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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

1.16   Rule 1.16 Declining or Terminating Representation

1.16:100   Comparative Analysis of Illinois Rule

Primary Illinois References: IL Rule 1.16
Background References: ABA Model Rule 1.16, Other Jurisdictions
Commentary:

1.16:101      Model Rule Comparison

IRPC 1.16 is a redraft of Illinois Code 2-110. The Illinois Code language, unlike MR 1.16, appears to deal solely with litigated matters, with other engagements as an afterthought in Illinois Code 2-110(c). The drafters of the IRPC thought that a more general structure of the Rule was to be preferred. On the other hand, it was felt that the precepts and conditions of the Illinois Code were more precise than those of MR 1.16.

IRPC 1.16(b)(1)(B), (C) and (D) involve the vexing problem of a lawyer who finds the client engaged in fraudulent or criminal conduct, and must decide when to withdraw, and whether to do so silently or otherwise. See IRPC 1.6(c)(1) and (2).

1.16:102      Model Code Comparison

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

1.16:200   Mandatory Withdrawal

Primary Illinois References: IL Rule 1.16
Background References: ABA Model Rule 1.16(a), Other Jurisdictions
Commentary: ABA/BNA § 31:1001, ALI-LGL § 44, Wolfram § 9.54

1.16:210      Discharge by Client

See In re Smith, 659 N.E.2d 896 (Ill. 1995) (noting this rule "provides a measure of protection to clients from the severe consequences of the loss or erosion of the trust which lies at the heart of the attorney client relationship."). Corporate (inside) counsel may be discharged even if the discharge is in retaliation for the counsel’s refusal to breach his ethical duties. Balla v. Gambro, 584 N.E.2d 104 (Ill. 1992); Herbster v. North American Co., 501 N.E.2d 343 (Ill. App. 1st Dist. 1986).

1.16:220      Incapacity of Lawyer

Pursuant to IRPC 1.16(a)(3), a lawyer shall withdraw from employment if the lawyer's mental or physical condition renders it unreasonably difficult to carry out employment effectively. Section 1.16(a)(2) of the Model Rules of Professional Conduct is parallel to the IRPC 1.16 (a)(3) and states that a lawyer shall withdraw from representation of a client if the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client. MR 1.16(a)(2) recognizes that a lawyer who is too ill to properly represent a client is at least temporarily unfit to begin or continue a client-lawyer relationship. 1 Geoffrey C. Hazard, Jr. And W. William Hodes, The Law of Lawyering § 20.5 at 20-8 (3d ed. 2001). In a way, this rule is self-explanatory in that such a lawyer by definition is not capable of providing the level of representation required under the Model Rules. See id. MR 1.16(c) acts to qualify MR 1.16(a) by stating that a tribunal might order the lawyer to continue representation despite good cause for ending it. Consequently, a lawyer involved in litigation must make a motion or petition to withdraw.

Illinois Supreme Court Rule 13 sets out the procedure that an attorney is required to follow when withdrawing from a case. An attorney may not withdraw from a case without leave of court and notice to all parties of record. A motion for leave to withdraw must be in writing and the motion may be denied by the court if granting it would cause delay or would otherwise be inequitable. An attorney must give his or her client reasonable notice of the time and place of the presentation of the motion to withdraw by personal service or certified mail. That notice must advise the client to retain other counsel or file a supplemental appearance with the court within twenty-one days after the entry of the order of withdrawal. See also N.Dist. LR83.17 MR 1.16(d) requires a lawyer to mitigate harm to clients when representation terminates, regardless of whether the withdrawal is mandatory or permissive. This rule applies even if the client unjustly caused the termination. MR 1.16 (d) lists some example steps to take to mitigate harm such as giving reasonable notice to the client, allowing time for employment of other counsel, and surrendering papers and property to which the client is entitled.

Although lawyers are required to withdraw and mitigate harm to clients when doing so, many do not because they are in denial or are simply unaware of their problems. Lawyers who suffer from bipolar disorder and depression may not understand their actions or inaction. Similarly, a hallmark trait of all alcoholics is denial that they cannot control their drinking and they refuse to admit that there is a problem. See Blane Workie, Chemical Dependency and the Legal Profession: Should Addiction to Drugs and Alcohol Ward Off Heavy Discipline?, 9 Geo. J. Legal Ethics 1357, 1361-62 (1996). In fact, "alcoholics are known for denying that there is a problem even when faced with grave personal and professional consequences." Id. As a result, many attorneys do not realize or will not admit that they need to withdraw from representation.

Although many disciplinary proceedings and malpractice cases involve mental and physical incapacity, few actually deal with the lawyer's failure to withdraw because of such impairment. When charges or complaints are filed, they tend to focus more on the actual misconduct which arose out of the impairment and not on the violation of the mandatory withdrawal requirement. When MR 1.16(a)(3) is implicated, it is often coupled with complaints involving negligence, fraud, misrepresentation, and incompetence. For example, in In re O'Connor, the respondent was brought before the ARDC for the neglect of at least five matters, which included conversion of client funds, the making of improper payments, and engaging in dishonesty. 2000 WL 730318, at *1. The respondent's misconduct occurred during a time in which he suffered from alcoholism, depression, and self-defeating personality disorder. He was found to have engaged in misconduct including failure to file motions to withdraw and was suspended for three years.

Another disciplinary proceeding that dealt with the failure to withdraw from representation because of impairment is In re Berkos, 444 N.E. 2d 150, (Il.Sup.Ct. 1982). The Administrator of the ARDC filed a two-count complaint charging the respondent with multiple acts of misconduct including fraud, dishonesty, neglect, and unethical conduct. The facts of the case reveal that the respondent was treated for depression as a result of litigation over an unsuccessful business venture. For the next two to three years, the respondent was frequently away from his office and his alcohol consumption increased. During this period, the respondent represented a client on charges of aggravated assault and armed robbery. The client was found guilty and the respondent filed a notice of appeal. Nothing was done on the appeal and the client was never contacted regarding status. The respondent was in and out of the hospital at this time and his secretary acted without his authority or consent by intercepting correspondence and meeting with the client's mother. The Court found that the respondent failed to adequately supervise his employee and neglected to file either a withdrawal or a substitution of attorney. The Court explained that because the respondent acknowledged that he never followed through with an appeal, he should have withdrawn from the case. The Court stated that "[h]e must have realized that his failure to withdraw would result in the dismissal of the appeal for want of prosecution." Some courts have found that an incapacitated attorney's attempt to mitigate harm to his or her client by attempting to obtain substitute counsel acts as a mitigating factor in determining that attorney's punishment. For example, in In re Thomson, the respondent was accused of various forms of client neglect ranging from failure to file petitions to failure to refund fees. 2000 WL 1844452, at *1. The respondent admitted to the factual allegations but asserted that he was ill and unavailable and that his client files were left with a colleague with instructions to handle the cases. The respondent was an alcoholic for over two decades with variable periods of drinking activity. In late 1997, the respondent had various drinking bouts and eventually went into hospital detoxification. While in the hospital, the respondent called an attorney with whom he shared his office suite and gave him a list of client matters to attend to. The respondent relapsed many times into 1998 and checked himself in and out of treatment programs. Through this entire time, the respondent thought that his client's matters were being handled. In early 1998, the respondent learned that there may be ARDC problems and contacted the Lawyer's Assistance Program. It was recommended that he retain another attorney to make sure that all the legal matters were handled. The respondent however did not file an actual withdrawal with the court or notify the clients of his withdrawal. The Court looked favorably on the fact that the attorney attempted to and finally did receive successful alcohol treatment. More importantly, the Court found that the attorney tried to remove himself from his cases and tried to assure that the caseload was cared for.

Punishments for failure to withdraw when mentally or physically incapacitated range from simple reprimand to disbarment. Physical and mental incapacity often acts as mitigation when courts are determining proper sanctions. In the case of In re Berkos, the Court looked at the fact that the respondent showed a medical history of physical and mental illness during the pendency of the case and said that the circumstances mitigate what might otherwise have resulted in more severe disciplinary action. 444 N.E. 2d at 153. The respondent was suspended for three months and treatment was not recommended or required. By contrast, in more recent cases, punishment often includes requiring drug, alcohol or psychological treatment and proof of rehabilitation. For example, in In re O'Connor, the respondent was punished with a three-year suspension in light of his current need for treatment and for his impairments. 2000 WL 730318 at *10. The Court stated that "a suspension alone, without proof of rehabilitation prior to its termination, would not properly protect the public and the integrity of the profession." Id. Also, in supra In re Thomson, the Court suspended the respondent for three years, stayed the suspension, and placed him on probation for three years. The probation would terminate after three years without further order if the respondent successfully completed his term and met conditions including meeting with probation officers, abstinence from alcohol, and continuing alcohol treatment.

Where the problem is a medical condition or where problematic behavior is caused by a medical condition, the Americans with Disabilities Act may be implicated. The ADA has been construed to include a wide array of problems, including mental difficulties, hearing or visual impairments, and the "disability" of drug or alcohol addiction. The ADA has made the greatest impact in punishment proceedings in regards to drug or alcohol addiction. Respondents have argued that where misconduct is caused by an addiction that qualifies as a "disability", punishment is impermissible. Courts have distinguished between disabilities that can be cured and those that cannot when making decisions regarding sanctions, applying more stringent sanctions when the disability is presumed incurable. In In re Appler, the District of Columbia Appellate Court disbarred a lawyer who engaged in serious misconduct due to the lawyer's bipolar disorder or manic depression. 669 A.2d 731 (D.C. 1995). The court found no reason to believe that the misconduct would stop and therefore believed that disbarment was necessary, as opposed to an addiction that can be cured. The ADA is also found not to impede discipline when causation is at issue. In People v. Reynolds when the respondent lawyer could not demonstrate that his misconduct could be attributed to his disability of depression, the ADA had no application. 933 P.2d 1295 (Colo. 1997).

Treatment for lawyers with substance abuse problems is encouraged and is often required as a condition of reinstatement in lieu of disciplinary proceedings. Illinois maintains a counseling program for such lawyers called Lawyer's Assistance Program, Inc. The Rules of the Supreme Court of Illinois describe LAP and also provides contact information. According to the rules, LAP's purpose is to prevent a damaged career by giving timely and confidential assistance to further the recovery of personal health and professional confidence. The program provides consultation, information, referrals, education and peer assistance. It also coordinates interventions. (Hotline:1 800-LAP-1233) The Illinois Supreme Court has given official recognition of LAP. It has made accommodations for this program by enacting IRPC 1.6(d) and 1.6(e). These two provisions deal with confidentiality of information issues. IRPC 1.6(d) states that "the relationship of trained intervenor and a lawyer, judge, or law student, who seeks or receives assistance through the Lawyer's Assistance Program, Inc., shall be the same as that of lawyer and client for purposes of the application of Rule 8.1, Rule 8.3 and Rule 1.6." This means that the lawyer is exempt from the rule against disclosure while in the course of alcohol or drug treatment. IRPC 1.6(e) states that any information received by a lawyer in a formal proceeding before a trained intervenor of the LAP will be deemed to have been received from a client. Any information provided for purposes of treatment is confidential. See also Ill. Sup.Ct. Rule 758 (Mental Disability or Addiction to Drugs or Intoxicants).

IRPC 1.16(a)(3) implicates Rule 776 of the Supreme Court of Illinois Rules on Admission and Discipline of Attorneys, which deals with appointment of receivers in certain cases. The rule states that when it comes to the attention of a circuit court from any source that a lawyer in that circuit is unable to properly discharge responsibilities to clients due to disability, disappearance, or death and that no partner, associate or other party capable of taking on responsibility exists, the presiding judge may appoint an attorney from that circuit to serve as a receiver to perform certain duties. Such duties include taking custody of and making inventory of the lawyer's files, notifying clients in pending cases as to the lawyer's disability or inability to continue legal representation, and recommending prompt substitution of attorneys. In addition, the receiver must take appropriate steps to protect the interest of the attorney, the clients, and other affected parties. The receiver is not regarded as having an attorney-client relationship with the clients of the disabled, absent or deceased lawyer, but the receiver is bound by the obligations of confidentiality with respect to information acquired as receiver.

1.16:230      Withdrawal to Avoid Unlawful Conduct

Pursuant to IRPC 1.16(a)(2), a lawyer shall withdraw from employment if the lawyer knows or reasonably should know that the continued employment would violate any of the Rules of Professional Responsibility. Although IRPC 1.16(a)(2) is broad in scope, reported cases have been limited to violations of the counterparts to IRPC 3.7 and 1.2(d).

For cases in which a lawyer called as a witness must withdraw, see People v. Blake, 534 N.E.2d 415 (Ill. App. 1 Dist. 1989) (impeachment of prosecution's witness by defense counsel, as to statements made to defense counsel during private interview, was not allowed even though defense counsel moved to withdraw from case, when court denied defense counsel's motion to withdraw); People v. Hill, 371 N.E.2d 1257 (Ill. App. 4th Dist. 1978) (impeachment of prosecution's witness by defense counsel, as to statements made directly to defendant's counsel during a private interview, created the possibility that defendant's counsel might have to testify and as such impeachment of prosecution's witness would be allowed only if defendant's counsel withdrew from the case). People v. Norris, 361 N.E.2d 105 (Ill. App. Ct. 1st Dist. 1977) ( public defender must withdraw when he learns or it is obvious that he or one in his office should be called as a witness on behalf of his client); but see People v. Banks, 520 N.E.2d 617, 619-20 (Ill. 1987) (contrary to rules for private law firms, disqualification of assistant public defender for conflict of interest will not necessarily disqualify all members of that office) (collecting cases).

For cases in which a lawyer participated in, assisted or advised a client in furtherance of a crime, see In re Masters, 438 N.E.2d 187 (Ill. 1982) (lawyer suspended when he advised client to comply with an extortion demand and served as intermediary in making payments); In re Rosenthal, 382 N.E.2d 257 (Ill. 1978) (lawyer disbarred when he maintained contact with extortionist, freely aided the extortionist in communicating his demands to the client, and did not withdraw when it became apparent the client would comply with the extortion demand, even though lawyer advised against it); Balla v. Gambro, Inc., 584 N.E.2d 104 (Ill. 1991) ("In-house counsel do not have a choice of whether to follow their ethical obligations as attorneys licensed to practice law, or follow the illegal and unethical demands of their clients."). In re Charles Porcelli, 397 N.E.2d 830 (Ill. 1979) (noting that in the rarest of circumstances a lawyer may shield himself in disciplinary proceedings with the defense of entrapment).

For cases in which a conflict of interest mandates withdrawal see People v. Willis, 479 N.E.2d 1184 (Ill. App. Ct. 2nd Dist. 1985) (public defender required to withdraw because same defender's representation of defendant in both initial plea bargain and hearing on motion to withdraw plea created a conflict of interest) (but see People v. Banks, supra); ISBA 90-26 (March 9, 1991) (Upon learning of a conflict of interest, a lawyer should immediately inform his or her client and if consent is not secured for continued representation, should immediately withdraw). ISBA 95-1 (July 14, 1995) (noting the fact that a corporation's lawyer is related to its president and principal shareholder does not, standing alone, create a conflict of interest that would require withdrawal under this section).

1.16:240      Legal Action for the Purpose of Harassing or Maliciously Injuring Any Person

A lawyer representing a mother and a minor in a paternity suit may be required to withdraw from representing the mother when the mother insists on a course of action that is contrary to the best interests of the minor. ISBA 91-8 (October 25, 1991).

1.16:300   Permissive Withdrawal

Primary Illinois References: IL Rule 1.16
Background References: ABA Model Rule 1.16(b), Other Jurisdictions
Commentary: ABA/BNA § 31:1101, ALI-LGL § 44, Wolfram § 9.5.3

A client's filing of an ARDC Complaint against his attorney may require the attorney to withdraw from further representing the client. See Reed Yates Farms, Inc. v. Yates, 526 N.E.2d 1115 (Ill. App. Ct. 4th Dist. 1988) (noting the filing of a complaint "which impugns the attorney's integrity . . . undermines the mutual trust and confidence essential to the attorney-client relationship."); But see also ISBA 89-11 (1989) (maintaining that a lawyer may continue in the representation of a client even where the client has a disciplinary complaint pending against the lawyer with regard to the very proceeding involved in the continuing representation).

1.16:310      Withdrawal to Undertake Adverse Representation

Once an attorney has terminated his relationship with a client, such as by withdrawing from representation of that client, if the attorney “received the confidence of a client, [then] he cannot serve adverse interests.” People v. Coslet, 364 N.E.2d 67 (Ill. 1977).

1.16:320      Circumstances Justifying Discretionary Withdrawal

Rule 1.16(b)(1) enumerates the following six circumstances which may permit a lawyer to withdraw because of client behavior:

(a)   Client insists upon claim or defense not warranted under existing law with no reasonable argument for change in law.

(b)   Client seeks illegal course of conduct.

(c)   Client insists lawyer pursue illegal or rule-prohibited conduct.

(d)   Client makes it difficult for lawyer to carry out employment effectively.

ISBA 90-9 (January 1991) (noting that an illegal payment to the natural mother, during an adoption proceeding, contrary to the lawyers prior warnings that such payment was illegal, warranted the lawyers' permissive withdrawal under this section).

(e)   Client insists on conduct contrary to judgment or advice of lawyer even though the conduct is not prohibited.

See also Custom Builders, Inc. v. Clemons, 367 N.E.2d 537 (Ill App. Ct. 3 Dist. 1977) (granting lawyers motion to withdraw on the grounds that "counsel and defendant have reached irreconcilable differences in the conduct of the case.").

(f)   Failure to pay lawyers expenses or fees.

A client's failure to pay legal expenses or fees provides the basis for an attorney's request to withdraw. See Reed Yates Farms, Inc. v. Yates, 526 N.E.2d 1115 (Ill. App. Ct. 4 Dist. 1988) (lawyer who had not been paid for legal services rendered more than three months after demand on client had good cause to withdraw). However, the granting of a motion to withdraw is discretionary, People v. Maraviglia, 636 N.E.2d 717, 723 (Ill. App. Ct. 1 Dist. 1994) (lawyer's ability to withdraw is limited by Supreme Court Rule 13(c)(3) which states that a motion to withdraw may be denied by the court if the granting of it would be inequitable); as such, a lawyer may be required to continue to represent the client. Id. (denying lawyer's motion to withdraw on ground that client had not paid his bill for legal services and disbursements, where written motion to withdraw was not filed and served until almost two years after client allegedly stopped paying for legal services, billing statement supporting motion indicated that attorney had not billed client during that entire period, and attorney had obtained at least five continuances in order to prepare court-ordered post trial memorandum).

Rule 1.16(b)(2), (3) and (4) permits withdrawal on account of lawyer's inability to work with co-counsel;

Client's consents to lawyer's request, after "disclosure."

(A client may consent to a lawyer's withdrawal as long as the client makes an informed decision; the burden to insure an informed decision by the client is on the lawyer; ISBA 95-13, and in addition, a lawyer may reach a prior agreement with the client to limit his or her scope of representation and withdraw at a certain point in the proceedings, ISBA 849); or

The lawyer reasonably believes tribunal will find the existence of good cause.

Reed Yates Farms, Inc. v. Yates, 526 N.E.2d 1115 (Ill. App. Ct. 4th Dist. 1988) (lawyer has good cause to withdraw from representing client when the client filed an ARDC complaint against the lawyer impugning the attorney's integrity).

If the matter is before a tribunal, the tribunal's consent to withdrawal is required. See also Illinois Supreme Court Rule 13 for civil cases, require written notice to all parties.

1.16:400   Order by Tribunal to Continue Representation

Primary Illinois References: IL Rule 1.16
Background References: ABA Model Rule 1.16(c), Other Jurisdictions
Commentary: ABA/BNA § 31:1101, ALI-LGL § 44, Wolfram § 9.5.1

Once a court denies an attorney’s motion to withdraw from representation in a matter, it is within the court’s inherent power to hold that attorney in contempt of court for failing to fulfill any orders concerning continued representation of the client. People ex rel. Burris v. Maravigilia, 636 N.E.2d 717 (Ill. App. 1st Dist. 1993).

1.16:500   Mitigating Harm to Client Upon Withdrawal

Primary Illinois References: IL Rule 1.16
Background References: ABA Model Rule 1.16(d), Other Jurisdictions
Commentary: ABA/BNA § 31:1201, ALI-LGL §§ 44, 45, Wolfram § 9.5.1

Although a lawyer may withdraw where the client consents after disclosure, the lawyer must take reasonable steps to avoid foreseeable prejudice to the client. Thus a lawyer must ensure that there is due notice, time for replacement counsel and delivery of all client papers and property. ISBA 95-13 (January 1996) (holding a lawyer may not attempt to withdraw without consent solely to preserve opportunities to develop new clients). Generally a lawyer may retain a client's papers or property only if asserting a common law or statutory lien. ISBA 94-14 (January 1995) (the lawyer may make copies of all original material, supplied by the client, at the lawyer's expense and may deliver copies of other materials the client is entitled to receive to the client at the client's expense). In addition, the duty to mitigate harm equally applies even if the lawyer has limited the scope of his or her representation at the outset of the relationship. ISBA 849.

1.16:600   Fees on Termination

Primary Illinois References: IL Rule 1.16
Background References: ABA Model Rule 1.16(d), Other Jurisdictions
Commentary: ABA/BNA §§ 31:701, 31:1001, 31:1101 , ALI-LGL §§ 43, 52, Wolfram § 9.5

IRPC 1.16(e) requires a lawyer, after mandatory or permissive withdrawal, to promptly refund to the client any unearned portion of the fee the client paid in advance to the lawyer. The lawyer is compensated on a quantum meruit basis for the legal services which the lawyer actually performed on the client's behalf. In re Smith, 659 N.E.2d 896 (Ill. 1995). The quantum meruit rule applies even if the lawyer takes the case under a contingent fee arrangement. Kannewurf v. Johns, 632 N.E.2d 711 (Ill. App. 5th Dist. 1994) (clients conduct rendered it unreasonably difficult for the lawyer to carry out the employment effectively); Reed Yates Farms, Inc. v. Yates, 526 N.E.2d 1115 (Ill. App. 4th Dist. 1988) (client failed to pay past due retainer fees, client filed disciplinary action against lawyer); Leoris & Cohen, P.C. v. McNiece, 589 N.E.2d 1060 (Ill. App. 2nd Dist. 1992) (complete breakdown in lawyer-client relationship). In addition, if the client terminates the lawyer for the sole purpose of avoiding the lawyer's fee, the lawyer will recover. Heiden v. Ottinger, 616 N.E.2d 1005 (Ill. App. 2nd Dist. 1993) (a client may not attempt to discharge a lawyer for the sole purpose of hindering his recovery of payment for the services rendered).

1.16:610      Termination of Lawyer's Authority [see 1.2:270]

Once the attorney-client relationship has been terminated, such as by the withdrawal of counsel, the attorney no longer has any authority to represent the client (Holmgren v. Newcom, 272 N.E.2d 820 (Ill. App. 1st Dist. 1971)) and cannot be recognized by the court as a representative of that client. Meeker v. Gray, 492 N.E.2d 508 (Ill. App. 5th Dist. 1986).