smith, 659 N.E.2d 896 (1995).

In re Smith involved the suspension of an attorney who had breached several ethical duties including the duty to communicate with his clients. The attorney agreed to represent numerous clients in dissolution of marriage proceedings, but consistently failed to keep his clients informed of the status of their cases. In one example, the attorney was hired by a client in May of 1991, and filed the client's dissolution of marriage in August of 1991. In October of 1991, the client's wife filed a pro se appearance; however, the attorney never communicated this to the client. The client began calling in October of 1991 but the attorney never returned his calls. The attorney finally met with the client in December of 1992 to discuss the status of the case. The court held that suspension was warranted since the lawyer had engaged in a pattern of neglecting client matters and failing to communicate with his clients. See id. at 273, 898. The court also noted that while the lawyer's duty to communicate applies to all client, adherence to this duty is particularly important for those clients who may be unfamiliar with the workings of the legal system. See id. at 282, 902.

In a similar case, the Illinois Supreme Court found that an attorney's discipline was warranted in light of his misconduct in representing four separate clients. See In re Samuels, 535 N.E.2d 808 (1989). The court held that in a six-year period the attorney undertook to represent four clients and engaged in a pattern of neglect of each of their matters. See id. at 817. In one instance, the attorney, without the client's consent, made a unilateral decision to dismiss a case and failed to communicate that decision to the client. Moreover, the attorney consistently failed to communicate with his clients and failed to return phone calls and written correspondence. See id. at 515-17. The Illinois Supreme Court affirmed the attorney's one-year suspension.

Furthermore, The Restatement (Third) of the Law Governing Lawyers addresses the lawyer's duty to keep a client reasonably informed about the status of the client's case. The Restatement comments that the duty to communicate includes keeping the client apprised of the progress, prospects, problems and costs of the representation. The Restatement identifies important events that might affect the client's objectives such as the assertion or dismissal of claims against or by the client. Other events may affect the attorney-client relationship or the scope of representation such as the lawyer's change of address, the dissolution of the lawyer's firm, the lawyer's serious illness, or a conflict of interest. Moreover, if the lawyer's representation of the client gives the client a substantial malpractice claim against the lawyer, the lawyer must also disclose that information to the client. See Restatement (Third) of the Law Governing Lawyers § 31 ct. c (P.F.D. No. 1 1996).

An important event that may affect the scope of the attorney's representation of which a client must be informed is illustrated in ISBA Advisory Opinion No. 92-07 (January 22, 1993). The advisory committee opined that where a law firm hires temporary attorneys to handle individual matters or cover court call motions and depositions, such an arrangement must be communicated to a client at the outset of representation.

The duty to communicate also arises out of the lawyer's fiduciary obligation to the client. As the Illinois Appellate Court, First District articulated in In re Marriage of Pitulla, 559 N.E.2d 819 (1st Dist 1990): "In every contract for hire between an attorney and his client, there is implied in the contract the client's right to always know what the attorney did or does, and how much time he took to do it. The time honored ideals of the legal profession and the continuing need for public confidence in the legal profession demand this conclusion." Id. at 93. In re Marriage of Pitulla involved an attorney's failure to communicate the nature of his services in obtaining a divorce for the client. The attorney was hired by the client to obtain a divorce. The attorney successfully obtained a dissolution of the marriage and charged his client $10,000 in fees. When the client requested an itemized bill for the attorney's services, the attorney refused. In finding the attorney's refusal improper, the court held that an attorney has a duty to reasonably communicate to his clients the services which are being performed by the attorney and the time spent in performing said services. See id. at 93-94.

An attorney also violates Rule 1.4 when he fails to inform his client that the case has been dismissed. See In re Ring, 565 N.E.2d 983 (Ill. 1990). In this case, the attorney undertook the representation of criminal defendant's appeal. The attorney filed a notice of appeal and filed his appearance on the record and sought additional time in which to file the brief. The attorney later unilaterally abandoned pursuit of the appeal (believing it was frivolous) and failed to inform his client that the appeal had been dismissed. The attorney failed to communicate this information to his client despite the fact that the client had made inquiries as to the status of the his case. The attorney was suspended from practice.

An attorney may also have an affirmative duty under 1.4 to provide a client with certain written documents. For example, ISBA Advisory Opinion No. 94-14 (January, 1995) suggests that 1.4 requires a lawyer to return all papers and property received from the client upon termination of the attorney. In contrast, ISBA Advisory Opinion No. 94-13 (January 1995) does not require a lawyer to comply with a client's request for investigative materials prepared by or for the lawyer. Similarly, the Illinois Appellate Court, Fourth District held in People v. Davison, 686 N.E.2d 1232 (4th Dist. 1997), an attorney does not have a duty under 1.4 to allow a defendant to read discovery materials. The court acknowledged that an attorney is obligated to inform a defendant of important matters and respond to the defendant's requests for information, but that duty does not include allowing the defendant to read discovery materials. See id. at 1236.

Moreover, the Restatement (Third) of Law Governing Lawyers § 58 discusses a client's right to retrieve and inspect documents. Section 58 entitled "Document's Relating to Representation" generally states that a client is entitled to review and copy any document related to his representation. A lawyer may deny a client's request to review documents if compliance would violate the attorney's duty to another, a court order prohibits the copying of certain documents, or where the attorney believes the client may use the documents to commit a crime. In certain circumstances, a lawyer can withhold documents for the client's own benefit. See Restatement (Third) of Law Governing Lawyers § 58 ct. c (Proposed Final Draft No. 1 1996).

1.4:300   Duty to Consult with Client

Primary Illinois References: IL Rule 1.4(a)
Background References: ABA Model Rule 1.4(b), Other Jurisdictions
Commentary: ABA/BNA § 31.501, ALI-LGL §§ 31, Wolfram §§ 4.5

IRPC 1.4(b) imposes an affirmative duty on a lawyer to take the necessary steps to keep his client informed about their cases so the client can make intelligent choices as to the direction of the litigation. In this respect, IRPC 1.4(b) is closely connected to IRPC 1.2(a). A lawyer cannot competently abide by the client's decisions concerning his case without arming the client with sufficient knowledge for intelligent decision making. Moreover, most of the conflict of interest rules allow for the client to waive the lawyer's conflict after full disclosure by the lawyer. A valid waiver implicitly requires that the attorney explain the matter to the extent necessary for the client to make an informed decision about waiving that conflict of interest. See ISBA Advisory Opinion No. 91-20 (January, 1992) (finding that under 1.4(b) an attorney has a duty to explain matters to the extent reasonably necessary to permit the client to make an informed choice in executing a valid waiver of a 1.9 conflict of interest). Thus, an attorney's compliance with Rule 1.2(a) and the conflict rules requires communication by the attorney under Rule 1.4.

Rule 1.4(b) is equally applicable in criminal matters. In a criminal case, the attorney must abide by the client's decision as to what plea to enter, whether to waive a jury trial and whether the client should testify under Rule 1.2(a). Thus, compliance with Rule 1.4(b) requires that the attorney adequately inform the client as to the consequences and risks of each of these decisions. In rare circumstances, an attorney's failure to inform his client of the consequences and risks of the client's decisions may rise to the level of ineffective assistance of counsel. See e.g., People v. Padilla, 502 N.E.2d 1182 (1st Dist. 1986) (counsel found ineffective for failing to inform undocumented client that guilty plea might result in deportation).

Failure to adequately inform the client about the risks and consequences of a certain legal solution may give rise to a legal malpractice claim. In Metrick v. Chatz, the plaintiffs filed a legal malpractice action against his bankruptcy attorney for failing to disclose to them the advantages of Chapter 7 liquidation over Chapter 11 reorganization. The court stated:

It is the duty of every attorney to inform client of the available options for alternative legal solutions, as well as, to explain foreseeable risks and benefits of each. The purpose of such a rule is to enable the client to make an informed decision as to whether the foreseeable risks of a proposed legal course of action are justified by its potential benefits when compared to other alternative courses of action. If a client suffers damage because of the happening of a foreseeable risk of which he or she was not informed, the attorney may be liable. In such a case, the attorney's liability is not predicated upon the impropriety of the chosen course of action, but rather upon the failure to inform the client sufficiently to enable him or her to voluntarily accept the risk attendant thereto. Id. at 200.

Thus, an attorney has an obligation to arm his or her clients with sufficient information to take part in the decision-making process of his or her representation. Failure to do so may warrant discipline or could lead to a legal malpractice suit.

1.4:400   Duty to Inform the Client of Settlement Offers

Primary Illinois References: IL Rule 1.4
Background References: ABA Model Rule 1.4, Other Jurisdictions
Commentary: ABA/BNA § 31.501, ALI-LGL §§ 31, Wolfram §§ 4.5

Although an attorney has the authority to make decisions regarding litigation conduct and tactics, the attorney does not have the power to dismiss or settle a case without his client's express approval. IRPC 1.2(a) explicitly requires a lawyer to abide by a client's decision whether to accept an offer of settlement. This presupposes that the offer is communicated to the client. Thus, IRPCs 1.2(a) and 1.4 work are closely connected.

In Burton v. Estrada, the appellate court vacated a settlement dismissal order after finding that the settlement offer was never communicated to the client. The plaintiff, Stephanie Burton, a minor, brought a medical malpractice claim against her doctor and two drug manufacturers for personal injury. Without the client's knowledge, the attorney dismissed the case. The court held: "For an attorney to settle a . . . case and direct the cashing of settlement checks without authorization by his client is in itself an impropriety requiring discipline." Burton v. Estrada, 501 N.E.2d 254 (1st Dist. 1986). In another case an attorney settled a personal injury claim without his client's consent or knowledge and forged his client's name to a settlement check and converted the settlement proceeds for his personal use. The Illinois Supreme Court disbarred the attorney. See In re Stillo, 368 N.E.2d 897 (Ill. 1977). A similar result was reached in Matter of Wojcik, 94 Ill. Atty Reg. & Disc. Comm. Ch 235 where the attorney settled the case without consent of his client, forged his client's name on the settlement check and converted proceeds to his own personal use. The ARDC review board recommended that the attorney be disbarred. See also ISBA Advisory Opinion No. 91-21 (January, 1992) (opining that an attorney is in violation of the Rules by not conveying to his client a demand made by the adverse party).

The United States Court of Appeals for the Seventh Circuit has also interpreted IRPC 1.4 as requiring an attorney to inform his client of settlement offers. In re Duke, 79 F.3d 43 (7th Cir. 1996). In this bankruptcy case, a creditor sent both an attorney and his client, the debtor, a letter regarding reaffirmation of prepetition debt. In finding that the creditor did not violate automatic stay by sending letter directly to the creditor, the court relied partly on the fact that under Rule 1.4, the attorney would have been obliged to communicate this offer to the client. See id. at 46.

Moreover, the Seventh Circuit Court of Appeals requires defense counsel to communicate plea offers to defendants. See Johnson v. Duckworth, 793 F.2d 898 (7th Cir. 1986). In Johnson, the court denied the defendant's contention that he was denied effective assistance of counsel, but fully agreed with the position that criminal defense attorneys have a duty to communicate to their clients, plea agreements proffered by the prosecution. See id. at 902. The court elaborated on this rule by stating that not only must the client be informed about the plea offer, he must also be involved in the decision-making process of whether to accept or decline the offer. See id.

Accordingly, compliance with 1.4(b) requires attorneys to communicate offers of plea agreements in both the civil and criminal context.