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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

VII. INFORMATION ABOUT LEGAL SERVICES

7.1   Rule 7.1 Communications Concerning a Lawyer's Services

7.1:100   Comparative Analysis of Illinois Rule

Primary Illinois References: IL Rule 7.1
Background References: ABA Model Rule 7.1, Other Jurisdictions
Commentary:

7.1:101      Model Rule Comparison

The IRPC 7.1 is the same as MR 7.1.

The Illinois Code lacked any overall mandate of honesty. In the Rules of Conduct of the Federal District Court for the Northern District of Illinois, this is the only provision relating to the subject: MR and IRPC 7.2, 7.3, 7.4 and 7.5 are omitted in that text.

There was no parallel provision in the Illinois Code.

7.1:102      Model Code Comparison

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

7.1:200   Lawyer Advertising--In General

Primary Illinois References: IL Rule 7.1
Background References: ABA Model Rule 7.2, Other Jurisdictions
Commentary:

7.1:210      Prior Law and the Commercial Speech Doctrine

There appears to be no Illinois case law on this issue.

7.1:220      False and Misleading Communications

In In re Komar, 532 N.E.2d 801 (Ill. 1980) the attorney owned an interest in a corporation known as Midland Equities. Midland's business consisted of sending various written communications to defendants in foreclosure proceedings advising them that Midland had devised a plan to help save their homes and requesting that they contact Midland immediately. An example of Midland's communications reads as follows:

"You may feel that very little or nothing can be done to save your home. Until now, that may have been true. BUT NO MORE. Our firm, through its finance department, has recently devised an innovative plan to help individuals such as you save your home. This plan is new and unique. This plan can help you if you act NOW!"

Midland charged its customers $1000 for its services. However, Midland's services consisted of the following: obtaining a loan commitment to pay the mortgage in arrearage; obtaining a purchaser to buy the real estate with an option of repurchase; retaining counsel to determine legal status of the foreclosure action and negotiate on behalf of the client prior to the foreclosure sale; or obtaining competent counsel to file a bankruptcy petition under Chapter 13 of the United States Bankruptcy Code. The Court noted that in most instances, in exchange for the $1000 fee, the customer simply received a legal review of his case and was referred to a bankruptcy attorney. Midland never arranged to sell a clients' homes under a repurchase option, and in only a few instances did it obtain refinancing.

The Court held that the solicitations were misleading in that they failed to disclose that payment of the $1000 fee typically resulted simply in a referral to a bankruptcy attorney and that the customer would be required to pay an additional fee to that independent attorney. The Court also noted that the communications were misleading in that some of the solicitations were signed in the name of fictitious signatories purported to be Midlands' representatives. For this and for other violations the attorney was suspended from the practice of law for three years.

7.1:230      Creating Unjustifiable Expectations

In In re Komar, 532 N.E.2d 801 (Ill. 1980) some of the communications sent by Midlands to the foreclosure defendants read as follows:

"Our independent service organization has helped many, many people in the same situation. We can help you save your home. But you have to act NOW! ANY delay can cost you ANY chance of saving your home."

"We can help you save your home. Our firm usually finds solutions for people with foreclosure problems that enable them to save their homes."

The Court noted that the solicitations contained information that claimed to be based on past performance or which predicted future events and contained statements as to the quality of services. For this and for other violations the attorney was suspended from the proactive of law for three years.

7.1:240      Comparison with Other Lawyers

There appears to be no Illinois case law on this issue.

7.2   Rule 7.2 Advertising

7.2:100   Comparative Analysis of Illinois Rule

Primary Illinois References: IL Rule 7.2
Background References: ABA Model Rule 7.2, Other Jurisdictions
Commentary:

7.2:101      Model Rule Comparison

Illinois adopted MR 7.2, modified in (a)(1) to extend the period for retaining a copy or recording from a period of two years to three years, and by moving MR 7.2(d) to IRPC 7.2(a)(2).

The parallel provision in the Illinois Code was Illinois Code 2-101.

7.2:102      Model Code Comparison

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

7.2:200   Permissible Forms of Lawyer Advertising

Primary Illinois References: IL Rule 7.2
Background References: ABA Model Rule 7.2(a), Other Jurisdictions
Commentary: ABA/BNA § 81.201, Wolfram § 14.2

7.2:300   Retaining Copy of Advertising Material

Primary Illinois References: IL Rule 7.2
Background References: ABA Model Rule 7.2(b), Other Jurisdictions
Commentary: ABA/BNA § 81:401, Wolfram § 14.2

7.2:400   Paying to Have Services Recommended

Primary Illinois References: IL Rule 7.2
Background References: ABA Model Rule 7.2(c), Other Jurisdictions
Commentary: ABA/BNA § 81.301, Wolfram § 14.2

7.2:500   Identification of a Responsible Lawyer

Primary Illinois References: IL Rule 7.2
Background References: ABA Model Rule 7.2(d), Other Jurisdictions
Commentary: ABA/BNA §§ 81.201, 81:301, Wolfram § 14.2

7.3   Rule 7.3 Direct Contact with Prospective Client

7.3:100   Comparative Analysis of Illinois Rule

   Illinois References: IL Rule 7.3
Background References: ABA Model Rule 7.3, Other Jurisdictions
Commentary:

7.3:101      Model Rule Comparison

IRPC 7.3 is new language, based on Illinois Code 2-103, modified in light of Shapero v. Kentucky Bar Ass’n, 486 U.S. 456 (1988); Zauderer v. Disciplinary Counsel, 471 U.S. 626 (1985); and Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978).

The Illinois drafters believed the MR is insufficient in detail, and does not proscribe the kind of conduct described in Ohralik, supra.

7.3:102      Model Code Comparison

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

7.3:200   Prohibition of For-Profit In-Person Solicitation

Primary Illinois References: IL Rule 7.3
Background References: ABA Model Rule 7.3(a), Other Jurisdictions
Commentary: ABA/BNA § 81:2001, Wolfram § 14.2.5

The Illinois Supreme Court case of In re Teichner provides a good example of the types of in person solicitation which will warrant disciplinary action. 387 N.E.2d 265 (Ill. 1979). In this case, a derailment and explosion of a train in Decatur led to numerous injuries. Teichner thereafter solicited the aid and assistance of an automobile rental agency employee to introduce him to injured persons and their acquaintances and relatives. The employee of the automobile rental agency stated that Teichner "told me that if I would give him some names and addresses of people that worked on the railroad he would pay me and pay them." Id. at 273. Teichner also heard of a victim whose home was damaged by the explosion and called her to arrange to meet with her and her husband. Teichner then sought employment, on a contingent fee basis, from this person. Teichner also approached Leesa Hulvey and solicited from her employment to represent her for the claims and injuries sustained by her boyfriend and fiancé, Darrel Hardy. Teichner then contacted the mother of Darrel Hardy, who was injured in the explosion and requested employment to represent her in connection with the injuries to her son. Teichner also approached Brenda K. Hardy and requested her to employ him in connection with any cause of action she or her minor child might have as a result of the explosion in the railroad yard. The court found that there was ample support for the Hearing and Review Board's recommendation that discipline be imposed for the conduct demonstrated by Teichner. Teichner was suspended from the practice of law for two years.

The courts of Illinois will also void, as against policy, contracts made with law firms which are not for the provision of legal services, but which are for the provision of business services. Marvin N. Benn & Associates, Ltd. v. Nelsen Steel & Wire, Inc., 437 N.E.2d (1st Dist. 1982). In this case, Marvin N. Benn & Associates entered into a contract with a third party corporation which stated that Marvin N. Benn & Associates would search for and provide the name of contacts for the sale of goods in Taiwan and China. Thereafter, Marvin N. Benn & Associates brought an action for tortious interference with the contract against Nelsen Steel & Wire. The court, citing an Illinois State Bar Association Opinion, stated that the conduct of another business in the same office from which an attorney conducts his legal practice is a form of solicitation. The court held that such conduct "opens the door to an accusation that the attorney is soliciting business." Id. at 904. The court further held that the contract at issue when scrutinized in the light of a public policy rationale against "feeder" businesses, and in person solicitation by lawyers offends public policy. "The terms of the contract provided a situation in which a business transaction may ultimately be used as a 'feeder' for legal services or a contractual scheme in which business contracts may be used as a basis for soliciting legal employment." Id. at 904. The court stated that although such a conclusion may only be speculative, anything which might tend to deface the legal profession is against the public interest and is, therefore, contrary to public policy. The court further found that any contract which might have the affect of facilitating in person solicitation by a lawyer has a tendency to injure the public and is inconsistent with sound policy and good morals. Therefore, the court found that the contract was void as against public policy.

Cases construing Illinois Rule 7.3 include Peel v. Attorney Registration and Disciplinary Com'n of Illinois, 496 U.S. 91 (1990), Adams v. Attorney Registration and Disciplinary Com'n of Supreme Court of Illinois, 801 F.2d 968 (7th Cir. 1986). See also Teichner v. Atty. Registration and Disciplinary Com'n of Illinois, 444 U.S. 917 (1979); 90 Ill. Atty. Reg. & Disc. Comm. CH 489.

7.3:210      Solicitation by Non-Profit Public Interest Organization

Although there appears to be no case directly on point, there does exist case law which seems to support the proposition that Illinois courts not only would, but must, allow for solicitation by non profit public interest organizations.

In the case of In re Teichner, the court stated that it would decline to prohibit in person solicitation of contingent fee contracts by attorneys operating at the behest of non profit organizations. 387 N.E.2d 265(Ill. 1979). In this case, a train explosion occurred in Mississippi and among the killed and injured were many members of the black community. Thereafter, a pastor of the local community established a comprehensive program of relief for the injured persons and their families. At about the same time, agents of the railroad began appearing in the black community and began negotiating settlement agreements with the injured. The pastor believed the settlement agreements to be inadequate and sought to obtain legal counsel for the injured and their families. Through a contact in Chicago, the pastor contacted Teichner and asked him to come to Mississippi. The complaint further went on to state that Teichner, without other invitation or request, introduced himself to the members of the community, identified himself as a lawyer, and requested permission to talk with them concerning the injuries they had sustained as a result of the railroad explosion. The court found that the contents of these communication indicated Teichner's desire to be employed by these persons and thus found prima facie evidence of a disciplinary violation.

However, the court also stated that Teichner's conduct was constitutionally protected. The court, citing several Supreme Court cases, noted that purely commercial expression could be more severely restricted than other forms of expression. The court also noted that the most important purposes of the First Amendment are the protection of the right of individuals to associate in the free flow of information necessary to facilitate the expression of beliefs and ideas.

We recognize that, at least where associational values are not implicated, in person solicitation "for pecuniary gain" may be prohibited, and that, even where such values are implicated, "carefully tailored regulation does not abridge unnecessarily the associational freedom of non profit organizations, or their members, having characteristics like those of the NAACP or the ACLU" also has not been foreclosed. . . . thus, prohibition of in person solicitation of contingent fee contracts by attorneys operating at the behest of non profit organizations might well be among the types of restrictions which the United States Supreme Court would approve. Nonetheless, we decline to prohibit all such solicitation.

Id. at 271, 272. Thus, the court declined to impose any sanctions with regard to Teichner's conduct in Mississippi.

7.3:220      Solicitation of Firm Clients by a Departing Lawyer

A lawyer must not seek work for pecuniary gain by initiating either an in-person interview or live telephone contact with a prospective client with whom the lawyer has no prior professional relationship or family connection. I.R.P.C. 7.3(a). This type of conduct will be considered solicitation and deemed improper. The Rule permits written communication soliciting prospective clients but all letters must contain the words "Advertising Material" on the outside of the envelope. Id. The term solicitation describes contact with prospective clients, not those clients with which the lawyer has already dealt.

A tactic known as grabbing occurs when a firm employs a lawyer and the lawyer contacts current clients of the firm for the purpose of convincing the clients to follow the lawyer to a new firm. Robert W. Hillman, Hillman on Lawyer Mobility, §2.2.2, 2:11 (2000). Grabbing clients presents some of the possible abuses of solicitation and is actionable if the lawyer interferes with the client's informed and educated choice of legal counsel by misstating facts or misrepresenting the old firm before the lawyer's departure from the firm. This type of communication typically is less actionable than solicitation, however, because a lawyer grabbing already retained clients presents less dangers of uninformed choice on behalf of the client. Id. at §2.2.3, 2:13. Notification by the lawyer to the client before departure allows the client to make an informed decision as to the client's choice for representation. Id. There is little Illinois case law regarding situations of a lawyer grabbing clients prior to departure from a firm. Therefore, when the Illinois Supreme Court decided the landmark case of Dowd & Dowd, Ltd. v. Gleason regarding a lawyer's possible breach of a fiduciary duty for grabbing firm clients, the Court turned to out-of-state authority. In Dowd, the Court stated that a lawyer's conduct is a breach of fiduciary duty when, before the lawyer departs, he "secretly attempt[s] to lure firm clients (even those that the partner has brought into the firm and personally represented) to the new association, l[ies] to the clients about their rights with respect to their choice of counsel and abandon[s] the firm on short notice." 693 N.E. 2d 358, 367 (Ill. 1998) (quoting Graubard Mollen Dannet & Horowitz v. Moskovitz, 653 N.E.2d 1179, 1183-84 (N.Y. 1995)). Departing lawyers are allowed to take "preliminary logistical steps" before leaving the firm, like securing office space and supplies, but they may not lure clients for the new firm. Id.

All pre-termination communication by departing lawyers is not prohibited however. When a lawyer leaves a law firm, she is "permitted to inform clients with whom they have a prior professional relationship about their impending withdrawal and new practice, and to remind the client of its freedom to retain counsel of its choice." Dowd & Dowd v. Gleason, 693 N.E. 2d 358, 367 (Ill. 1998)(quoting Graubard Mollen Dannet & Horowitz v. Moskovitz, 653 N.E.2d 1179, 1183-84 (N.Y. 1995)). In the interest of protecting the client, the client should be entitled to know that the lawyer handling the client's case will be relocating to allow the client the ability to choose between the lawyer's new and old firms. Michael L. Shakman, Primer on Acting Rationally When Lawyers Relocate, 2000 CBA Rec. 24. In Dowd, the Court urged that these communications to clients should occur after the partner has notified the firm of the partner's departure. 693 N.E. 2d at 367. The Court upheld a provision allowing the employee to terminate employment at the end of the fiscal year or after 90 days notice. Id. at 368. This safeguard ensures that the lawyer's grabbing will not be improper because the lawyer has severed ties with the old firm after the resignation. In Dowd, two attorneys decided to depart from the law firm of Dowd & Dowd to start their own firm. Before they resigned from the firm, the two attorneys bought office space and furniture in a separate location and obtained a line of credit for the new firm. Then, on the same day they resigned from Dowd & Dowd, the two attorneys contacted Allstate, Dowd & Dowd's main client, and convinced them to leave Dowd & Dowd and follow the two attorneys to their new firm. Id. at 362. The circuit court denied the defense motion for summary judgement on Dowd & Dowd's breach of fiduciary duty claim. However, the judge certified a question of law regarding whether a corporation has a cause of action against former officers or directors for breach of fiduciary duty when the former officers had planned their departure before leaving and planned to solicit business of former clients. That question of law was again certified by the appellate court. The Illinois Supreme Court did not attempt to answer the certified question of law and remanded the case to the trial court for a factual inquiry about the nature of the partners' possible solicitation prior to their departure from Dowd & Dowd. Id. at 367.

On remand, the Circuit Court of Cook County held that the departing lawyers breached their fiduciary duty to the firm of Dowd & Dowd by soliciting Allstate Insurance as a client for their new firm. Dowd & Dowd v. Gleason, No. 98-5429, slip op. 12 (March 12, 2001). The court cited several findings of fact in support of its holding of solicitation, particularly that the defendants: 1) failed to disclose certain facts that threatened the economic existence of Dowd & Dowd, such as the line of credit opened for the new firm using Dowd & Dowd's confidential information, 2) gave $186,000 of Dowd & Dowd credit to Harris Bank without authorization to secure a new $400,000 line of credit for the new firm, and 3) solicited Allstate before resigning from Dowd & Dowd. Id. If an attorney sends material to an existing client prior to the lawyer's resignation, then the material contained in the communication from the lawyer to the client will also influence whether the conduct will be deemed to be a breach of fiduciary duty. Hillman on Lawyer Mobility, at §2.2.4, 2:22, (citing ABA Comm. on Ethics and Professional Responsibility, Formal Op. 99-414 (1999)). In Opinion 99-414, the ABA suggested several guidelines for the content of communications sent before the lawyer resigns from the firm: 1) the notice should be limited to clients whose active matters the lawyer has direct responsibility [for] at the time of the notice; 2) the departing lawyer should not urge the client to sever its relationship with the firm, but may indicate the lawyer's willingness and ability to continue her responsibility for the matters upon which she is currently working; 3) the departing lawyer must make clear that the client has the ultimate right to decide who will complete or continue the matters; and 4) the departing lawyer must not disparage the lawyers former firm. Id. Therefore, unlike the prohibition against general solicitation of prospective clients, the lawyer may contact current clients and inform them in-person or by telephone of her intent to leave, so long as the lawyer advises the client of her right to choose a lawyer and does not criticize the old law firm. Id. at §2.31, 2:22-1.

7.3:300   Regulation of Written and Recorded Solicitation

Primary Illinois References: IL Rule 7.3
Background References: ABA Model Rule 7.3(b), Other Jurisdictions
Commentary: ABA/BNA § 81:2001, Wolfram § 14.2.5

In In re Komar, 532 N.E.2d 801 (Ill. 1980) an attorney owned an interest in the corporation known as Midland Equities. Midland's business consisted of sending various written communications to defendants in foreclosure proceedings advising them that Midland had devised a plan to help save their homes and requesting that they contact Midland immediately. An example of Midland's communications reads as follows:

You may feel that very little or nothing can be done to save your home. Until now, that may have been true. BUT NO MORE. Our firm, through its finance department, has recently devised an innovative plan to help individuals such as you save their home. This plan is new and unique. This plan can help you if you act NOW!

Midland charged the customers $1,000 for its services. However, Midland's services consisted of the following: obtaining a loan commitment to pay the mortgage in arrearage; obtaining a purchaser to buy the real estate with an option of repurchase; retaining counsel to determine the legal status of the foreclosure action and negotiate on behalf of the client prior to the foreclosure sale; or obtaining competent counsel to file a bankruptcy petition under Chapter 13 of the United State Bankruptcy Code. The court noted that in most instances, in exchange for the $1,000 fee, the customer simply received a legal review of his case and was referred to a bankruptcy attorney. Midland never arranged to sell any clients homes under a repurchase option, and in only a few instances did it obtain refinancing.

The court held that the solicitations were misleading in that they failed to disclose that payment of the $1,000 fee typically resulted simply in the referral to a bankruptcy attorney and that the customer would be required to pay an additional fee to that independent attorney. The court also noted that the communications were misleading in that some of the solicitations were signed in the name of fictitious signatories purported to be Midland representatives.

The court held that the attorney was subject to discipline for creating unjustifiable expectations. Some of the communications sent by Midland to the foreclosure defendants read as follows:

"Our independent service organization has helped many, many people in the same situation. We can help you save your home. But you have to act NOW! ANY delay can cost you ANY chance of saving your home.

"We can help you save your home. Our firm usually finds solutions for people with foreclosure problems and enable them to save their homes.

The court found that the solicitations contained information that claimed to be based on past performance or which predicted future events and contained statements as to the quality of services.

The court noted that the letter did not disclose the name of the attorney. The court found that the attorney had violated DR 2-102(b) and Rule 2-101, which prohibited an attorney from practicing under a misleading name. The court found that the name of the attorney giving legal advice to over 1,000 persons appeared nowhere in the solicitation; the attorney admitted that he failed to reveal that he had an interest in Midland. For this and other violations, the attorney was suspended from the practice of law for three years.

7.3:400   Disclaimers for Written and Recorded Solicitation

Primary Illinois References: IL Rule 7.3
Background References: ABA Model Rule 7.3(c), Other Jurisdictions
Commentary: ABA/BNA § 81:401, Wolfram § 14.2.5

7.3:500   Solicitation by Prepaid and Group Legal Services Plans

Primary Illinois References: IL Rule 7.3
Background References: ABA Model Rule 7.3(d), Other Jurisdictions
Commentary: ABA/BNA § 81:2501, Wolfram § 16.5.5

There appears to be no Illinois case law on this issue.

7.4   Rule 7.4 Communication of Fields of Practice

7.4:100   Comparative Analysis of Illinois Rule

Primary Illinois References: IL Rule 7.4
Background References: ABA Model Rule 7.4, Other Jurisdictions
Commentary:

7.4:101      Model Rule Comparison

IRPC 7.4 is partially new language. IRPC 7.4(b)(1), (2) and (3) are substantially similar to MR 7.4(a) and (b). IRPC 7.4(c) is more precise than the second alternative MR 7.4(c), on which it is based. IRPC 7.4(a)(1) is equivalent to Illinois Code 2-101(a)(5); 7.4(a)(2) is equivalent to Illinois Code 2-101(a)(8).

The prohibitions of Illinois Code 2-105(a)(3), which were equivalent to IRPC 7.4(b) as originally promulgated, have been held unconstitutional by the U.S. Supreme Court in Peel v. ARDC, 496 U.S. 91 (1990). The language of present Illinois Rules 7.4(b) and (c) was adopted by the Illinois Supreme Court, effective August 1, 1990.

7.4:102      Model Code Comparison

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

7.4:200   Regulation of Claims of Certification and Specialization

Primary Illinois References: IL Rule 7.4
Background References: ABA Model Rule 7.4, Other Jurisdictions
Commentary: ABA/BNA §§ 21:4001, 81:501, Wolfram § 14.2.4

The prohibitions of 1980 Rule 2-105(a)(3), which were equivalent to Illinois Rule 7.4(b) as originally promulgated, have been held unconstitutional by the U.S. Supreme Court in Peel v. Attorney Registration and Disciplinary Com'n of Illinois, 496 U.S. 91 (1990).

7.5   Rule 7.5 Firm Names and Letterheads

7.5:100   Comparative Analysis of Illinois Rule

Primary Illinois References: IL Rule 7.5
Background References: ABA Model Rule 7.5, Other Jurisdictions
Commentary:

7.5:101      Model Rule Comparison

IRPC 7.5(a) and (b) are based upon Illinois Code 2-102; IRPC 7.5(c) is new language; IRPC 7.5(d) is MR 7.5(d).

7.5:102      Model Code Comparison

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

7.5:200   Firm Names and Trade Names

Primary Illinois References: IL Rule 7.5
Background References: ABA Model Rule 7.5(a), Other Jurisdictions
Commentary: ABA/BNA § 81:3001, Wolfram § 14.2.4

7.5:300   Law Firms with Offices in More Than One Jurisdiction

Primary Illinois References: IL Rule 7.5
Background References: ABA Model Rule 7.5(b), Other Jurisdictions
Commentary: ABA/BNA § 81:3005, Wolfram § 15.4

7.5:400   Use of the Name of a Public Official

Primary Illinois References: IL Rule 7.5
Background References: ABA Model Rule 7.5(c), Other Jurisdictions
Commentary: ABA/BNA § 81:3001, Wolfram § 14.2.4

7.5:500   Misleading Designation as Partnership, etc.

Primary Illinois References: IL Rule 7.5
Background References: ABA Model Rule 7.5(d), Other Jurisdictions
Commentary: ABA/BNA § 81:3001, ALI-LGL § 79, Wolfram § 14.2.4