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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

1.14   Rule 1.14 Client Under a Disability

1.14:100   Comparative Analysis of Illinois Rule

Primary Illinois References: IL Rule 1.14
Background References: ABA Model Rule 1.14, Other Jurisdictions
Commentary:

IRPC 1.14 is identical with the MR except that the words at the end of paragraph (a)- "with the client"- have been omitted in the Illinois text.

There was no equivalent provision in the Illinois Code.

1.14:101      Model Rule Comparison

IRPC 1.14 is identical with the MR except that the words at the end of paragraph (a) "with the client" have been omitted in the Illinois text.

1.14:102      Model Code Comparison

There is no direct counterpart to this Rule in the Disciplinary Rules of the Code. However, EC 7-12 states: "Any mental or physical condition of a client that renders him incapable of making a considered judgment on his own behalf casts additional responsibilities upon his lawyer. Where an incompetent is acting through a guardian or other legal representative, a lawyer must look to such representative for those decisions which are normally the prerogative of the client to make. If a client under disability has no legal representative, his lawyer may be compelled in court proceedings to make decisions on behalf of the client. If the client is capable of understanding the matter in question or of contributing to the advancement of his interests, regardless of whether he is legally disqualified from performing certain acts, the lawyer should obtain from him all possible aid. If the disability of a client and the lack of a legal representative compel the lawyer to make decisions for his client, the lawyer should consider all circumstances then prevailing and act with care to safeguard and advance the interests of his client. But obviously a lawyer cannot perform any act or make any decision which the law requires his client to perform or make, either acting for himself if competent or by a duly constituted representative if legally competent."

1.14:200   Problems in Representing a Partially or Severely Disabled Client

Primary Illinois References: IL Rule 1.14
Background References: ABA Model Rule 1.14, Other Jurisdictions
Commentary: ABA/BNA § 31:601, ALI-LGL § 35, Wolfram § 4.4

Determining whether an attorney can continue to represent a client with whom he engages in sexual relations is one area of concern. While this rule may have been implemented originally to address minors and the mentally impaired, it nonetheless may reach a broader, perhaps unexpected, class of individuals. One possible extension includes clients who have sexual relations with their attorney. The Illinois Supreme Court has found violations of the Rules of Professional Conduct where an attorney took advantage of his position to have sex with his clients. See In re Rinella, 677 N.E.2d 909 (Ill. 1997). Even though the court recognized there is no rule that explicitly proscribes this type of sexual conduct, nevertheless, it found its authority in the preamble to the Rules . See Rinella, 677 N.E.2d at 914.

Conceivably, a violation of Rule 1.14 may exist where an attorney and client have sexual relations and the client's ability to make adequately considered decisions becomes impaired. The ABA considers such a situation in a Formal Opinion. See ABA Formal Opinion 92-364 (July 6, 1992). The ABA cites its model rule 1.14 and finds where an attorney has sexual relations with his client, "the fiduciary obligation inherent in the lawyer's role is heightened if the client is emotionally vulnerable in a way that affects the client's ability to make reasoned judgments about the future." See id.

However, because there is no explicit language in the Rules regarding sexual relations with a client, some confusion as to what constitutes inappropriate sexual conduct exists. For example, must an attorney having a sexual relationship with someone never be allowed to perform legal services for that person? The dissent in Rinella confronts this problem by suggesting a separate rule which would specifically address sexual relations with clients. See Rinella, 677 N.E.2d at 917 (Freeman, J., dissenting). Moreover, the ISBA petitioned the Illinois Supreme Court to amend the Rules and adopt a new Rule 1.18. Entitled "Sexual Relations with Client," this proposed rule explicitly proscribed conduct such as that found in Rinella while being careful not to overstep or infringe on any other Rules . Perhaps to allow for unforeseen circumstances which may arise when an attorney has sexual relations with clients, the Illinois Supreme Court denied the petition. The Court maintains the Preamble to the Rules affords the Court the flexibility to fashion a necessary and deserving remedy. See Rinella, 677 N.E.2d at 914.

Balancing how far an attorney should maintain a lawyer-client relationship with whether an attorney should seek the appointment of a guardian or other protective action is another area of concern in representing a partially or severely disabled person. These concerns will be addressed below by analyzing how far an attorney should maintain a lawyer-client relationship in 1.14:300 and whether protective action should be obtained for a client who may be incompetent in 1.14:400.

1.14:300   Maintaining Client-Lawyer Relationship with Disabled Client

Primary Illinois References: IL Rule 1.14
Background References: ABA Model Rule 1.14(a), Other Jurisdictions
Commentary: ABA/BNA § 31:601, ALI-LGL § 35, Wolfram § 4.4

An attorney who maintains a client-lawyer relationship with a mentally impaired, incompetent or disabled client may owe a higher fiduciary duty to the client. In the seminal case in Illinois for maintaining a relationship with minors, the court held that because of the age of the clients, the lawyer owed them a high degree of trust and confidence. See In re Crane, 449 N.E.2d 94, 102 (Ill. 1983). The manner in which the attorney collected his fees from his clients who were minors was deemed improper by the court. See id. Because of this higher fiduciary duty for lawyers representing minors, the court held that the lawyer should communicate and explain fully the basis and rate of his fees. See id.

The attorney also owes a higher duty to clients who fall on the opposite end of the spectrum with regard to age: the elderly. See In re Gerard, 548 N.E.2d 1051 (Ill. 1989); See also ABA Formal Opinion 96-399 (January 18, 1996). When a lawyer fails to communicate and explain fully to his elderly client, the attorney breaches his fiduciary duties. See Gerard, 548 N.E.2d at 1061. Furthermore, lawyers should be especially mindful of their elderly clients' "impaired ability to make adequately considered decisions in connection with the representation." See ABA Formal Opinion 95-393 (April 24, 1995).

The court also upheld a reciprocal sanction from the sister state of Missouri where an attorney failed his fiduciary obligation owed to his mentally impaired client. See In re Donald Martin Witte, 458 N.E.2d 484, 486 (Ill. 1983). The attorney maintained his duty owed to his client was less because of his client's inability to fully comprehend what was taking place. The Missouri Court reasoned the opposite was true: "For every degree that [the attorney] by his testimony and evidence proved a less than normal mental and functional capacity on the part of his client, . . . he raised by an equivalent degree the standard of conduct which this Court must require of him." Id.

For additional discussion of "Maintaining Client-Lawyer Relationship with Disabled Client" refer to section 35 of the Restatement (Third) of the Law Governing Lawyers (proposed Final Draft No. 1, March 29, 1996).

1.14:400   Appointment of Guardian or Other Protective Action

Primary Illinois References: IL Rule 1.14
Background References: ABA Model Rule 1.14(b), Other Jurisdictions
Commentary: ABA/BNA § 31:601, ALI-LGL § 35, Wolfram § 4.4

Determining whether protective action should be obtained for a client who may be incompetent, the least restrictive measures must be considered. See ABA Formal Opinion 96-404 (August 2, 1996).

While circumstances may dictate a guardian to be appointed control over every aspect of the client's life, most situations would allow for a guardian to manage the client's financial affairs and the client to manage his personal affairs. See id.

When it is concluded that the least restrictive measure requires a guardian to be appointed for the client, the lawyer may file the petition for guardianship. See id. However, this presents problems for the lawyer. See id. The lawyer may feel awkward being the guardian and trying to maintain the lawyer-client relationship. See id. It is common to have someone else file the petition for guardianship. See id. Notwithstanding, "1.14 does not authorize a lawyer to represent a third party in seeking to have a court appoint a guardian for his client." Id. "If the lawyer decides to file a guardianship petition, it must be on his own authority under Rule 1.14 and not on behalf of a third party, however well-intentioned." Id. Still, the lawyer may consider requests made by family members or other interested persons acting in the best interests of his client. See id.

For additional discussion of "Appointment of Guardian or Other Protective Action" refer to section 35 of the Restatement (Third) of the Law Governing Lawyers (proposed Final).