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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

VIII. MAINTAINING THE INTEGRITY OF THE PROFESSION

8.1   Rule 8.1 Bar Admission and Disciplinary Matters

8.1:100   Comparative Analysis of Illinois Rule

Primary Illinois References: & IL Rule 8.1
Background References: ABA Model Rule 8.1, Other Jurisdictions
Commentary:

8.1:101      Model Rule Comparison

IRPC 8.1(a) is MR 8.1, with modifications; (b) is Illinois Code 1-101(c).

8.1:102      Model Code Comparison

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

8.1:200   Bar Admission

Primary Illinois References: IL Rule 8.1
Background References: ABA Model Rule 8.1, Other Jurisdictions
Commentary: ABA/BNA §§ 21:101, 10l:1, ALI-LGL § 2, Wolfram §§ 15.2, 15.3

Opinions of the Illinois Attorney Registration and Disciplinary Commission Hearing Board and Review Board construing Illinois Rule 8.1 include In re White, 92 Ill. Atty. Reg. & Disc. Comm. 115; In re Bonner, 93 Ill. Atty. Reg. & Disc. Comm. 442; In re Gordon, 94 Ill. Atty. Reg. & Disc. Comm. 594; In re Ellis, 93 Ill. Atty. Reg. & Disc. Comm. 320; In re Gertzman, 93 Ill. Atty. Reg. & Disc. Comm. 597.

8.1:210      Bar Admission Agency

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

8.1:220      Bar Admission Requirements

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

8.1:230      Admission on Motion

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

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

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

8.1:300   False Statements of Material Fact in Connection with Admission or Discipline

Primary Illinois References: IL Rule 8.1
Background References: ABA Model Rule 8.1(a), Other Jurisdictions
Commentary: ABA/BNA §§ 21:301, 101:201, Wolfram § 15.3.1

The Illinois Supreme Court addresses Rule 8.1(a) and (b) in In re Michelle Chandler, 641 N.E.2d 473 (Ill. 1994). In Chandler, the attorney was charged with falsifying information regarding her income, employment history, and social security number on a residential loan application made while her application to the Illinois Bar was pending. Id. at 474. She was also charged with preparing and submitting false documents in connection with the loan application and providing false information concerning her social security number and name at birth on her Illinois Bar application. Id. Both the Hearing Board and the Review Board found that the attorney had committed substantially all the misconduct charged against her and recommended a six-month suspension because of her current good reputation of honesty and integrity in the community. Id. at 477.

The Supreme Court of Illinois, however, imposed a much greater penalty. Focusing mainly on the attorney's action of falsifying information on her bar application, the Supreme Court stated that the bar application imposed a duty upon the attorney to update her application with pertinent facts that occur while her bar application is pending. The attorney should "immediately disclose to the Character and Fitness Committee circumstances and events occurring after the date of submission of the application which may have any substantive bearing on Applicant's character and fitness." Id. at 478. The majority of the Supreme Court inferred this duty from Rule 8.1, or at that time in Illinois, Rule 1-101(b). See 107 Ill.2d R. 1-101(b). The Illinois Supreme Court held that the attorney in Chandler violated this duty because at no time did she report to the committee either her misconduct in connection with the loan application or the ensuring foreclosure action. Chandler, 641 N.E.2d at 478.

The appropriate sanctions for situations in which an attorney makes a materially false statement in connection with admission to the bar have ranged in severity from censure to disbarment. Id. at 479. An attorney may be disbarred or suspended from the practice of law for false statements on her bar application even though there is no further evidence regarding unprofessional or unethical conduct that occurs since the person's admission to the bar. Id. at 480. It does not matter whether the fraud concerns an attorney's personal life rather than professional affairs. "The absence of candor or completeness exemplifies a lack of concern for the truth and can only frustrate the application process." Id. The Supreme Court held that because the attorney committed fraud with personal gain in mind, and because she committed fraud with regards to information on her bar application and failed to inform the Character Committee of her fraudulent actions in obtaining a loan, the appropriate sanction was suspension from the practice of law for three years.

8.1:400   Duty to Volunteer Information to Correct a Misapprehension

Primary Illinois References: IL Rule 8.1
Background References: ABA Model Rule 8.1(b), Other Jurisdictions
Commentary:

8.1:410      Protecting Client Confidential Information

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

8.1:500   Application of Rule 8.1 to Reinstatement Proceedings

Primary Illinois References: IL Rule 8.1
Background References: ABA Model Rule 8.1(b), Other Jurisdictions
Commentary:

8.2   Rule 8.2 Judicial and Legal Officials

8.2:100   Comparative Analysis of Illinois Rule

Primary Illinois References: IL Rule 8.2
Background References: ABA Model Rule 8.2, Other Jurisdictions
Commentary:

8.2:101      Model Rule Comparison

IRPC 8.2 is MR 8.2(a) with modifications. IRPC 8.2 is Illinois Code 8-103, modified.

8.2:102      Model Code Comparison

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

8.2:200   False Statements About Judges or Other Legal Officials

Primary Illinois References: IL Rule 8.2
Background References: ABA Model Rule 8.2(a), Other Jurisdictions
Commentary: ABA/BNA § 101:601, ALI-LGL § 174, Wolfram § 11.3.2

Opinions of the Illinois Attorney Registration and Disciplinary Commission Hearing Board and Review Board construing Illinois Rule 8.2 include In re Palmisano, 92 Ill. Atty. Reg. & Disc. Comm. 109 and In re Spears, 94 Ill. Atty. Reg. & Disc. Comm. 579.

8.2:300   Lawyer Candidates for Judicial Office

Primary Illinois References: IL Rule 8.2
Background References: ABA Model Rule 8.2(b), Other Jurisdictions
Commentary: ABA/BNA § 101:601, ALI-LGL § 174, Wolfram § 17.2

8.3   Rule 8.3 Reporting Professional Misconduct

8.3:100   Comparative Analysis of Illinois Rule

Primary Illinois References: IL Rule 8.3
Background References: ABA Model Rule 8.3, Other Jurisdictions
Commentary:

8.3:101      Model Rule Comparison

IRPC 8.3(a) is a modified version of MR 8.3(a), which also incorporates much of MR 8.3(c). A "confidence" may not be disclosed.

"Confidence" is a defined term (see Terminology) basically referring to the attorney-client privilege. Illinois Code 1-103 is substantially equivalent. It was pursuant to the Illinois Code equivalent of IRPC 8.3(a) that discipline was imposed in In re Himmel, 533 N.E.2d 790 (Ill. 1988). IRPC 8.3(b) is a modified version of MR 8.3(b), and also incorporates much of MR 8.3(c). IRPC 8.3(c) and (d), are new. See also In re: Anglin, 524 N.E.2d 550 (Ill. 1988).

8.3:102      Model Code Comparison

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

8.3:200   Mandatory Duty to Report Serious Misconduct

Primary Illinois References: IL Rule 8.3
Background References: ABA Model Rule 8.3(a), Other Jurisdictions
Commentary: ABA/BNA § 101:201, ALI-LGL § 5, Wolfram § 12.10

Long-standing precedent has established that the Illinois Supreme Court "possesses the inherent and exclusive power to regulate the practice of law in this state and to sanction or discipline the unprofessional conduct of attorneys admitted to practice before it." See In re Mitan, 518 N.E.2d 1000, 1008 (Ill. 1987). Stemming from this doctrine is the mandatory duty imposed by Rule 8.3(a) on all attorneys with knowledge of any violation of Rule 8.4(a)(3) and (a)(4) to report the violation "to a tribunal or other authority empowered to investigate or act upon such violation." See IRPC 8.3(a). Because this duty is mandatory, it is important to discern: (1) What type of conduct must the attorney report and (2) To whom must the attorney report such conduct.

Addressing the first question, an attorney with knowledge "not otherwise protected as a confidence" of any violation of misconduct falling under Rule 8.4(a)(3) and (a)(4) has a duty to report such knowledge. See IRPC 8.3. Under the Rules, knowledge is defined as "actual knowledge of the fact in question;" however, "a person's knowledge may be inferred from circumstances." See IRPC; see also Thomas P. Sukowicz, The Himmel Duty: Observations by an ARDC Lawyer, 11 CBA Record 16, 17 (1997). Thus, even though direct observation by the lawyer is not required for actual knowledge, "it is safe to say that information based on hearsay or rumor need not be reported." See Sukowicz at 17.

However, the duty to report arising under Rule 8.4(a)(3) and (a)(4) does not apply when the attorney learns of misconduct that is privileged from disclosure. See IRPC 8.3. Although the predecessor to 8.3, Rule 1-103, excluded privileged information in general, Rule 8.3 expressly excepts from the reporting duty, knowledge of information that is "protected as a confidence by these Rules or by law." See IRPC 8.3; see also Sukowicz at 18. Confidence is defined as "information protected by the lawyer-client privilege under applicable law." See IRPC. Thus, information protected by other privileges are not excused from the reporting duty under Rule 8.3. See Sukowicz at 18. Nevertheless, if the privilege is waived or if an attorney learns information detailing misconduct that is not defined as privileged under People v. Adam, then the misconduct must be reported. See In re Himmel, 533 N.E.2d 790, 794 (Ill. 1988) (citing People v. Adam, 280 N.E.2d 205 (Ill. 1972)). Even if the client approves of an attorney's misconduct it still must be reported. See id.

In addition to understanding "knowledge" under Rule 8.3, the type of misconduct must also be ascertained. Specifically, Rule 8.4(a)(3) and (a)(4) prescribe illegal conduct involving moral turpitude or dishonesty, fraud, deceit or misrepresentation. See id. When an attorney's actions are "calculatedly in his own self-interest and against the interests of his client, [these actions] tend to bring the profession into disrepute" and constitute acts involving moral turpitude. See In re Stillo, 368 N.E.2d 897, 899 (Ill. 1977). Furthermore, as defined in the Rules, acts constituting fraud include conduct purposefully deceitful and "not merely negligent misrepresentation or failure to apprise another of relevant information." See IRPC: Terminology, Definition of Fraud. However, the Illinois Supreme Court has broadened the definition of "fraud" and the type of reportable misconduct to include "anything calculated to deceive, including suppression of truth and the suggestion of what is false." See In re Yamaguchi, 515 N.E.2d 1235, 1239 (Ill. 1987); see also Sukowicz at 18. Moreover, this conduct could occur by "direct falsehood or by innuendo, by speech or by silence, by word of mouth or by look or gesture." See In re Armentrout, 457 N.E.2d 1262, 1266 (Ill. 1983); see also Sukowicz at 18. Because of the expanded interpretation, "dishonest conduct encompasses a broad spectrum of actions that must be reported under Rule 8.3(a)." See Sukowicz at 18. Examples include an attorney's conversion of client's funds or fabrication of official documents. See Himmel at 796; Skolnick v. Altheimer & Gray, 708 N.E.2d 1177 (Ill. App. 1st Dist 1999), petition for leave to appeal allowed, Nos. 87320 and 87324 (Ill. June 2, 1999). Other examples are:

•    Overreaching and undue influence;

•    Unauthorized endorsements on settlement checks;

•    Suppression of evidence or creation of false evidence;

•    Deception or fraud in connection with a business transaction;

•    Criminal conduct involving theft, fraud, drug dealing, obstruction of justice, bribery or perjury; and

•    Making false or deceptive statements under a variety of circumstances including: (i) Misrepresentations to clients to conceal the attorney's misconduct; (ii) Misrepresentations to opposing counsel about facts material to a legal dispute; (iii) Material misrepresentations to a court or tribunal; and (iv) Material misrepresentations to financial institutions, bar admissions authorities, revenue authorities, insurers or other persons.

Sukowicz at 18. All of the above arguably must be reported by an attorney under Rule 8.3 who possesses any unprivileged knowledge. See id.

Furthermore, the attorney must report "such knowledge to a tribunal or other authority empowered to investigate or act upon such violation." See Himmel, 533 N.E.2d at 794 (emphasis added). See also Skolnick. To understand this requirement, a determination must be made as to whether "empowered" modifies both the "tribunal or other authority" or whether it only modifies "other authority." In other words, is it sufficient to report the misconduct to either a tribunal or the ARDC, the authority empowered by the Illinois Supreme Court to discipline conduct? Or, must it only be reported to the ARDC? It is important to recognize that Illinois modeled 8.3(a) after the ABA's Model Code of Professional Conduct. See Himmel, 533 N.E.2d at 793. Illinois' version essentially tracked the language of the Model Code's Disciplinary Rule 1-103. See id. Thus, in examining Rule 8.3(a), Himmel found instructive an ABA Informal Opinion interpreting Rule 1-103. See id.

The ABA opinion analyzes the language of the Rule 1-103 and advises how Rule 8.3(a) should be interpreted. See ABA Informal Opinion 1210 (February 9, 1972). It opined that "the duty of a lawyer under DR 1-103(A) is to report to the prescribed tribunal or authority any unprivileged knowledge of perpetration by a lawyer" of a violation of DR 1-102, essentially the equivalent of Illinois Rule 8.4(a)(3) and (a)(4). See id. (emphasis added). Thus, the ABA interpreted "empowered" to modify both "tribunal" and "other authority." See id. This interpretation is furthered supported by the ABA's successor to DR 1-103, Model Rule 8.3 as well as Rule 3.53 of the Rules of the United States District Court for the Northern District of Illinois.

The ABA's Model Rule 8.3 states that an attorney must report the misconduct to "the appropriate professional authority." See MR 8.3(a). It essentially clarified the meaning of its predecessor, 1-103, by removing "tribunal," and thereby emphasized the necessity of reporting to the authority empowered to receive the claims of misconduct. Furthermore, the Northern District's Rule 3.53 for disciplinary proceedings states that misconduct coming before the court not otherwise provided for "shall be referred to the Executive Committee for consideration and appropriate action." See Northern District Rule 3.53. Thus, Rule 8.3 may be intended to require or authorize attorneys to report ethical violations to the Executive Committee when violations occur in Federal Court.

Considering the ABA's Model Rule 8.3, the Northern District's Rule 3.53 and the ABA's interpretation of Illinois Rule 8.3(a), an attorney must report Rule 8.4(a)(3) and (a)(4) to the ARDC. The Illinois Supreme Court has sole discretion on who has authority to investigate claims of attorney misconduct. See People ex rel. Brazen v Finley, 519 N.E.2d 898, 902 (Ill. 1988). Because it appointed the ARDC as the authority responsible for these claims, an attorney may only satisfy his 8.3(a) duty by reporting the misconduct to the ARDC.

However, a trial court may consider attorney violations of professional conduct in limited circumstances. See Skolnick, 708 N.E.2d at 1177. Analyzing Skolnick and the underlying cases it relies upon affords a better understanding how Rule 8.3(a) should be followed. As interpreted by the First District, the trial court is the appropriate forum "if that misconduct results in prejudice or adversely impacts the rights of the parties in the case pending before it." See id. Otherwise, all other attorney misconduct must be reported to the ARDC. See id.

Skolnick relies on limited case law to announce this uniform rule to follow in interpreting Rule 8.3(a). See Skolnick, 303 Ill. App. 3d 27, 708 N.E.2d 1177. First, Skolnick cites clearly established precedent for the principle that the ARDC "ha[s] the exclusive authority to discipline or sanction the unprofessional conduct of attorneys admitted to practice." See id. at 1177 (citing In re Mitan, 518 N.E.2d 1000 (Ill. 1987)). Thus, the court held that mere misconduct must always be reported to the ARDC. See id. Then, Skolnick cites cases where the trial court disciplined attorneys in matters pending before it for violation of certain ethical rules. See id. Relying heavily on a First District Appellate case, Beale v. Edgemark Financial Corp., and the underlying cases, the court formulated its rule that the tribunal can discipline attorney violations of the Illinois Rules of Professional Conduct when the misconduct adversely impacts the rights of the parties in the case pending before it. See id. (citing Beale v. Edgemark Financial Corp., 297 Ill. App. 3d 999, 697 N.E.2d 820). Otherwise, the court held that the ARDC is the only appropriate forum. See id.

8.3:300   Reporting the Serious Misconduct of a Judge

Primary Illinois References: IL Rule 8.3
Background References: ABA Model Rule 8.3(b), Other Jurisdictions
Commentary: ABA/BNA § 101:201, ALI-LGL § 5, Wolfram § 12.10

8.3:400   Exception Protecting Confidential Information

Primary Illinois References: IL Rule 8.3
Background References: ABA Model Rule 8.3(c), Other Jurisdictions
Commentary: ABA/BNA § 101:201, ALI-LGL §§ 113-117A, Wolfram § 12.10

8.4   Rule 8.4 Misconduct

8.4:100   Comparative Analysis of Illinois Rule

Primary Illinois References: IL Rule 8.4
Background References: ABA Model Rule 8.4, Other Jurisdictions
Commentary:

IRPC 8.4(a) is MR 8.4, with substantial additions; IRPC 8.4(b)(1) and (2) are Illinois Code 8-101(a)(1) and (2), with modifications. IRPC 8.4(b)(3) and (c) are new.

8.4:101      Model Rule Comparison

IRPC 8.4(a) and 8-4(b)

IRPC 8.4(a)(1) and 8.4(a)(2) are substantially MR 8.4(a). Both IRPC 8.4(a)(2) and MR 8.4(a) require that the lawyer have knowledge that the conduct she is inducing another to engage in violates either an Illinois Rule of Professional Conduct or a Model Rule of Professional Conduct, respectively. See MR 8.4(a) ("It is professional misconduct for a lawyer to knowingly assist or induce another to do so [violate or attempt to violate the rules of professional misconduct] . . . .") IRPC 8. 4(a)(2) ("A lawyer shall not induce another to engage in conduct, or give assistance to another's conduct, when the lawyer knows that conduct will violate these Rules . . .").

IRPC 8.4(a)(3) and 8.4(a)(4)

Both IRPC 8.4(a)(3) and 8.4(a)(4) are identical to MR 8.4(b) and 8.4(c), respectively.

IRPC 8.4(a)(5)

The general rule forbidding a lawyer to "engage in conduct prejudicial to the administration of justice" is identically stated in both IRPC 8.4(a)(5) and MR 8.4(d). However, in addition to prohibiting an attorney from engaging in conduct prejudicial to the administration of justice, effective October 15, 1993 Illinois Rule 8.4(a)(5) was amended to prohibit "adverse discriminatory treatment of litigants, jurors, witnesses, lawyers, and others, based on race, sex, religion, or national origin."

Standing alone in the country in 1998, the District of Columbia creates disciplinary liability for lawyers who employ peremptory challenges in a discriminatory manner. See D.C. Rule 3.8(h) ("The prosecutor in a criminal case shall not . . . peremptorily strike jurors on grounds of race, religion, national or ethnic background, or sex); see also 3.8:200 and its comments thereto; see Batson v Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986) (Using peremptory challenges to exclude one or more otherwise qualified and unbiased jurors based solely on race is unconstitutional.).

Several proposals have been drafted to amend Model Rule 8.4 to include an anti-discrimination provision, but all have been withdrawn for various reasons, one of which involved concerns that such a proposed rule prohibiting bias and prejudice could infringe First Amendment rights. See Stephen Gillers, Regulation of Lawyers, Statutes and Standards 392 (1997).

For a general discussion of gender bias in the legal profession see Namoi Cahn, "Theoretics of Practice: The Interrogation of Progressive Thought and Action: Styles of Lawyering," 43 Hastings L.J. 1039 (April 1992).

IRPC 8.4(a)(6)

Both IRPC 8.4(a)(6) and its equivalent Model Rule provision, section 8.4(e), provide that it is professional misconduct to "state or imply an ability to influence improperly any government agency or official." IRPC 8.4(a)(6) however states that it is unlawful not only to influence improperly . . . a government agency or official but also "any tribunal" or "legislative body." Assuming "legislative body" encompasses lobbying, other laws that regulate the conduct of lawyers engaged in lobbying work include the Lobbyist Registration Act, 25 ILCS 170/10 (1997), Illinois Governmental Ethics Act, 5 ILCS 420/2-101 (1997), 25 ILCS 170/11.2 (1997), 25 ILCS 170/1 (1997), 25 ILCS 170/2(1997) and 25 ILCS 170/4 (1997).

IRPC 8.4(a)(7)

IRPC 8.4(a)(7) is substantially MR 8.4(f), but is modified by the use of "violation of the Code of Judicial Conduct" instead of "violation of applicable rules of judicial conduct or other law."

IRPC 8.4(a)(8)

There is no Model Rule equivalent to Illinois Rule 8.4(a)(8) regarding the avoidance of governmental student loan repayments. Subparagraph (a)(8) does not prohibit a lawyer from discharging a student loan in a bankruptcy proceeding, but does provide that "the discharge shall not preclude a review of the attorney's conduct to determine if it constitutes bad faith." See Stephen Gillers, Regulation of Lawyers, Statutes and Standards 397 (1997).

IRPC 8.4(a)(9)

There is no Model Rule equivalent to the Illinois anti-discrimination rules IRPC 8.4(a)(9)(A) and (a)(9)(B), which were adopted in October of 1993 to expressly address and prohibit discriminatory conduct.

IRPC 8.4(b) and 8.4(c)

There is no Model Rule equivalent to IRPC 8.4(b) or 8.4(c).

8.4:102      Model Code Comparison

IRPC 8.4(a)(1)

IRPC 8.4(a)(1) states that a lawyer shall not "violate or attempt to violate" the Illinois Rules of Professional Conduct, whereas the Model Code provision, DR 1-102, states in subsection (a)(1) that a lawyer shall not "violate" a Disciplinary Rule. The Model Code omits the "attempt to violate" language as provided in IRPC 8.4(a)(1).

IRPC 8.4(a)(2)

IRPC 8.4(a)(2) states that a lawyer shall not "induce another to engage in conduct, of give assistance to another's conduct, when the lawyer knows that conduct will violate these Rules ." Similar to IRPC 8.4(a)(2), the corresponding Model Code provision, DR 1-102(A)(2), states that "a lawyer shall not circumvent a Disciplinary Rule through actions of another." As stated, the Model Code provision does not explicitly require that the lawyer know that conduct will violate the rules.

"A lawyer may be liable for the actions or statements of a nonlawyer where the lawyer knows about it, orders it, or ratifies it, and where the conduct would violate one of the rules if the lawyer engaged in it." See 3.8:600 (monitoring extrajudicial statements by law enforcement officials); IRPC 5.3; see also IRPC 5.5(b) (A lawyer shall not . . . assist a person who is not a member of the bar in the performance of an activity that constitutes the unauthorized practice of law.).

IRPC 8.4(a)(3)

IRPC 8.4(a)(3) states that a lawyer shall not "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer." The corresponding Model Code provision, DR 1-102(A)(3), states a similar rule in more general terms: "A lawyer shall not engage in conduct involving moral turpitude."

Illinois Rule of Professional Conduct 8.4 does not include a catch-all provision like DR 1-102(A)(6) which states "A lawyer shall not engage in any other conduct that adversely reflects on his fitness to practice law." Rather, mention of a lawyer's fitness in Illinois Rule 8.4 is made only with respect to a criminal act, as set forth in subsection 8.4(a)(3): "a lawyer shall not commit a criminal act that reflects adversely on the lawyer's . . . fitness as a lawyer," and in subsection 8.4(a)(9)(A): "discrimination based on race, sex, religion or national origin by conduct that reflects adversely on a lawyer's fitness as a lawyer . . ."

IRPC 8.4(a)(4)

IRPC 8.4(a)(4) is identical to Model Code Disciplinary Rule 1-102(A)(4).

IRPC 8.4(a)(5)

The general rule forbidding a lawyer to "engage in conduct prejudicial to the administration of justice" is identically stated in both IRPC 8.4(a)(5) and DR 1-102(A)(5). Unlike Disciplinary Rule 1-102(A)(5) however, effective October 15, 1993 Illinois Rule 8.4(a)(5) was amended to prohibit "adverse discriminatory treatment of litigants, jurors, witnesses, lawyers, and others, based on race, sex, religion, or national origin."

IRPC 8.4(a)(6)-(9), 8.4(b), 8.4(c)

There are no Model Code provisions equivalent to IRPC 8.4(a)(6)-(9), 8.4(b), or 8.4(c).

8.4:200   Violation of a Rule of Professional Conduct

Primary Illinois References: IL Rule 8.4
Background References: ABA Model Rule 8.4(a), Other Jurisdictions
Commentary: ABA/BNA § 101:101, ALI-LGL § 2, Wolfram § 3.3

Attempts to influence an opposing counsel's employer have been characterized as a violation of Illinois's Rule of Professional Conduct Rules 8.4(a)(2) and 5.4(c). See Doe v. Roe, 756 F. Supp. 353, 356 (N.D. Ill. 1991). In that case the attorney representing the plaintiff was employed by Northwestern University Law School Legal Clinic. The defendant wrote to Northwestern University's general counsel threatening to sue the University for malicious prosecution after the successful dismissal of the suit unless the University intervened to have the lawsuit dismissed. Id.

Opinions of the Illinois Attorney Registration and Disciplinary Commission Hearing Board and Review Board construing Illinois Rule 8.4 include In re Arnold, 93 Ill. Atty. Reg. & Disc. Comm. SH 436; In re Palmisano, 92 Ill. Atty. Reg. & Disc. Comm. 109; In re Spears, 94 Ill. Atty. Reg. & Disc. Comm. 579; In re White, 92 Ill. Atty. Reg. & Disc. Comm. 115; In re Gordon, 94 Ill. Atty. Reg. & Disc. Comm. 594; In re Ellis, 93 Ill. Atty. Reg. & Disc. Comm. 320; In re Gertzman, 93 Ill. Atty. Reg. & Disc. Comm. 597.

8.4:300   Commission of a Crime

Primary Illinois References: IL Rule 8.4
Background References: ABA Model Rule 8.4(b), Other Jurisdictions
Commentary: ABA/BNA § 101:301, ALI-LGL § 8, Wolfram § 3.3.2

The Supreme Court of Illinois has consistently stated that conviction of a crime involving moral turpitude is conclusive evidence of an attorney's guilt and a ground for disbarment, and that moral turpitude is shown when the crime involves fraud or fraudulent conduct. See In re Vavrik, 512 N.E.2d 1226, 1228 (1987) (citing In re Fumo, 288 N.E.2d 9 (1972)). For example, an indictment for filing five different false loan applications with banks, filing false affidavits before the Supreme Court of Tennessee, and neglecting the cases of seven clients warrants disbarment. See In re Bell, 588 N.E.2d 1093, 1104 (1992) (disbarment was warranted in light of the attorney's several instances and types of misconduct).

Since it is not the conviction itself, however, which gives rise to discipline but the underlying conduct, it is essential that the court consider all of the circumstances of the conviction. See In re Vavrik, supra (citing In re Crane, 178 N.E.2d 349 (1961); see also In re Sims, 579 N.E.2d 865, 865 (1991) (the court held a two-year suspension from the practice of law was warranted for purchase and use of narcotics by a state's attorney).

8.4:400   Dishonesty, Fraud, Deceit and Misrepresentation

Primary Illinois References: IL Rule 8.4
Background References: ABA Model Rule 8.4(c), Other Jurisdictions
Commentary: ABA/BNA § 101:401, ALI-LGL § 2, Wolfram § 3.5.8

Fraud includes anything calculated to deceive, whether it be a single act of combination of circumstances, whether it be the suppression of truth or the suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or by silence, by word of mouth or by look or gesture. In re Witt, 583 N.E.2d 526 (1991). The basic elements of fraud and deceit are: (1) a false representation of material fact; (2) the defendant must know of the falsity, but nevertheless, makes the statement for the purpose of inducing the plaintiff to rely on it; (3) the plaintiff must justifiably rely on the statement for the purpose of inducing the plaintiff to rely on it; and (4) the plaintiff must have suffered damages as a consequence. Id. (citing Burkhart v. Allson Realty Trust, 363 F. Supp. 1286, 1291 (N.D. Ill. 1973)). In order to find fraud there must be a showing that the attorney's failure to disclose was, in fact, done with intent to deceive. See In re Witt, 583 N.E.2d 526 (1991) (citing Exline v. Weldon, 311 N.E.2d 102 (1974)).

For purposes of determining the appropriate sanction for a violation of Illinois Rule 8.4(a)(4), in the interest of fairness and consistency, the primary focus is necessarily on the underlying misconduct. See In re Witt, 583 N.E.2d 526 (1991). For example, in In re Witt the Supreme Court of Illinois suspended the attorney-judge from the practice of law for six months since the judge's actions were considered to be serious breaches of his legal and professional responsibilities. See In re Witt, 583 N.E.2d 526 (1991). Those actions included solicitation and failure to disclose a loan from an attorney practicing before him, which created the potential for partiality, jeopardized the integrity of the judicial system, and created the appearance of impropriety. Id. In determining the proper sanction the court found it significant that, except for the conduct charged in the present case, his record was unblemished, there was no evidence of dishonest motive, and several witnesses, representing both the bench and the bar, testified to his honesty and integrity. Id.

Some attorney misconduct may be automatic grounds for disbarment. For example, attorney misconduct involving commingling and conversion of client funds may be grounds for disbarment, absent mitigating circumstances. See In re Blank, 585 N.E.2d 105, 114 (1991) (citing In re Kitsos, 535 N.E.2d 792 (1989); In re Levin, 514 N.E.2d 174 (1987)). In addition, "where there is conduct involving intentional fraud, disbarment is warranted." See In re Braner, 504 N. E. 2d 102, 106 (1987) (citing In re Saladino, 375 N.E.2d 102 (1978)).

An attorney's embezzlement of funds, for which he was convicted, warrants disbarment, regardless of the fact that he was not acting as an attorney at the time. See In re Vavrik, 512 N.E. 1226, 1229-30 (1987). The court concluded that the attorney should be disbarred in order to protect the public and maintain the integrity of the legal profession since the attorney's conduct indicated a disregard for personal integrity and honesty, and "struck at the very heart of an attorney's duties of trust and loyalty." Id.

On the other hand, for other violations of Illinois Rule 8.4(a)(4) the court has imposed much less severe sanctions. Attorney conduct involving the initiation of phone calls to a police officer for the purpose of bribing the officer so he in turn would persuade a witness to drop the charges warrants a two year suspension from the practice of law. In re Ettinger, 538 N.E.2d 1152, 1162 (1989). The court did not disbar the attorney because of the extensive mitigating circumstances that included the misconduct the attorney was presently being charged with was the only one to mar to his record in practically twenty years of practice, the attorney presented extensive evidence of community involvement and pro bono work, and numerous respected professionals attested to his good character. Id.

Settling large cases for small amounts violates the disciplinary rules prohibiting an attorney from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, and from engaging in conduct that is prejudicial to the administration of justice. See In re Segall, 509 N.E.2d, 988, 990 (1987). This conduct warranted a two year suspension from the practice of law. In reaching this sanction the court reasoned an attempted, unsuccessful deception is as serious an ethical violation as a successful one. Id.

An attorney husband's involvement with the preparation of a backdated letter violated Disciplinary Rule 1-102(a)(4), which is now referred to as IRPC 8.4(a)(4), that forbids conduct involving dishonesty, fraud, deceit or misrepresentation, knowingly making a false statement of law or fact and conduct which tends to bring the courts or the legal profession into disrepute. See In re Stern, 529 N.E.2d 562, 564 (1988). The attorney's behavior warranted only censure and not suspension because the attorney husband did not introduce the falsely dated letter into evidence or attempt to use it any other way. See id.

Neglect

A pattern of neglect weighs heavily in favor of a period of suspension. See In re Smith, 168 Ill. 2d 269, 295 (1995) (citing In re Samuels, 535 N.E.2d 808 (1989); In re Levin, 463 N.E.2d 715 (1984)). For example, the Supreme Court of Illinois held that an attorney's neglect of a matter entrusted to him by his client and misrepresentations made to both his client and the Attorney Registration and Disciplinary Commission regarding his handling of the matter warranted a two-year suspension. In re Guilford, 505 N.E.2d 342, 345 (1987).

However, an attorney who is accused of neglecting a matter entrusted to him and who subsequently informs the Attorney Registration and Disciplinary Commission that the matter is being pursued, does not mislead or improperly deceive the Commission when the stated expectations do not come true. See In re Harris, 514 N.E.2d 462, 465 (1987). In that case, there was a charge of neglect without any showing of prejudice to the attorney's clients or any complaint by those clients. Those circumstances influenced the court in dismissing the complaint. Id.

Misrepresentation

An attorney's misrepresentation to his client that a favorable outcome had been obtained, because he had unintentionally failed to file notice of a claim, warrants censure. See In re Mason, 522 N.E.2d 1233, 1237 (1988). A censure was the appropriate sanction because of the attorney's candor and forthrightness in admitting actions when the disciplinary investigation began. Id. at 169. However, in another case the court held an attorney should be suspended for a period of six months from the practice of law after he disregarded the instructions of his client. See In re Tepper, 533 N.E.2d 838, 844 (1988). In that case the court believed a six month suspension was the appropriate sanction as opposed to a censure because the attorney attempted to mitigate one ethical violation by relying on another. Id. at 128. Specifically the attorney argued that his misconduct in acting against his client's directions by recording the deed he held in escrow was mitigated by his mistaken belief that the terms of the escrow agreement had been fulfilled and that he therefore had the authority to record the deed. Id. at 127. The attorney however also had already conceded that he breached his escrow duties by recording the deed. Id.

Forgery

Forging endorsement on a check that was jointly payable to attorney and client and using the money from the check for over three months before repaying it was a violation of Disciplinary Rule 1-102(a)(4) prohibiting conduct involving fraud and deceit. See In re Altmann, 538 N.E.2d 1105-6 (1989). The court considered mitigating factors of attorney's emotional distress due to separation from wife and conflict with wife's family in determining the proper sanction. Id.

On the other hand, an attorney's endorsement of co-counsel's name on back of client's settlement check so that attorney could promptly deposit check and begin negotiations with client's creditors did not constitute forgery, nor did it constitute fraud, deceit or misrepresentation within the meaning of Disciplinary Rule 1-102(a)(4), for there was no indication at the time of the endorsement that the attorney sought to deprive co-counsel of his share of attorney fees or to conceal funds from co-counsel. See In re Johnson, 552 N.E.2d 703, 709 (1989).

8.4:500   Conduct Prejudicial to the Administration of Justice

Primary Illinois References: IL Rule 8.4
Background References: ABA Model Rule 8.4(d), Other Jurisdictions
Commentary: ABA/BNA § 101:501, ALI-LGL § 2, Wolfram § 3.3.2

The duty imposed on lawyers by IRPC 8.4(a)(5) (and its pre-1990 equivalent Code of Professional Responsibility Rule 1-102(a)(5)) encompasses the entire court system by requiring lawyers to refrain from "conduct that is prejudicial to the administration of justice." See In re Smith, 659 N.E.2d 896, 904 (1995). In addition, the Supreme Court of Illinois has held that lawyers have a duty to assist the court in administering justice and arriving at just results. Id. (citing In re Braner, 504 N.E.2d 102 (1987)). One aspect of the duty to assist in the administration of justice requires lawyers engaged in litigation to aid the court in "expeditious consideration and disposal of cases." Id.

An overwhelming amount of serious misconduct, the lack of mitigating factors, and the attorney's failure to comprehend the wrongfulness of his actions warrants disbarment. See In re Lewis, 562 N.E.2d 198, 214 (1990). The attorney's misconduct included misrepresentation in billing, failure to deposit client funds in a separate identifiable account, commingling of client funds with his own, conversion of client funds, knowingly filing documents that contained false statements, and conduct in securing his client's agreement to dismiss disciplinary proceedings against him in return for a payment of settlement funds. See In re Lewis, 562 N.E.2d 198, 214 (1990).

In a situation involving such serious and so many violations of the Illinois Rules of Professional Conduct the fact the attorney had not been previously disciplined and had performed some service to the legal profession did not outweigh the extent and severity of his misconduct. Id. at 345-46. In addition, the court held an attorney cannot rely on ignorance of the Rules of Professional Conduct as an excuse for his behavior. Id.

Obstructing a client deposition in contravention of a direct court order, refusing to allow opposing counsel to use the telephones, attempting to mislead the court as to the motivations behind his unprofessional conduct, refusing to unequivocally concede that his conduct was improper, and failing to satisfy the court that he would comport himself in a civilized and professional manner constituted unprofessional misconduct that warranted the suspension of an attorney for one year. See Castillo v. St. Paul Fire & Marine Ins. Co., 828 F. Supp. 594, 604 (C.D. Ill. 1992). The case was one of first impression in the district and the attorney may not have expected the court's condemnation of his conduct. However, that fact carried little weight. See Castillo, 828 F. Supp. at 603. See In re Smith, 659 N.E.2d 896, 909 (1995) (a seventeen month suspension was warranted since the attorney neglected client legal matters, failed to expedite litigation, failed to communicate with clients, failed to refund unearned retainer fees).

In addition, attorney conduct involving a driver's license suspension and DUI convictions constituted misconduct prejudicial to the administration of justice warranting suspension from the practice of law. In re Kunz, 524 N.E.2d 544, 545-47 (1988). An attorney's cooperation with an extortion demand made to his client and subsequent failure to report the demand for more than four years was also conduct prejudicial to the administration of justice. In re Masters, 438 N.E.2d 187, 193 (1982).

8.4:600   Implying Ability to Influence Public Officials

Primary Illinois References: IL Rule 8.4
Background References: ABA Model Rule 8.4(e), Other Jurisdictions
Commentary: ABA/BNA § 101:701, ALI-LGL § 173

Both lawyer codes prohibit a lawyer from claiming an ability to exert improper influence on a judge or other official, employing language similar to that in the last clause of subsection (a)(2) of IRPC 8.4. See ABA Model Code, DR 9-101(C) (1969) ("A lawyer shall not state or imply that he is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official"); MR 8.4(e) (1983) ("It is professional misconduct for a lawyer to: . . . (e) state or imply an ability to influence improperly a government agency or official.")

8.4:700   Assisting Judge or Official in Violation of Duty

Primary Illinois References: IL Rule 8.4
Background References: ABA Model Rule 8.4(f), Other Jurisdictions
Commentary: ABA/BNA § , ALI-LGL § 173

8.4:800   Discrimination in the Practice of Law

Primary Illinois References: IL Rule 8.4
Background References: Other Jurisdictions
Commentary: ABA/BNA § 91:301

Effective October 15, 1993, Illinois Rule 8.4(a)(9)(A) and 8.4(a)(9)(B) were adopted to expressly address and prohibit discriminatory conduct. At the same time, Illinois Rule 8.4(a)(5) was amended to prohibit "adverse discriminatory treatment of litigants, jurors, witnesses, lawyers, and others, based on race, sex, religion, or national origin."

8.4:900   Threatening Prosecution

Primary Illinois References: IL Rule 8.4
Background References: Other Jurisdictions
Commentary: ABA/BNA § 1:801, 61:601

Illinois apparently views threatening prosecution (or professional disciplinary action) to obtain an advantage in a civil matter as prejudicial to the administration of justice. See 1.2:100 supra.

8.5   Rule 8.5 Disciplinary Authority; Choice of Law

8.5:100   Comparative Analysis of Illinois Rule

Primary Illinois References: IL Rule 8.5
Background References: ABA Model Rule 8.5, Other Jurisdictions
Commentary:

8.5:101      Model Rule Comparison

The first sentence of IRPC 8.5 is substantially equivalent to the rule as originally issued on February 8, 1990, to be effective August 1, 1990, which read as follows:

A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction although engaged in practice elsewhere.

This language was identical with the MR language as it then stood.

The present language of IRPC 8.5 is substantially identical with the present MR language, as amended August 11, 1993.

The Illinois Code had no provisions relating to this subject.

8.5:102      Model Code Comparison

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

8.5:200   Disciplinary Authority

Primary Illinois References: IL Rule 8.5
Background References: ABA Model Rule 8.5, Other Jurisdictions
Commentary: ABA/BNA § 101:2001, ALI-LGL § 5, Wolfram § 3.2

8.5:300   Choice of Law

Primary Illinois References: IL Rule 8.5
Background References: ABA Model Rule 8.5, Other Jurisdictions
Commentary: ABA/BNA § 101:2101, ALI-LGL § 2, Wolfram § 2.6.1