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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

IV. TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS

4.1   Rule 4.1 Truthfulness in Statements to Others

4.1:100   Comparative Analysis of Illinois Rule

Primary Illinois References: IL Rule 4.1
Background References: ABA Model Rule 4.1, Other Jurisdictions
Commentary:

4.1:101      Model Rule Comparison

IRPC 4.1 is MR 4.1, modified in the preamble and in (a) (with respect to knowledge of falsity).

Note that the lawyer's silence is commanded in IRPC 4.1(b) only where IRPC 1.6 is without exceptions. Where, under IRPC 1.6, a lawyer "may" disclose material (or where he or she must disclose), IRPC 4.1(b) would control.

4.1:102      Model Code Comparison

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

4.1:200   Truthfulness in Out-of-Court Statements

Primary Illinois References: IL Rule 4.1
Background References: ABA Model Rule 4.1, Other Jurisdictions
Commentary: ABA/BNA § 71:201, ALI-LGL § 157, Wolfram § 13.5

A lawyer has a duty to disclose the death of a client that occurs during the course of settlement negotiations in a pending personal injury action. ISBA 96-3 (July 1996). The lawyer is required to disclose the client's death the next time the lawyer communicates with opposing counsel. Id. Disclosure is required because a client's death is a material fact within the meaning of this section. Id. Failure to make such a disclosure is "deceit or misrepresentation" within the meaning of IRPC 8.4(a)(4). See also ISBA 95-10 (January 1996) (a lawyer who makes a material change in a document submitted by another lawyer for signature should disclose the change when returning the signed document; failure to do so may constitute professional misconduct); In the Interest of M.K., E.K. et al. v. Corman, 672 N.E.2d 271 (Ill. App. 1st Dist. 1996) (letter from counsel to district judge regarding pending case carried with it an "ethical obligation regarding truthfulness."). See also ISBA 93-14 (March 1994) (in letter from attorney to insured indicating personal beliefs about insurance adjuster, "caution should be exercised so that it does not appear that a statement of fact is being made.")

See ISBA 91-24 (April 3, 1992). (Attorney should disclose to probate court information about guardian taking property from estate he or she represents which attorney believes to be improper.)

See ISBA 93-16 (May 1994). (Once attorney possesses confidential information about a client's tax violations, attorney must avoid making false representations about such matters in the future on behalf of the client. Moreover, attorney must ensure in future representations that information is not used by client to perpetuate a fraud on third persons.)

4.1:300   Disclosures to Avoid Assisting Client Fraud [see also 1.6:370]

Primary Illinois References: IL Rule 4.1
Background References: ABA Model Rule 4.1(b), Other Jurisdictions
Commentary: ABA/BNA § 71:203, ALI-LGL §§ 117A, 151, Wolfram §§ 12.6, 13.3

IRPC 4.1 differs from MR 4.1 in that MR 4.1's placement of "knowingly" applies to both subsections (a) and (b), while the IRPC includes the knowledge element only in subsection (a). Through inept drafting therefore it appears that an attorney can violate IRPC 4.1(b) by failing to disclose a material fact necessary to prevent the client from committing a criminal or fraudulent act even if the lawyer had no actual knowledge.

Rule 4.1(b) is expressly limited by Rule 1.6. Therefore, disclosure of a confidential and material fact is required and in fact allowed only when two conditions are satisfied: first, disclosure must be "necessary to avoid a criminal or fraudulent act by a client;" and second, either Rule 1.6(b) or (c) must apply to remove the controlling prohibition against disclosure found in Rule 1.6(a).

4.2   Rule 4.2 Communication with Person Represented by Counsel

4.2:100   Comparative Analysis of Illinois Rule

Primary Illinois References: IL Rule 4.2
Background References: ABA Model Rule 4.2, Other Jurisdictions
Commentary:

4.2:101      Model Rule Comparison

IRPC 4.2 is Illinois Code 7-104(a), modified.

The Illinois Code seems more precise than MR 4.2.

This Rule is at a point of tension in two situations: first, in the corporate context, are all, or some, employees "represented" by the corporation's counsel and if some are, are past employees "represented"? Second, in the criminal context, does the prosecutor have to accept the statement of an attorney that he or she represents the accused?

4.2:102      Model Code Comparison

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

4.2:200   Communication with a Represented Person

Primary Illinois References: IL Rule 4.2
Background References: ABA Model Rule 4.2, Other Jurisdictions
Commentary: ABA/BNA § 71:301, ALI-LGL § 158-162, Wolfram § 11.6.2

The purpose of IRPC 4.2 in civil cases is to protect a party from the superior legal skill and acumen of the opponent's attorney. The rule applies to an attorney who is representing himself, prohibiting him from contacting the other party directly. In In re Morton Allen Segall, 509 N.E.2d 988 (Ill. 1987), the court stated:

A party, having employed counsel to act as an intermediary between himself and opposing counsel, does not lose the protection of the rule merely because opposing counsel is also a party to the litigation. Consequently, an attorney who is himself a litigant may be disciplined . . . when . . . he directly contacts an opposing party without permission from that party's counsel.

509 N.E.2d at 990.

However, not all communications between a lawyer and a person represented by counsel will result in a violation of IRPC 4.2. No violation arises from de minimis communications which do not prejudice an opponent. Petty v. First National Bank of Geneva, 588 N.E.2d 412 (Ill. App. 2d Dist. 1992) (rule was not violated when plaintiff's counsel asked a person represented by another attorney to join a lawsuit as a plaintiff because communication was de minimis and did not prejudice the defendants). Also, the rule will not be violated when a lawyer communicates with a represented party on a matter other than the subject of the lawsuit. Mondelli v. Checker Taxi Co., Inc., 554 N.E.2d 266 (Ill. App. 1st Dist. 1990) (defense attorney who sent a private investigator into plaintiff's beauty shop did not violate the rule because statements obtained from plaintiff were ordinary "shop talk" between customer and hairdresser). But see ISBA 96-09 (May 16, 1997) (attorney violated rule when he contacted former client to protect his claim for fees and to convince the client to allow him to resume handling the case).

The rule prohibits communications when the lawyer knows or reasonably should know that the person is represented by counsel. Heiden v. Ottinger, 616 N.E.2d 1005 (Ill. App. 2d Dist. 1993) (attorney who represented the father in a paternity suit violated the rule when he drew up an agreement which was signed by the father and the mother, a day later the mother drew up a letter discharging her attorney, and two days later the agreement was approved by a court, all without the mother's attorney present); see also Bruske v. Arnold, 174 N.E.2d 850 (1969) (holding as inadmissible evidence obtained when the plaintiff's investigator went to defendant's home with a court reporter and took statement from the defendant without notice to the defendant's counsel). See also ISBA 94-24 (May 17, 1995) (attorney violated rule when he directly negotiated settlement with party in divorce action after party's attorney had filed an answer in the action). However, when a lawyer has no reason to know that a person is represented, the communications will not be in violation of the rule. Estate of Hader, 449 N.E.2d 540 (Ill. App. 1st Dist. 1983) (attorney who refused to communicate with bank employees would not have been in violation of the rule had he talked to employees when the bank did not have attorney of record). See also ISBA 93-14 (March 1994) (attorney communicating with insured before the insured was represented by counsel but after the attorney had dealt with insurance adjuster not in violation of the rule).

In criminal cases, IRPC 4.2 serves to protect a defendant from the danger of being tricked into giving his case away by the prosecutor's artfully crafted question. People v. White, 567 N.E.2d 1368 (Ill. App. 5th Dist. 1991). The rule is not co-extensive with the Sixth Amendment, but provides protection to a criminal suspect prior to the filing of formal charges. However, the rule is only violated when the prosecutor is intimately involved in the investigation. Nevertheless, the rule is violated by an investigator who can be considered the alter ego of the prosecutor. A prosecutor's mere knowledge of an investigative procedure is not sufficient to make the investigator the alter ego of the prosecutor because the knowledge does not present the danger that a defendant will be subjected to the prosecutor's superior legal skill and acumen. The rule adequately protects the criminal suspect from the superior legal skill of the prosecutor while allowing government investigators to employ legitimate investigative techniques to solve crimes and develop evidence necessary for a successful prosecution. Id. An assistant United States attorney's non-custodial communication with a criminal suspect, for the purpose of confronting the suspect with the evidence against him and discussing his cooperation, violates the anti-contact rule when the attorney knows that the suspect is represented by counsel. U.S. v. Ward, 895 F. Supp. 1000 (N.D. Ill. 1995).

Illinois Attorney Registration and Disciplinary Commission Hearing Board, Review Board, and Illinois Supreme Court opinions construing Rule 4.2 include: In re Parolin, 95 CH 411; In re Landry, 95 CH 446, July 3, 1997; In re Feldman, 96 CH 427, August 26, 1997; In re Sorkin, 91 CH 434; In re LaVelle, 94 CH 187, November 3, 1995; In re Twohey, 95 SH 872, September 8, 1997.

4.2:210      "Represented Person" (Contact with an Agent or Employee of a Represented Entity)

Illinois still uses the "control group" test to determine whether an employee of a corporate party is represented by counsel. Fair Automotive Repair, Inc. v. Car X Service Systems, Inc., 471 N.E.2d 554 (Ill. App. Ct. 2d Dist. 1984). A corporation's control group is defined as top management personnel who have the responsibility of making final decisions and other employees whose advisory's roles to top management are such that a decision would not ordinarily be made without the person's advice or opinion. Id. In Fair Automotive, an attorney was allowed to communicate with a muffler repair shop's employees because they did not have sufficient decision making or advisory responsibility to put them in the control group. Id. But see In re Air Crash, 909 F. Supp. 1116, 1120-22 and n.8 (N.D. Ill. 1995) (holding that a questionnaire distributed to all pilots of named entity airline company was improper under local federal district court version of Rule 4.2, and suggesting that under the Illinois rules the result would be the same because the narrower "control group" test from Fair Automotive was used before the adoption of Rule 4.2).

4.2:220      Communications "Authorized by Law" -- Law Enforcement Activities

Pre-indictment, non-custodial contacts with a represented person fall within the "authorized by law" exception to IRPC 4.2. United States v. Ward, 895 F. Supp. 1000 (N.D. Ill. 1995). Contacts with a represented person are legitimate investigative techniques and are authorized by law. Included in these investigations is the undercover taping of a suspect during the investigatory stage of a criminal proceeding. Id.

4.2:230      Communications "Authorized by Law" -- Other

Federal law may preempt the applicability of the Rules of Professional Conduct. In Harper v. Missouri Pacific Railroad Co., 636 N.E.2d 1192 (Ill. App. 5th Dist. 1994), the court held that a defendant's use of letters instructing plaintiff's counsel not to conduct interviews of plaintiff's employees without plaintiff's knowledge or consent was void because the Federal Employer's Liability Act contained purposely broad language providing a penalty for suppression of voluntary information incident to accidents, and thus preempted the Illinois Rules of Professional Conduct. A communication which is expressly ordered by a court also allows an attorney to communicate with a represented party without violating the rule. Weinstein v. Rosenbloom, 322 N.E.2d 20 (Ill. 1974), (Illinois Industrial Commission rule dealing with notice for continuance of trial which required attorney to directly send postcard to adverse party did not violate rule).

4.2:240      Communication with a Represented Government Agency or Officer

See ISBA 95-12 (Jan. 1996) (lawyer prohibited from directly communicating with represented city officials concerning pending ordinance violation prosecution against lawyer's clients where prohibition does not necessarily extend to communications concerning related controversy.)

4.2:250      Communication with a Confidential Agent of Non-Client

There appears to be no Federal or State judicial decisions or Illinois state bar association opinion on the subject.

4.3   Rule 4.3 Dealing with Unrepresented Person

4.3:100   Comparative Analysis of Illinois Rule

Primary Illinois References: IL Rule 4.3
Background References: ABA Model Rule 4.3, Other Jurisdictions
Commentary:

4.3:101      Model Rule Comparison

The IRPC is identical with the MR.

The parallel provision in the Illinois Code was 7-104(a)(2).

Some of the issues noted under IRPC 4.2 also arise in the context of IRPC 4.3. See In re Air Crash, 909 F. Supp. 1116 (N.D. Ill. 1995) (pointing out that inappropriate communications with employees of a named entity party violate Rule 4.3 as well as Rule 4.2, and extensively discussing both Rules ).

4.3:102      Model Code Comparison

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

4.3:200   Dealing with Unrepresented Person

Primary Illinois References: IL Rule 4.3
Background References: ABA Model Rule 4.3, Other Jurisdictions
Commentary: ABA/BNA § 71:501, ALI-LGL § 163, Wolfram § 11.6.3

An attorney may communicate with an unrepresented party provided that the attorney does not give advice or permit the assumption that the attorney is a disinterested party. ISBA 93-14 (March 1994).

Illinois Attorney Registration and Disciplinary Commission Hearing Board, Review Board, and Illinois Supreme Court opinions construing Rule 4.3 include: In re Sorkin, 91 CH 434.

4.4   Rule 4.4 Respect for Rights of Third Persons

4.4:100   Comparative Analysis of Illinois Rule

Primary Illinois References: IL Rule 4.4
Background References: ABA Model Rule 4.4, Other Jurisdictions
Commentary:

4.4:101      Model Rule Comparison

The IRPC 4.4 is identical with the MR.

The parallel provision in the Illinois Code was 7-102(a)(1).

It should be noted that this Rule is aimed at a lawyer's conduct involving persons who are neither clients nor courtroom opponents.

4.4:102      Model Code Comparison

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

4.4:200   Disregard of Rights or Interests of Third Persons

Primary Illinois References: IL Rule 4.4
Background References: ABA Model Rule 4.4, Other Jurisdictions
Commentary: ABA/BNA § 71:101, ALI-LGL §§ 163, 166, 167, Wolfram § 12.4.4

There is little Illinois case law dealing with MR 4.4. However, in the case of Castillo v. St. Paul Fire & Marine Insurance Co., 828 F. Supp. 594 (C.D. Ill. 1992), an attorney was disciplined for asserting a position and taking other action on behalf of a client when he knew or reasonably should have known that such action served only to harass the opposing attorney. In Castillo, in the first deposition of the attorney’s client one of the attorney’s associate made numerous objections so as to prevent any meaningful discovery from taking place. After reviewing the deposition testimony a judge denied many of the objections and ordered that the client again be made available for deposition. At this second deposition the attorney again objected to many questions and directed his client not to answer certain questions which had already been approved by the court. When opposing counsel indicated that he was going to place a telephone call to the judge the attorney threatened to “take care of that in the way one does who has possessory rights.” The court found that the attorney had no basis to prevent his client from answering the deposition questions and that his conduct violated the Code of Professional Responsibility. The attorney was suspended for a year.

In a proceeding before the Illinois Attorney Registration and Disciplinary Commission another attorney was found to have violated Rule 4.4 by using means in representing a client that had no substantial purpose other than to embarrass, delay and burden a third person. In the Matter of Terrence Michael Spears, 94 CH 579. In this case the attorney made numerous allegations that various judges and attorneys were engaged in illegal conspiracies. The attorney also stated in open court that a judge should be subjected to a psychiatric exam. The attorney was disbarred.

4.4:210      Cross-Examining a Truthful Witness; Fostering Falsity

There appears to be no Federal or State judicial decisions or Illinois state bar association opinion on the subject.

4.4:220      Threatening Prosecution [see 8.4:900]

In Illinois, a lawyer may not present, participate in presenting, or threaten to present criminal charges or professional disciplinary actions to obtain an advantage in a civil matter. Illinois Rules of Professional Conduct, Rule 1.2(e). This rule is in contrast to the former rule, DR 7-105, which prohibited only threats of criminal charges brought "solely" to gain an advantage. The Model Rules of Professional Conduct no longer include a provision prohibiting threats of criminal charges or disciplinary actions, because the Model Code prohibition was seen as overly broad, acting to prevent legitimate negotiating tactics. Illinois and other states, such as California, have retained the prohibition. Illinois' rule is broader than the former Model Code, in that it prohibits all threats of actions or charges to gain advantage, even if such charges could also be brought for reasons other than simply to gain an advantage.

In In re Madsen, 68 Ill. 2d 472 (1977), an attorney was charged with improperly soliciting clients. In a subsequent meeting before the Disciplinary Commission, he threatened two of his former associates with criminal and disciplinary action if they testified against him. The court held that the improper solicitation was a relatively minor offense, but that his threatening statements were improper, and suspended the attorney's license to practice law for thirty days. In a divorce proceeding, attorney B, representing the wife, stated in a letter to attorney A, representing the husband, that he was inclined to unveil to a bank that the husband had allegedly forged his wife's signature on a mortgage. This action could have resulted in criminal prosecution, and the Board ruled that the conduct of attorney B was "clearly an attempt to gain an advantage and not a statement of objective fact." Therefore, the action violated Rule 1.2(e). ISBA Advisory Opinion on Professional Conduct, Op. No. 91-29.

However, the Illinois Rules of Professional Responsibility do not establish a separate duty or cause of action, and do not create independent tort liability. Kelly v. Carthon, No. 00-C-3110, 2001 U.S. Dist. LEXIS 7471, at *4 (N.D. Ill. May 31, 2001). As a result, a plaintiff seeking relief from an attorney who has breached Rule 1.2(e) must seek other avenues, such as the abuse of process theory. To state a claim for the tort of abuse of process, a party must allege (1) that the opposing party took "some act in the use of the legal process not proper in the regular prosecution of such proceedings"; and (2) that he did so with "an ulterior purpose or motive." Id. at *5. For example, when a lawyer initiates a plausible claim because of the costs it will impose on the opposing party, rather than the possible positive recovery of the claim, the attorney is engaged in the tort of abuse of process. In re TCI, Ltd., 769 F.2d 441 (7th. Cir. 1985). In TCI, a debtor declared bankruptcy, and disposed of some of its property. A creditor (TCI) filed a complaint alleging that the debtor had not used its best efforts to obtain a satisfactory disposition of the property. This complaint was dismissed for failure to state a claim. Nonetheless, TCI's attorney filed two amended complaints, making essentially the same allegations. The attorneys' presented no underlying legal theories, and requested remedies "for which there was no precedent nor statutory authority." Id. at 444. The court noted that this was possible grounds for an abuse of process claim. Id. at 445. In Worldcom v. Transcend Allegiance, No. 97-C-6150, 1998 U.S. Dist. LEXIS 2693 (N.D. Ill. March 4, 1998), the plaintiff telecommunications company filed suit against former officers and their former employer, alleging violations of non-compete agreements. Some of the defendants asserted that WorldCom allegedly used the suit to generate legal expenses, discourage potential suppliers, and discover the defendants' business plans and potential employees. The court did not dismiss this claim, and found that the allegation stated enough facts to infer a post-filing misuse of the legal process of the type required for an abuse of process claim.