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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

V. LAW FIRMS AND ASSOCIATIONS

5.1   Rule 5.1 Responsibilities of a Partner and Supervisory Lawyer

5.1:100   Comparative Analysis of Illinois Rule

Primary Illinois References: IL Rule 5.1
Background References: ABA Model Rule 5.1, Other Jurisdictions
Commentary:

5.1:101      Model Rule Comparison

IRPC 5.1 is MR 5.1, modified slightly for clarity and emphasis.

This Rule has no parallel in the Illinois Code and was a very important change made by the IRPC. Note that the supervised lawyer ("another lawyer") might not be in the supervising lawyer's firm.

It is important to note that this is not a Rule directly regulating professional liability. The firm and any lawyer - principal has always had whatever liability a principal is exposed to for the malfeasance of an agent. What is new is that the supervisor has an obligation to have taken "reasonable efforts" in advance of the agent's malfeasance; efforts to assure that the event would not happen. This does not mean that the supervisor is insuring that there will be no malfeasance, nor does it mean that the supervisor is automatically subject to discipline if malfeasance accrues. The discipline would result from failure to have any program or any effort in this area.

5.1:102      Model Code Comparison

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

5.1:200   Duty of Partners to Monitor Compliance with Professional Rules

Primary Illinois References: IL Rule 5.1
Background References: ABA Model Rule 5.1(a), Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL § 12, Wolfram § 16.2

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

5.1:300   Monitoring Duty of Supervising Lawyer

Primary Illinois References: IL Rule 5.1
Background References: ABA Model Rule 5.1(b), Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL § 12, Wolfram § 16.2

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

5.1:400   Failing to Rectify the Misconduct of a Subordinate Lawyer

Primary Illinois References: IL Rule 5.1
Background References: ABA Model Rule 5.1(c), Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL § 5, Wolfram § 16.2

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

5.1:500   Vicarious Liability of Partners

Primary Illinois References: IL Rule 5.1
Background References: ABA Model Rule 5.1, Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL §§ 8, 10

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

5.2   Rule 5.2 Responsibilities of a Subordinate Lawyer

5.2:100   Comparative Analysis of Illinois Rule

Primary Illinois References: IL Rule 5.2
Background References: ABA Model Rule 5.2, Other Jurisdictions
Commentary:

5.2:101      Model Rule Comparison

IRPC 5.2 is MR 5.2, slightly modified.

Again, this is new, and important, matter; there was no parallel provision in the Illinois Code. Note carefully the interrelationship of IRPC 5.1(b) with the lawyer's duty to report under IRPC 8.3(a).

5.2:102      Model Code Comparison

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

5.2:200   Independent Responsibility of a Subordinate Lawyer

Primary Illinois References: IL Rule 5.2
Background References: ABA Model Rule 5.2(a), Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL § 5, Wolfram § 16.2

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

5.2:300   Reliance on a Supervisor's Resolution of Arguable Ethical Issues

Primary Illinois References: IL Rule 5.2
Background References: ABA Model Rule 5.2(b), Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL § 5, Wolfram § 16.2

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

5.3   Rule 5.3 Responsibilities Regarding Nonlawyer Assistants

5.3:100   Comparative Analysis of Illinois Rule

Primary Illinois References: IL Rule 5.3
Background References: ABA Model Rule 5.3, Other Jurisdictions
Commentary:

5.3:101      Model Rule Comparison

IRPC 5.3 is MR 5.3, modified so as to be clearly applicable to both law firms and solo practitioners, and as with IRPC 5.1, the MR's language in (a) and (b) ("a partner"; "a lawyer") has been changed to "each partner"; "each lawyer." There was no parallel provision in the Illinois Code.

5.3:102      Model Code Comparison

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

5.3:200   Duty to Establish Safeguards

Primary Illinois References: IL Rule 5.3
Background References: ABA Model Rule 5.3(a), Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL §§ 4, 5, Wolfram § 16.3

See also, 91 Ill. Atty. Reg. & Disc. Comm. CH 633.

5.3:300   Duty to Control Nonlawyer Assistants

Primary Illinois References: IL Rule 5.3
Background References: ABA Model Rule 5.3(b), Other Jurisdictions
Commentary: ABA/BNA § 21:8601, ALI-LGL §§ 4, 5, Wolfram § 16.3

5.3:400   Responsibility for Misconduct of Nonlawyer Assistants

Primary Illinois References: IL Rule 5.3
Background References: ABA Model Rule 5.3(c), Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL §§ 4, 5, Wolfram § 16.3

5.4   Rule 5.4 Professional Independence of a Lawyer [Restrictions on Form of Practice]

5.4:100   Comparative Analysis of Illinois Rule

Primary Illinois References: IL Rule 5.4
Background References: ABA Model Rule 5.4, Other Jurisdictions
Commentary:

5.4:101      Model Rule Comparison

The IRPC 5.4 is MR 5.4, save for IRPC 5.4(a)(2) which permits a payment only in respect of the deceased's contribution to the compensation for unfinished business, and the exception in (d)(2) which is consistent with Illinois Supreme Court Rule 721.

IRPC 5.4(a) and (b) are roughly parallel to Illinois Codes 3-102(a) and 3-103; IRPC 5.4(c) and (d) are roughly parallel to Illinois Codes 5-107(c) and (d).

The American Bar Association has recommended a new MR permitting the sale of a practice and thus requiring some changes herein. As of this date, Illinois has not adopted any such changes.

5.4:102      Model Code Comparison

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

5.4:200   Sharing Fees with a Nonlawyer

Primary Illinois References: IL Rule 5.4
Background References: ABA Model Rule 5.4(a), Other Jurisdictions
Commentary: ABA/BNA § 41:801, ALI-LGL § 60, Wolfram §§ 16.4, 16.5

93 Ill. Atty. Reg. & Disc. Comm. CH 320.

5.4:300   Forming a Partnership with Nonlawyers

Primary Illinois References: IL Rule 5.4
Background References: ABA Model Rule 5.4(b), Other Jurisdictions
Commentary: ABA/BNA § 91:401, ALI-LGL § 60, Wolfram §§ 16.4, 16.5

5.4:400   Third Party Interference with a Lawyer's Professional Judgment

Primary Illinois References: IL Rule 5.4
Background References: ABA Model Rule 5.4(c), Other Jurisdictions
Commentary: ABA/BNA § 51:901, ALI-LGL § 60, Wolfram § 8.8

5.4:500   Nonlawyer Ownership in or Control of Profit-Making Legal Service Organizations

Primary Illinois References: IL Rule 5.4
Background References: ABA Model Rule 5.4(d), Other Jurisdictions
Commentary: ABA/BNA § 91:401, ALI-LGL § 60, Wolfram § 16.4, 16.5

5.4:510      Group Legal Services

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

5.4:520      Nonprofit Organizations Delivering Legal Services

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

5.5   Rule 5.5 Unauthorized Practice of Law

5.5:100   Comparative Analysis of Illinois Rule

Primary Illinois References: IL Rule 5.5
Background References: ABA Model Rule 5.5, Other Jurisdictions
Commentary:

5.5:101      Model Rule Comparison

The IRPC 5.5 is identical to MR 5.5.

IRPC 5.5(a) is parallel to Illinois Code 3-101(c). IRPC 5.5(b) is parallel to Illinois Code 3-101(a).

IRPC 5.5(a) raises an unsettled question of interstate professional discipline. See IRPC 8.5.

5.5:102      Model Code Comparison

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

5.5:200   Engaging in Unauthorized Practice

Primary Illinois References: IL Rule 5.5
Background References: ABA Model Rule 5.5(a), Other Jurisdictions
Commentary: ABA/BNA § 21:8001, ALI-LGL §§ 3, 4, Wolfram § 15.1

See also, 92 Ill. Atty. Reg. & Disc. Comm. SH 244; 93 Ill. Atty. Reg. & Disc. Comm. CH 320, 94 Ill. Atty. Reg. & Disc. Comm. CH 596; 95 Ill. Atty. Reg. & Disc. Comm. CH 82.

5.5:210      Practice of Law by Nonlawyers

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

5.5:220      Admission and Residency Requirements for Out-of-State Lawyers

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

5.5:230      Pro Hac Vice Admission [see also 8.1:240]

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

5.5:240      Performing Legal Services in Another Jurisdiction

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

5.5:300   Assisting in the Unauthorized Practice of Law

Primary Illinois References: IL Rule 5.5
Background References: ABA Model Rule 5.5(b), Other Jurisdictions
Commentary: ABA/BNA § 21:8201, ALI-LGL § 4, Wolfram § 15.1

5.6   Rule 5.6 Restrictions on Right to Practice

5.6:100   Comparative Analysis of Illinois Rule

Primary Illinois References: IL Rule 5.6
Background References: ABA Model Rule 5.6, Other Jurisdictions
Commentary:

5.6:101      Model Rule Comparison

The IRPC is identical with the MR.

The Rule in the Illinois Code equivalent to (b) was Illinois Code 2-108. IRPC 5.6(a) is substantially new.

This Rule would have to be amended if Illinois were to permit the sale of a practice.

5.6:102      Model Code Comparison

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

5.6:200   Restrictions on Lawyers Leaving a Firm

Primary Illinois References: IL Rule 5.6
Background References: ABA Model Rule 5.6(a), Other Jurisdictions
Commentary: ABA/BNA § 51:1201 ALI-LGL § 10

Rule 5.6(a) of the Illinois Rules of Professional Conduct prohibits lawyers from participation in the offer or creation of a "partnership or employment agreement that restricts the rights of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement."

This Rule precludes courts from enforcing agreements that do not allow lawyers to compete with their prior employers in the practice of law. In Dowd & Dowd, Ltd. v. Gleason, for example, a plaintiff contested an appellate court's decision not to enforce noncompetition covenants that prevented a lawyer from soliciting the firm's clients upon the lawyer's termination of employment. 1998 WL 123189 *10 (Ill. 1998). The plaintiff argued that since the contract was entered into prior to the effective date of Rule 5.6(a) (Rule 5.6 of the Illinois Rules of Professional Conduct took effect on August 1, 1990), and since the language of the Rule did not give the Rule retroactive effect, the Rule should not be applied to invalidate the noncompetition clause. The court, however, disagreed with the plaintiff. The court noted that the policy underlying the Rule was to give clients more freedom in choosing attorneys and to "protect lawyers from onerous conditions that would unduly limit their mobility." (Citing G. Hazard & Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct § 5.6:201 at 824 (Supp. 1997)). The Gleason court decided that the noncompetition clause conflicted with Rule 5.6, and thus, could not be enforced. Id. at *10. Therefore, the court held that Rule 5.6 "may have retroactive effect and therefore bars the present enforcement of noncompetition covenants entered into prior to the effective date of the rule." Id. Accordingly, contract clauses that prevent a lawyer from competing with an employer upon departure from the firm will not be enforced if the contracts are subject to Illinois law.

The restriction on a lawyer's right to practice does not have to be direct in order to render the contract clause unenforceable. In Illinois, a lawyer's termination agreement that includes a financial disincentive for competition, effectively hindering a lawyer's right to practice, will also be considered violative of Rule 5.6(a), and thus, unenforceable. See Stevens v. Rooks Pitts and Poust, 682 N.E.2d 1125 (Ill. App. Ct. 1997). The Stevens case involved a law partnership agreement clause where a departing partner gave up a portion of compensation due to him if he competed with the firm in a defined geographic area within one year of his termination of employment. Id. at 992-93, 1128. In its analysis, the Stevens court reasoned that requiring an attorney to give up some of the compensation that was due to him if the attorney competes with the firm "hinders both the departing lawyer's ability to take on clients and the clients' choice of counsel." Id. at 999, 1132. Thus, the court concluded, such a provision was against public policy and unenforceable. Even if the contract clause indirectly restricts the right for a lawyer to practice through financial disincentives, as in this case, Rule 5.6 still has retroactive effect. See id. at 997, 1130 (stating that Rule 5.6 applied to pre-existing contracts). As a result, contract clauses that restrict a lawyer's right to practice by offering a financial disincentive will not be enforced, provided the departing attorney is not leaving the firm to retire.

Thus, agreements that restrict a lawyer's right to practice law after departure from a firm will generally be void in Illinois, whether the restriction be direct, or indirect, regardless of whether the contract was formed before or after the effective date of Rule 5.6(a).

5.6:300   Settlements Restricting a Lawyer's Future Practice

Primary Illinois References: IL Rule 5.6
Background References: ABA Model Rule 5.6(b), Other Jurisdictions
Commentary: ABA/BNA § 51:1201, ALI-LGL § 10, Wolfram § 16.2.3

5.7   Rule 5.7 Responsibilities Regarding Law-Related Services

5.7:100   Comparative Analysis of Illinois Rule

Primary Illinois References:
Background References: ABA Model Rule 5.7, Other Jurisdictions
Commentary:

5.7:101      Model Rule Comparison

MR 5.7, Responsibilities Regarding Law Related Services, was not adopted in Illinois, and since it was promulgated (in the present form, February 2, 1994) by the ABA after publication of the IRPC (February 8, 1990), the number of the Rule is not noted as "Reserved."

There was no parallel provision in the Illinois Code.

5.7:102      Model Code Comparison

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

5.7:200   Applicability of Ethics Rules to Ancillary Business Activities

Primary Illinois References:
Background References: ABA Model Rule 5.7, Other Jurisdictions
Commentary: ABA/BNA § 101:2103, ALI-LGL §, Wolfram §