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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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
3.1:100 Comparative Analysis of Illinois Rule
This Rule is identical with MR 3.1.
There was no precise parallel in the Illinois Code, although Code Rules 2-109(a)(1) and (2) and 7-102(a) touch on the problem.
This IRPC parallels similar rules of procedure, such as Federal Rule of Civil Procedure 11, and Illinois Code of Civil Procedure Rule 2-611.
[The discussion of this topic has not yet been written.]
3.1:200 Non-Meritorious Assertions in Litigation
IRPC 3.1 is identical to MR 3.1. The rule prohibits a lawyer from bringing or defending a lawsuit unless there is a basis for doing so that is not frivolous, which includes a good-faith argument for extension, modification or reversal of existing law. Defense attorneys in criminal proceedings, however, are permitted to require the prosecution to prove every element of the case.
In Illinois, filing frivolous and defamatory lawsuits can warrant disbarment. In re Jaffree, 444 N.E.2d 143, 149 (Ill. 1982). The Illinois Supreme Court finds meritless suits to be particularly egregious when aimed at members of the judiciary, or other attorneys, in apparent retaliation for lost cases. See id. (Court disbarred attorney for filing over 40 frivolous lawsuits and appeals, many of which were aimed at the judiciary, and included numerous scurrilous and defamatory statements about the judiciary, and certain judges); and In re Sarelas, 277 N.E.2d 313, 318 (Ill. 1971) (attorney was suspended for two years and until further order of the Court for filing 15 meritless and defamatory lawsuits and appeals, many of which were directed against the opposing counsel in previous cases, as well as judges who rendered judgments against him or his clients). Appeals of court decisions which make baseless accusations of judicial misconduct will also be subject to discipline. See In re Phelps, 303 N.E.2d 13 (Ill. 1973) (attorney suspended for two years and until further order of the Court for filing, in the course of appealing a single divorce action, papers in Illinois Appellate Court, Illinois Supreme Court, and Federal District Court which contained defamatory statements regarding certain judges, accusing them of illegal acts, collusion, and acting in a coercive and discriminatory manner against the client).
Even a single improper attack against a judge or opposing counsel may be cause for discipline, including disbarment. See Sarelas, 277 N.E.2d at 318 (Court noted that attorney's course of conduct in filing meritless lawsuits and making defamatory scurrilous charges against judges and lawyers would be sufficient, in a single incident, to warrant disbarment); and People ex rel. Chicago Bar Association v. Standidge, 164 N.E. 844 (Ill. 1928) (although attorney's only instance of misconduct, attorney suspended for six months for instituting a suit against three appellate court judges, charging that the judges had "wantonly" made false findings against him).
In Illinois, an attorney who has a serious grievance against the judiciary has "the right and duty" to submit that grievance to the proper authorities. See Jaffree, 444 N.E.2d at 149. But the Illinois Supreme Court has warned it will not tolerate nor permit attorneys to direct unjust criticism, insulting language, and offensive conduct toward judges, which "tend to bring the courts and the law into disrepute and to destroy public confidence in their integrity." Id. Attorneys will also not be "permitted to abuse the license and privilege to practice law by instituting groundless lawsuits against the members of the bar, the bench, and laymen who cross them." Sarelas, 277 N.E.2d at 319.
An expression of regret in making scurrilous and defamatory charges against a member of the judiciary can be considered in mitigation of punishment for making such charges. See People ex rel. Chicago Bar Ass'n v. Sherwin, 4 N.E.2d 477 (Ill. 1936) (in disbarment proceeding, attorney not disbarred for making statement in petition charging judge with "vindictive and hostile spirit" towards attorney, when, after petition was filed, attorney asked leave to retract petition and expressed regret towards the offended judge). On the other hand, an attitude of continual and unrepentant hostility towards the judiciary during the course of disciplinary proceedings will be taken as an aggravating factor for punishment. In Jaffree, the court found that an attorney who had filed several meritless suits against judges was "incapable of conforming his conduct to an acceptable standard," based in part upon papers filed in support of lawsuits, and statements made before judges and the Attorney Registration and Disciplinary Committee, which clearly showed that the attorney "harbored extreme contempt for the judicial system and members of the judiciary." Jaffree, 444 N.E.2d at 149-150. The court considers the use of unprofessional, scurrilous, and abusive language in making charges against the judiciary or opposing counsel to be extremely improper, and will take such conduct into account when determining the level of discipline to be applied. See id. 149-150; and Sarelas, 277 N.E.2d at 318-319. Even an attorney who exhibits "self-righteousness" in defending prior conduct will be viewed negatively by the court. See In re Madsen, 370 N.E.2d 199, 204 (Ill. 1977).
Frivolous suits or hostile conduct towards the ARDC may also be taken into account against the offending attorney in a disciplinary proceeding. See Sarelas, 277 N.E.2d 313 (court noted, in justification for two year suspension, that the offending attorney was abusive and quarrelsome towards the ARDC, and carried out threats of lawsuits against persons involved in the proceedings). See also Madsen, 370 N.E.2d 199 (in suspending attorney for 30 days for ethics violations, Court noted the attorney's filing of an unsuccessful civil action against the Administrator of the ARDC while disciplinary proceeding was pending).
The Court has not looked favorably upon an appeal of an ARDC disciplinary petition which consists merely of a repetition of the same baseless accusations which gave rise to the disciplinary proceeding. See Sarelas, 277 N.E.2d at 318.
Further, an attorney who requests the press to publicize a suit against a judge will likely be viewed as trying to bring the judiciary into public disrepute, warranting discipline. See People ex rel. Chicago Bar Ass'n v. Metzen, 125 N.E. 734 (Ill. 1919) (attorney disbarred for bringing suit against a trial judge for damages on account of his ruling and preparing newspaper articles to gain publicity for his suit); and In re Mason, 210 N.E.2d 203 (Ill. 1965) (attorney suspended for one year for bringing suit against trial judge and requesting a reporter to print a story concerning the suit).
It should also be noted that an attorney who makes scurrilous or defamatory statements against members of the judiciary, judicial bodies, or other attorneys outside of course of a legal proceeding can be subject to discipline. IRPC Rule 8.2(a) provides that, "A lawyer shall not make a statement the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicative officer, public legal officer, or of a candidate for election or appointment to judicial or legal office." In In re Martin-Trigona, the Illinois Supreme Court denied an applicant admission to the bar in part due to correspondence sent to the First District Committee on Character and Fitness, in which he made false and defamatory charges against the Committee, its Counsel, the General Assembly, the Illinois Supreme Court, and the Illinois Bar. See In re Martin-Trigona, 302 N.E.2d 68 (Ill. 1973). The applicant had also filed several meritless and defamatory motions against judges, and "in the course of other business relations," wrote a disparaging letter to a lawyer suffering from cerebral palsy, which contained insulting comments about his disability. Id. at 73. The Court indicated that an attorney who engaged in such conduct as exhibited by the applicant would warrant disciplinary action. See id.
The Court has disbarred at least one attorney who, in correspondence sent to, or motions filed with, state judges, state administrative officials, and state and federal prosecutors, made baseless accusations of crime and corruption against several judges. See In re Palmisano, 70 F.3d 483 (7th Cir. 1995). In a federal disbarment proceeding for the same attorney, the Seventh Circuit Court of Appeals found that such ex parte communications warrant disbarment in federal as well as state court. See id.
Both the Illinois Supreme Court and the Seventh Circuit Court of Appeals have ruled that attorneys do not have a First Amendment right to file frivolous lawsuits against judges or make false and scurrilous charges against them. See In re Jaffree, 444 N.E.2d 143, 147 (Ill. 1982); and In re Palmisano, 70 F.3d 483, 487 (7th Cir. 1995). The Seventh Circuit ruled that the Constitution does not give attorneys the same freedom of speech as participants in political debate, and that courts can "require attorneys to speak with greater care and civility than is the norm in political campaigns." Id. According to the court, an attorney is not absolutely liable for every statement that turns out to be incorrect, but when an attorney lacks any support for spurious allegations of misconduct towards judges, the Constitution permits sanction. See id. The court has equated attorney sanctions for frivolous lawsuits to journalist liability for publishing a statement with actual knowledge of falsity, or with reckless disregard of truth or falsity. See id. But see Standing Committee v. Yagman, 55 F.3d 1430 (9th Cir. 1995) (attorney statements made and publicized which impugn the integrity of judges are protected under the First Amendment, unless the statements are capable of being proved true or false; disciplinary authority must demonstrate that attorney's statement implies an assertion of fact, and must prove that fact to be false).
Illinois has also ruled that what constitutes a "frivolous" lawsuit under disciplinary proceedings is not so unclear, overbroad, and subjective to be a violation of due process rights. See Jaffree, 444 N.E.2d at 147. The Court has stated, "We do not consider the word 'frivolous' to be a term which is so vague and ambiguous as to deny notice of what conduct is improper." Id.
Although it is clear that an attorney who brings a frivolous lawsuit against other lawyers can be subject to grave disciplinary consequences, it is less clear what happens when the attorney directs another attorney to file the lawsuit. In In re Greenblatt, 92 CH 269 (Hearing Board, May 23, 1994), the ARDC Review Board found that an attorney did not violate Rule 3.1 when he hired other attorneys to file a defamation lawsuit on his behalf against a client who had reported alleged misconduct to the State's Attorney Office. The Review Board indicated that "Rule 3.1 is directed at the attorney working on behalf of the client rather than the client himself." Id.
3.1:300 Judicial Sanctions for Abusive Litigation Practice (Especially Rule 11)
Illinois Supreme Court Rule 137, "Signing of Pleadings, Motions and Other Papers—Sanction," is modeled on Rule 11 of the Federal Rules of Civil Procedure, as amended in 1983. Because the rules have similar language, Illinois courts look to Rule 11 case law for guidance in applying Rule 137. See Edward Yavitz Eye Center, Ltd. v Allen, 608 N.E.2d 1235, 1239 (Ill. App. 2d Dist. 1993).
Rule 137 requires that every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record. The signature constitutes a certification that to the best of the attorney's knowledge, information, and belief formed after reasonable inquiry, the pleading, motion, or paper is well grounded in fact and warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation. A "paper" can include a filing of appearance and jury demand. See Hernandez v. Williams, 632 N.E.2d 49, 52 (Ill. App. 3d Dist. 1994).
The rule authorizes, but does not mandate, the trial court to award sanctions for violations of these requirements, which typically consist of payment of court costs and reasonable attorney's fees incurred by the opposing party. Rule 137 is penal in nature, so it is strictly construed. See Dowd & Dowd Ltd. v. Gleason, 693 N.E.2d 358, 372 (Ill. 1998). A trial court's ruling on a sanctions motion will not be overturned unless the reviewing court finds an abuse of discretion. See id. The rule explicitly requires a judge, in ordering sanctions, to set forth with specificity the reasons and basis of any sanction.
In 1993, Rule 11 was amended to include a 21 day safe harbor period to withdraw or correct papers after a motion for sanctions has been filed. Rule 137 has no such language. Illinois has split authority on whether sanctions should be applied upon a voluntary dismissal of an original pleading or withdrawal of original pleading and replacement with a proper amended pleading. Compare Couri v. Korn, 560 N.E.2d 379, 386 (Ill. App. 3d Dist. 1990) (attorney should not be sanctioned for original pleading) with Allen, 608 N.E.2d at 1242, Pines v. Pines, 635 N.E.2d 1301 (1st Dist, 1994) (sanctions proposed for first complaint despite withdrawal of the first complaint and finding that second amended complaint has merit). Under Federal Rule 11, the United States Supreme Court has ruled that pleadings which have been voluntarily dismissed are still subject to sanctions. See Cooter & Gell v. Hartmarx Corp., 496 U.S.384 (1990).
Rule 11 was also amended in 1993 to hold law firms jointly responsible for violations committed by partners or associates. Although Rule 137 has no explicit language to that effect, there is case law holding that a law firm is jointly and severally liable for sanctions imposed for conduct of its associate, since the associate was acting in exercise of his duties and within scope of authority at the time of the sanctioned conduct. See Brubakken v. Morrison, 608 N.E.2d 471 (Ill. App. 1st Dist. 1992).
Case law on Rule 2-611 of the Illinois Code of Civil Procedure, the predecessor to Rule 137, is typically used in applying Rule 137, since the two rules have similar language and elements. See, e.g., Regan v. Ivanelli, 617 N.E.2d. 808, 818 (Ill. App. Dist. 1993), Allen, 608 N.E.2d at 1239.
Rule 137 imposes an objective standard of reasonableness in filing or advancing meritorious legal arguments. See Edwards v. Estate of Harrison, 601 N.E.2d 862, 867 (Ill. App. 1st Dist. 1992). Subjective good faith is not sufficient to avoid sanction under Rule 137. See id. Like Rule 11, Rule 137 does not provide for a "pure heart, empty head," defense to filing a meritless position in a court paper. Rather the court determines whether the paper violates Rule 137 by determining what a reasonable attorney would have done under circumstances that existed at the time the pleading was filed. See id. Whether a filing was reasonable is supposed to be determined by circumstances that existed at time pleading was filed, and not in hindsight, after the case has been concluded and all issues of fact and law resolved. See Hernandez, 632 N.E.2d at 52. It is also not per se unreasonable to present a position in a court paper simply because the opponent has a strong claim or defense. See In re Marriage of Sykes, 596 N.E.2d 1226 (1992). If the attorney can present an argument in support of the client's position that has merit in the eyes of a reasonable attorney, the attorney will generally be protected from Rule 137.
Reasonable factual and legal basis
In defending against a civil lawsuit, it is not enough that an attorney file a denial based solely on the belief the plaintiff cannot prove the allegations made in a complaint, or that the defendant has the right to make the plaintiff prove allegations to the jury. IRPC Rule 3.1 allows only criminal defendants or civil litigants facing the possibility of jail to defend solely by requiring every element of the case be established. See Hernandez v. Williams, 632 N.E.2d 49 (Ill. App. 3d Dist. 1994). When a law firm in a civil case failed to interview its client, prior to filing an appearance, and where the law firm presented no case for the defense of the client at trial, sanctions were warranted under Rule 137. See id.; see also Malone v. Papesh, 627 N.E.2d 1211 (Ill. App. 3d Dist. 1994) (court awarded sanctions against attorney who, in the face of overwhelming evidence in support of complaint, signed generic answers denying the allegations of the complaint without first consulting client); In re Caruso, 542 N.E.2d at 378-79 (lawyer sanctioned for filing denial of paternity for client when blood test confirmed a 99.9 percent probability that the client was the father, despite lawyer's belief that it was his duty to fight claim regardless of the strength of the other party's evidence); Amadeo v. Gaynor, 701 N.E.2d 1139 (Ill. App. 2d Dist. 1998) (law firm sanctioned for asserting front driver in rear-end collisions was negligent in failing to keep proper lookout and give proper warning to rear driver when stopping suddenly, where the firm’s attorney did not cite a single statute or case to support the novel negligence theory, and the firm had already failed in using the theory in a previous case); and Allen, 608 N.E.2d 1235 (cursory examination of contract would have indicated that the complaint was untenable, and, therefore, should never have been filed).
On the other hand, an attorney generally won't be subject to sanctions simply because the trial court does not agree with the attorney's theory of the case, or interpretation of case law and statutes. The purpose of Rule 137, as interpreted by courts, is not to penalize litigants simply because they were unsuccessful in litigation, but to penalize litigants who bring vexatious or harassing actions that are based on false statements or are without legal foundation. See Regan, 617 N.E.2d at 818. An attorney may, in support of an action, rely upon a case that only has a "tenuous" relation factually to the matter at hand, and still avoid sanction. See Lecrone v. Leckrone, 580 N.E.2d 1233 (Ill. App. 1st Dist. 1991).
Sanctions are "not intended to chill an attorney's enthusiasm or creativity in pursuing factual or legal theories." Id. at 1237, quoting Advisory Committee Notes to Federal Rule 11, 97 F.R.D. 165, 199 (1983). As long as an attorney provides "objectively reasonable arguments" in support of the client's position, sanction should not be imposed, regardless if the arguments turn out to be unpersuasive or incorrect. See Polsky v BDO Seidman, 688 N.E.2d 364 (Ill. App. 2d Dist. 1997) (despite trial judge's finding that a tortfeasor release clearly encompassed defendant, sanctions award was overturned because the legality of "general" tortfeasor releases had not been addressed by the district appellate court, and authority from another district supported plaintiff's claim). See also Mendelson v. Ben A. Borenstein & Co., 608 N.E.2d 187 (Ill. App. 1st Dist. 1992) (in action against building contractor, no authority was cited and facts weighed heavily against plaintiff, yet no bad faith, as building appeared to have settled unnaturally); Fischer v. Brombolich, 616 N.E.2d 743 (Ill. App. 5th Dist. 1993) (no sanctions warranted where attorney's position was based on reasonable construction of statutes); Zabel v. Cohn, 670 N.E.2d 877, 885 (Ill. App. 5th Dist. 1996) (sanctions order overturned where cause of action was dismissed on res judicata grounds, but reviewing court found reasonable question to exist as to the effect of the earlier judgment).
An attorney should not be sanctioned merely for arguing a claim or defense in the face of contradictory evidence, if there is some evidence that reasonably supports the attorney’s argument. See Gleason, 693 N.E.2d at 372 (although two employees of plaintiff denied in deposition testimony that departing partners solicited clients in violation of noncompete agreement, the plaintiff’s claim was not sanctionable since plaintiff had other evidence that solicitation did in fact take place).
The draft Restatement provides some guidance on determining whether sufficient legal grounding exists: look to "whether lawyer in question or another lawyer established a precedent adverse to the position being argued, whether new legal grounds of plausible weight can be advanced, whether new or additional authority supports the lawyer's position, or whether, for other reasons, such as a changes in the composition of a multi-member court, arguments can be advanced that have a substantially greater chance of success." Restatement (Third) of the Law Governing Lawyers § 170 cmt. d (Tentative Draft No. 8 1997). As noted in the Comment to MR 3.1, the law is not always clear and never is static, and account must be taken, when determining the proper scope of advocacy, of the law's ambiguities and potential for change.
The attorney must ensure the truth of all facts relied upon in a court paper. If the court believes that a paper contains or is based upon a false statement, the court could issue sanctions under Rule 137, even if the false statement was not the reason for dismissal of the case. See Pritzker v. Drake Tower Apartments, Inc., 670 N.E.2d 328 (Ill. App. 1st Dist. 1996) (abuse of discretion for not issuing sanctions where appellate court found that plaintiff was, at the very least, reckless in signing counteraffidavits, and defendants made strong case for concluding that plaintiff deliberately lied under oath to extract unwarranted settlement).
Rule 137 provides that a pleading, motion, or other paper cannot be filed unless there is reasonable inquiry as to whether the paper has a meritorious factual and legal basis. Federal Rule 11 was amended in 1993 to exclude from sanctions allegations and other factual assertions which, when filed, may lack evidentiary support, but "are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery." Further, denials of factual assertions meet amended Rule 11 if, when so identified, "are reasonably based on a lack of information and belief." However, Rule 137 has no such language, and there appears to be no Illinois case law which would excuse a lack of investigation due to a reasonable belief that discovery will provide sufficient basis for a claim or defense.
One court has cited the following factors in determining what constitutes a reasonable inquiry: how much time for investigation was available to the signer; whether the attorney had to rely on a client for information as to the facts underlying the filing; whether the pleading, motion, or paper was based on a plausible view of the law; and whether the attorney depended on forwarding counsel or another member of the bar. See Chicago Title and Trust Co. v. Anderson, 532 N.E.2d 595, 600 (Ill. App. 3d Dist. 1988), quoting Advisory Committee Notes to Federal Rule 11, 97 F.R.D. 165, 199 (1983). The importance of the reasonable inquiry is to ensure that, after investigation, the attorney who signs the filing has knowledge sufficient to certify that the paper is well grounded in fact. See id. at 600-601.
Under Rule 137, an attorney is required to objectively review the information submitted by the client, and look for any important discrepancies, inconsistencies, or gaps in the information provided, to determine if it factually supports the client's claim. See Regan, 617 N.E.2d at 818. If the attorney finds that the client’s representations are insufficient to support the contention being made, the attorney is expected to seek additional supporting information that is “readily ascertainable” from third parties. Anderson, 532 N.E.2d at 601 (sanction for filing answer to mortgage foreclosure where attorney knew that client’s records of mortgage payments were incomplete, and that there was nothing in the record to suggest that former tenants of client, who had paid rent directly to mortgage holder in the form of third party checks, could not be located and subpoenaed for records of such payments).
However, at least one court has ruled that if it was reasonable for the attorney to rely on the client’s information alone in learning the facts underlying a filing, an attorney has no further duty to check the client’s facts. See Couri v. Korn, 560 N.E.2d 379 (Ill. App. 3d Dist. 1990) (abuse of discretion for sanctioning attorney who did not investigate the truth of client’s statement, where the case involved an oral contract with no apparent witnesses).
Rule 137 does not explicitly state that an attorney has a duty, after filing, to amend or withdraw the paper upon the discovery of new information which shows that the paper violates Rule 137. However, the court in Anderson ruled that an attorney can nonetheless not sit silent when new information contradicts assertions made in the original paper; the duty to ensure a paper reflects the truth continues after the filing of the paper. See Anderson, 532 N.E.2d at 602. An attorney who is aware of new information after the original filing must report forthrightly to the court and opposing counsel any errors in the original factual assertion. See id. (sanctions for failure to admit in response to plaintiff's summary judgment motion new information that attorney did not have when he filed answer). See also 3.3:200 below.
There is authority to suggest that even though the trial judge believes that additional investigation was feasible and could have been done to bolster the claim or denial, the judge should not impose Rule 137 sanctions unless there is a finding that had there been more investigation, a frivolous lawsuit would not have proceeded. See Toland v. Davis, 693 N.E.2d 1196 (Ill. App. 3d Dist. 1998) (abuse of discretion of the trial judge in awarding sanctions where judge found a lack of investigation in support of breach of warranty claim, even though the controversy between the parties was limited only to the interpretation of the terms of the warranty, the case was never adjudicated on the merits due to a settlement agreement, and there was a voluntary dismissal of the action).
Bad faith or improper purpose
Besides requiring the attorney to make sure a pleading, motion, or paper is sufficiently well grounded in law and fact, Rule 137 also requires that the action is not being taken "for any improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation." Compare the Comment to MR 3.1, which states that although a claim or defense may arguably have some basis in law, it is nonetheless frivolous if it is brought "primarily for the purpose of harassing or maliciously injuring a person."
However, it does not appear that sanctions under Rule 137 have been applied for bringing or defending a suit for an improper purpose when the action had sufficient basis in law and fact. In Gleason, the Illinois Supreme Court declined to overturn a trial court denial of sanctions where defendants complained that plaintiff's deposition testimony revealed he initiated the lawsuit against them to obstruct their efforts to take away a major client. See Gleason, 693 N.E.2d 358. The Court found that since the plaintiff could prevail on several viable theories of recovery, the Court could not say the lawsuit "lacks a proper purpose." Id. at 373. See also, Doe v. Roe, 681 N.E.2d 640, 651-52 (Ill. App. 4th Dist. 1997) (no finding of bad faith in filing motion for sanctions against plaintiff personally rather than against her counsel, since there was genuine question as to plaintiff's misrepresentation of facts essential to complaint).
The Seventh Circuit, nonetheless, has held that sanctions under Rule 11 should be imposed for a complaint brought in bad faith, even though the complaint colorably has objective merit. When a lawsuit is suspected of being brought for a reason other than for the resolution of the claims cited in the complaint, the trial judge must make an inquiry as to whether the suit has been brought to harass or for some other improper purpose, regardless if the suit has some plausibility. See Szabo Food Service, Inc. v. Canteen Corp., 823 F.2d 1073, 1082-1083 (7th Cir. 1987).
Illinois Supreme Court Rule 375 governs appeals which are found to be frivolous or brought with improper purpose, and is similar in language to Rule 137. See 155 Ill.2d. R. 375. Appeal briefs that ignore the plain language of statutes and long-standing precedent by state Supreme Court, fail to provide authority or good-faith argument for asserted construction of statutes, and fail to advance new and supportable reason why law should be modified, will be sanctioned. See State Farm Fire and Cas. Co. v. Miller Elec. Co., 596 N.E.2d 169 (Ill. App. 2d Dist. 1992). In federal court, Federal Rule of Appellate Procedure 38 addresses sanctions for frivolous or bad-faith appeals. The Seventh Circuit has ruled that where an argument made in an appeal "is so devoid of any possible foundation in reason or history or precedent," the appeal is frivolous and therefore sanctionable." In re Reese, 91 F.3d 37, 40 (7th Cir. 1996).
Criminal defense attorneys should also be aware that constitutional law prohibits an appointed lawyer who believes an appeal to be frivolous from withdrawing unless the lawyer first submits a brief that points towards anything in the record which might arguably support the appeal. See Anders v California, 386 U.S. 738 (1967).
Lawyers who pursue baseless or bad-faith lawsuits may be liable for damages to the targets of such litigation. A target of an unsuccessful action terminated in the target's favor can sue, under the tort of malicious prosecution, both the plaintiff of the unsuccessful action, and the plaintiff's attorneys. See Cult Awareness Network v. Church of Scientology International, 685 N.E.2d 1347 (Ill. 1997). To prevail on a malicious prosecution claim, the target of unsuccessful litigation must show that the underlying action was terminated in the target's favor, that the action was brought without probable cause and with malice, and that the target must plead and prove some "special injury" or special damage beyond the usual expense, time, or annoyance in defending a lawsuit. See id. In Cult Awareness Network, the Illinois Supreme Court found 21 meritless lawsuits against plaintiff during a 17-month period, filed in jurisdictions ranging from New York to California, to constitute a special injury in a malicious prosecution action, regardless of whether the suits were filed concurrently rather than consecutively. See id. Voluntary dismissal of the underlying action still counts as a termination favorable to the target under the tort of malicious prosecution, and does not constitute a defense against the tort. See id. at 1352-1354.
Further, the court in Cult Awareness Network ruled that the existence of Illinois Supreme Court Rule 137 as providing a remedy for groundless lawsuits does not preempt the tort of malicious prosecution. See id. 1353-1354. This ruling partly affects the holding in Levin v. King, where an Illinois appellate court refused to recognize a suit allegedly intended to inhibit citizen protest, known as a "Strategic Lawsuit Against Public Participation" or a “SLAPP suit," as extraordinary civil litigation constituting a special injury under a malicious prosecution action. See Levin v. King, 648 N.E.2d 1108 (Ill. App. 1st Dist. 1995). In that case, the court partly based its holding upon the belief that Rule 137 provides a sufficient remedy for such suits. See id. at 1114-1115.
However, as another reason for dismissing the complaint, the Levin court reasoned that the plaintiff, who had been the target of the alleged groundless lawsuit for tortious interference with advantageous business relationship, did not allege with specificity that the lawsuit had or could have an impact on his right to publicly protest a proposed housing development. See id. at 1111-1114. The court found that a plaintiff could not meet the special injury requirement simply by asserting that the litigation had "chilled" the plaintiff's exercise of free expression and petition of government, and had induced fears of adverse financial consequences. See id. at 1114. The court believed the plaintiff suffered from nothing different than the fear and anxiety sustained in the normal course of defending a lawsuit. See id. The plaintiff's complaint contained no factual basis to support the allegation that the suit together with the remedy sought had the peculiar effect of inhibiting the plaintiff's protests. See id. at 1112, 1114. There was no attempt to enjoin conduct, attach property, repetitiously litigate the same issue, or oppressively force the target to defend a controversy that had been judicially determined. See id. Under the reasoning of Levin, therefore, malicious prosecution claims spurred by SLAPP suits would likely face substantial hurdles in Illinois courts.
In addition to malicious prosecution, attorneys may also be subject to the tort of civil conspiracy to commit malicious prosecution. See Cult Awareness Network, 685 N.E.2d at 1350. Another possible tort is abuse of process. See ABA/BNA Lawyers' Manual on Professional Conduct, 61:101.
3.1:500 Complying with Law and Tribunal Rulings
The Illinois Supreme Court has stated that it has long recognized "that exposing one's self to contempt proceeding is an appropriate method of testing the validity of a court order." People v. Shukovsky, 538 N.E.2d 444, 447 (Ill. 1988). However, the Court has also stated that “when an attorney subjects himself or herself to contempt proceedings in order to test the validity of a court order, it is the attorney who is the alleged contemnor and is the one who must account for the conduct; it is not the party for whom the attorney acts.” Id. at 448. In Shukovsky, a prosecution attorney refused to comply with pretrial order directing him to comply with the defendant's subpoena duces tecum. The attorney appealed the contempt order, arguing that he subjected himself to a contempt conviction in good faith on behalf of the "People" to test the validity of the pretrial order. See id. at 447. Nonetheless, the Court considered the contempt order as criminal in nature and issued to punish the conduct of refusal. See id. The appeal of the contempt order was deemed to be collateral and not a part of the original proceeding between the State and defendant. See id. The Court upheld the contempt order, finding that although prosecutor subjected himself to contempt in good faith, the contempt order was nevertheless necessary to preserve respect for the judicial system. See id. In addition, the Court concluded that when a prosecutor relies on the use of contempt proceeding to test the validity of a pre-trial order, the ensuing delay may be cause for dismissal of the charges against defendant due to the speedy trial doctrine. See id.
When a trial order is subject to two reasonable interpretations, at least one court has ruled that an attorney is not subject to sanctions under Rule 137 for following an unintended, yet reasonable interpretation. See Lewy v. Koeckritz, 570 N.E.2d 361 (Ill. App. 4th Div. 1991).
An attorney should not rely on the lack of notice as an excuse for missing a hearing date, if there are grounds for finding that attorney has abused the court's time. A court invoked MR Rule 3.1 in holding that attorneys have a legal and ethical duty to act with reasonable diligence in representing a client's interests, which includes keeping track of when hearings are supposed to occur. See Tiller v. Semonis, 635 N.E.2d 572, 574 (Ill. App. 4th Div. 1994). The court found the trial judge did not abuse his discretion in entering a default judgment based on missing the hearing, since the hearing was one of three hearings involving the lawsuit in which the offending attorneys failed to appear. See id. However, if there is no bad faith shown, and the attorney has shown diligence up until the missed hearing date, sanctions will probably not be issued. See Greenberger, Krauss & Tenenbaum v. Catalfo, 687 N.E.2d 153, 161 (Ill. App. 1st Dist. 1997) (attorney not sanctionable under Rule 137 for missing mandatory arbitration hearing and delays caused by continuance motions when no bad faith found and all motions for continuance were granted except the last one).
In Illinois, there is some authority to suggest that an attorney's duty under IRPC 3.1 goes beyond merely not bringing an action raised in bad faith or without grounding in law or fact; the attorney must also inform the court of any matters not raised by the opposing party that would affect the attorney's own position negatively. In People v. Leuze, an appellate court ruled that there was no ineffective assistance of counsel where the defense attorney informed the court about a matter that caused the defendant to be sentenced for a longer period than otherwise would have occurred. See People v. Leuze, 668 N.E.2d 232, 234 (Ill. App. 2d Dist. 1996). The court said that the attorney had a duty to inform the court about all matters, negative to the client or not, that would impact the final resolution of the case. See id. The decision was based upon a reading of IRPC Rule 3.1, 3.3, and 3.4, which the court found to collectively require an attorney to "not seek to secure from court an order or judgment without a full and frank disclosure of all matters and facts which the court ought to know." See id.
Attorneys practicing in the Seventh Circuit Court of Appeals should be aware of the potential for sanctions for violating the Standards of Professional Conduct Within the Seventh Federal Judicial Circuit. Although the Preamble of the standards indicates the standards are "voluntary," and the use for "litigation or "sanctions" is forbidden, the Seventh Circuit has nonetheless upheld sanctions imposed based, in part, on an attorney's violation of the standards. See In re Maurice, 69 F.3d 830, 832 (7th Cir. 1995).
The Seventh Circuit invoked the standards in admonishing an attorney in Grun v. Pneumo Abex Corp., 163 F.3d 411, 422 (7th Cir. 1998). Although sanctions were not involved in the case, the court in a footnote remarked that an attorney should not have remained silent when he knew that opposing counsel was unaware that a dismissal order was issued, and that neither party had received notice of the trial date. See id. The court indicated that the attorney had a duty to notify opposing counsel about the order and hearing, based upon a reading of the Rules of Professional Conduct for the Northern District of Illinois, and the Standards of Professional Conduct Within the Seventh Federal Judicial Circuit. See id. Even though there is no explicit obligation under those rules for an attorney to alert opposing counsel of a dismissal, the court stated that the "spirit of the rules required such a result." Id. Therefore, attorneys should treat both the Seventh Circuit Standards and District Rules of Professional Conduct as enforceable when conducting federal litigation in Seventh Circuit's jurisdiction.
3.2:100 Comparative Analysis of Illinois Rule
There was no precise parallel in the Illinois Code, although IRPC 6-101(a)(3) and 7-101(a)(1)(B) touched on the problem.
[The discussion of this topic has not yet been written.]
3.2:200 Dilatory Tactics
Rule 3.2 buttresses the duty of "reasonable diligence and prompt action" set forth in Rule 1.3, and violations of the latter necessarily violate the former. The Illinois Supreme Court has stated "[i]t is especially important that attorneys take all reasonable steps to ensure that client matters are handled expeditiously, inasmuch as '[d]ilatory practices bring the administration of justice into disrepute.'" In re Smith, 659 N.E.2d 896, 903 (Ill. 1995), quoting ABA Manual on Professional Conduct, Rule 3.2, Comment, at 01:147; see also Roadway Express v. Piper, 447 U.S. 752, 757 n.4 (1980) ("The glacial pace of much litigation breeds frustration with the federal courts and, ultimately, disrespect for the law."). For a full discussion of rules and cases involving attorney neglect, see section 1.3:100 et seq.
Although the Illinois Supreme Court has recognized that such delays can cause a client "considerable and needless anxiety" even where the client suffers no legal or financial loss, Smith, 659 N.E.2d at 903, a lack of legal or financial loss to the client has been considered a mitigating factor in disciplinary proceedings. See, e.g., In re Singer, 91 CH 198 (Hearing Board, Oct. 14, 1994) (finding respondent's action did not constitute delay because, inter alia, "there was no prejudice or damage to either the client of the legal profession based upon his handling of the matter"). Conversely, where a delay in violation of this rule causes a legal or financial loss to the client, greater discipline is warranted. Further, because the constitutional rights of a criminal defendant are "less susceptible to monetary valuation than the loss of a civil suit for damages, . . . more severe discipline is appropriate to deter neglect in criminal cases than in civil cases." In re Fox, 522 N.E.2d 1229, 1232-33 (Ill. 1988) (imposing 18-month suspension on attorney whose neglectful delay caused his clients to lose their constitutional right to appeal their criminal convictions).
3.2:300 Judicial Sanctions for Dilatory Tactics
While disciplinary action for violation for Rule 3.2 most often arises when a delay occurs as a result of neglect, the rule also prohibits affirmative efforts to delay litigation. Similarly, Illinois Supreme Court Rule 137 authorizes the permissive imposition of sanctions against an attorney who files a pleading, motion or other paper which is presented for an improper purpose, including unnecessary delay. The Rule 137 standard is objective, i.e., reasonableness under the circumstances as they existed at time of the filing. See, e.g., Fermarek v. John Hancock Mut. Life Ins. Co., 651 N.E.2d 601, 607 (Ill. App. 1st Dist. 1995).
Rule 137 differs from its predecessor, former section 2-611 of the Illinois Code of Civil Procedure, see Ill. Rev. Stat. 1989, ch. 110, par. 2-611, in that the imposition of sanctions is within the court's discretion under Rule 137, but was mandatory under section 2-611. Edward Yavitz Eye Center, Ltd. v. Allen, 608 N.E.2d 1235, 1239 (Ill. App. 2d Dist. 1993). Cases construing section 2-611, as well those interpreting Rule 137's federal counterpart, Rule 11 of the Federal Rules of Civil Procedure, are appropriate guidance for the application of Rule 137. Id. There is a considerable body of case law interpreting and applying these rules.
3.3:100 Comparative Analysis of Illinois Rule
The IRPC is entitled "Conduct Before A Tribunal" and is broader than the MR. IRPC 3.3(a)(1),(2),(3) and (4) are based upon MR 3.3(a), but modified in the introduction to (a) and in (a)(1); as to IRPC 3.3(a)(5) and (6), it is based on Illinois Code 7-102(a)(6) and (7); as to IRPC 3.3(a)(7), it is Illinois Code 7-102(a)(8), slightly reworded; as to IRPC 3.3(a)(8), it is Illinois Code 7-106(b)(2) slightly reworded; as to IRPC 3.3(a)(9), it is Illinois Code 7-106(c)(2) substantially reworded; as to IRPC 3.3(a)(10), it is MR 3.4(e) with modification; as to IRPC 3.3(a)(11), it is Illinois Code 7-101(a)(1)(A), modified; as to IRPC 3.3(a)(12), it is Illinois Code 7-106(d), substantially reworded; as to IRPC 3.3(a)(13), it is Illinois Code 7-109(a); as to IRPC 3.3(a)(14), it is Illinois Code 7-109(b); as to IRPC 3.3(a)(15), it is Illinois Code 7-109(c), modified; as to IRPC 3.3(b), it is MR 3.3(b) with modifications; as to IRPC 3.3(c) and (d), they are MR 3.3(c) and (d) exactly.
The IRPC is based on the Model Rules, and not on the Model Code.
3.3:200 False Statements to a Tribunal
There is no definition for "tribunal" in the IRPC or the ABA Rules. Cf. Skolnick v. Altheimer & Gray, 730 N.E.2d 4, 15 (2000) (not interpreting Rule 3.3, but interpreting "tribunal" to mean the ARDC under Rule 8.3(a)). However, it has been defined as "a trial type proceeding in which evidence is presented to a fact-finder by the parties, witnesses are examined, and a decision by a neutral decision-maker is reached on the basis of evidence and argument developed in the proceeding." ABA Formal Opinion 93-375 (Aug. 6, 1993), cited with approval in ISBA Advisory Opinion 99-04 (Oct., 1999).
Rule 3.3 also applies to pre-trial proceedings. Notice served by publication on the basis of an affidavit containing a false statement as to attempts to locate the person is a fraud upon the court, regardless of intent. ARDC Review Board decision In re Kelleher, 93 SH 102 (Dec. 1, 1995). Falsifying affidavits of service to cover up late filings is a fraud upon the court and is particularly egregious since it shows a total lack of respect for court procedures. ARDC Review Board decision In re Wilson, 95 CH 191 (Dec. 13, 1996) (attorney aggravated the misrepresentations to the court by denying receipt of a motion and denying employment of the person who signed for the receipt).
False representations made to the court during summary judgment proceedings regarding discovery amount to fraud on the tribunal. In re Ingersoll, 710 N.E.2d 390, 766-67 (Ill. 1999). A plan to abuse and obstruct discovery, however, does not violate the IRPC until the discovery requests have actually been served upon the plaintiff. ISBA Advisory Opinion 98-05 (Jan. 1995). The recommended course of action for violations during discovery is to file a motion under Supreme Court Rule 219 to have the court determine whether or not discovery is proper and request sanctions. Id. If the court does find an impropriety, the conduct can be reported to the ARDC, but a lawyer is not required to do so unless the abuse rises to the level of fraud, deceit, or misrepresentation, or is dishonest in some way. Id.
In determining whether the term "tribunal" includes pre-trial depositions, there may be a distinction between whether it is the attorney's own client or another party who commits perjury during a deposition. The court in Flynn suggested that perjury during pre-trial depositions does not constitute a fraud on a tribunal until the deposition is entered into evidence in court. Flynn v. Edmonds, 602 N.E.2d 880, 889 (Ill. App. Ct. 4th Dist. 1992). However, in Flynn, the perjury was committed by the opposing party's witness and the attorney exposed the perjury through impeachment during trial. Id. Other courts have held that the term "tribunal"" includes "the entire judicial process." Romano Brothers Beverage Co. v. D'Agostino-Yerow Assoc., Inc., 1996 U.S.Dist. LEXIS 10730, 57 (N.D. Ill. 1996). "False discovery responses taint the whole process, and may well result in either the loss or abandonment of meritorious claims." Id. at 47. In not taking any corrective measures with respect to a client's perjury during a deposition, counsel assisted their client in his aim to shield potentially available assets from opposing counsel, committing a fraud upon the court. Id. at 20 Disciplinary proceedings in Illinois are "clearly judicial in nature" given the elaborate procedure established by the Illinois Supreme Court for disciplining attorneys, including extensive hearings and supreme court review. Storment v. O'Malley, 938 F.2d 86, 89 (7th Cir. 1991). Although quasi-judicial in nature, a disability hearing before an Administrative Law Judge constitutes a hearing before a"tribunal." ISBA Advisory Opinion 99-04 (Oct., 1999); Restatement (Third) of the Law Governing Lawyers: Representing Client in Legislative and Administrative Matters § 164 (1997). On the other hand, a bank regulatory agency is not a tribunal, at least not in the context of a bank examination. ABA Formal Opinion 93-375 (the duty under Rule 3.3(b) is not triggered during a bank examination because it is not an "adjudicative proceeding.") Dishonesty on a prospective attorney's application to the bar constitutes a fraud upon a tribunal. Once the fraud is discovered, the attorney may face disciplinary sanctions including disbarment. The Supreme Court held that an attorney who concealed a prior conviction on the bar application merits discipline, and disbarment is the appropriate sanction where there is evidence of a pattern of a calculated effort to frustrate the examination and investigation of fitness to practice law. In re Mitan, 387 N.E.2d 278, 281-82 (Ill. 1979). See also ARDC Review Board decision, In re McBride, 95 SH 877. But an attorney who is disbarred on the basis of including false information on the bar application may later be reinstated upon evidence of rehabilitation. The Supreme Court held that although an attorney who disbarred herself in light of pending prosecution for drugs made errors on her path to reinstatement to the bar, they were not so significant that her petition should be denied when viewed in light of the positive aspects of her rehabilitation. In re Parker, 595 N.E.2d 549, 560 (Ill. 1992).
See also, ISBA Advisory Opinion 87-15 (1988), (wife's divorce attorney is not obligated to disclose to federal or state tax authorities such as the Internal Revenue Service that the wife's husband substantially understated the couple's income on their income tax returns because such authorities are not "tribunals"); ISBA 87-09 (Mar. 11, 1988) (an attorney may notify authorities where a client has stated that he intends to commit a crime by abducting his child in violation of a court order).
This Rule is not limited to conduct before a tribunal in Illinois - it includes fraud upon on any court or tribunal. In re Bell, 588 N.E.2d 1093 (Ill. 1992) (an attorney who filed an affidavit before the Tennessee Supreme Court in which he did not disclose that he was licensed to practice law in Illinois, perpetrated fraud on both courts).
It should be noted that, in addition to Rule 3.3, Rule 1.2(g) may also govern if an attorney finds out during the course of representation that her client has committed "a fraud upon a person or tribunal." Under the terminology section of the Illinois Rules, "person" is defined as "natural persons, partnerships, business corporations, public and quasi-public corporations, municipal corporations, State and Federal governmental bodies and agencies, or any other type of lawfully existing entity." Thus, although a particular body does not constitute a tribunal under Rule 3.3, the attorney's conduct may still be governed by Rule 1.2(g).
Rule 3.3 permits and may even require an attorney to reveal the existence of his client's concealed assets to the court. ISBA 95-14 Advisory Opinion (May 17, 1996). In this opinion, the client completed an assets and liabilities statement for the purpose of securing a public defender to represent him. Id. The client later revealed to the public defender that he had access to money in a trust fund. Id. The ISBA opined that the fraud, that is, the client's misrepresentation, was perpetrated on the court prior to the public defender's appointment and, therefore, this situation was distinguishable from confidences disclosed by the criminal defendant that relate to the underlying criminal case. Id. Under these circumstances, Rule 3.3 permits, and may require the attorney to disclose the fraud to the court if the attorney cannot convince his client to do so. Id. Furthermore, the ISBA opined that the attorney's continued participation in the case without rectifying the situation or disclosing the fraud assists the client in continuing the fraud by allowing the client to continue to receive free legal services when he is not entitled to receive such services. Id.
An attorney was found to have a duty under Rule 3.3 to convince his client to reveal the existence of assets concealed by him during his divorce or to provide sufficient information to the court about the fraud. ISBA Advisory Opinion 94-24 (May 17, 1995). In this opinion, the husband's divorce attorney gained privileged information that the client established an off-shore bank account of which his wife had no knowledge. Id. The account contained assets in excess of those assets the client wished to disclose to his wife and the client insisted that the attorney remain silent about the account. Id. The attorney refused to assist the client in concealing the assets and the client told him he would find an attorney who would help him. Id. The attorney did not withdraw from the divorce action and remained the attorney of record. Id. The attorney later learned that, with the assistance of another attorney, the client reached a settlement with his wife that was approved by the court. Id. The client did not reveal the existence of the off-shore account to his wife or her attorney and it was unclear whether his new attorney knew of the account. Id. The ISBA stated that even though the information about the off-shore account was privileged information gained by the attorney during the client's representation, the duties and responsibilities set forth in Rule 3.3 apply even if compliance with the Rule requires the attorney to disclose privileged information. Id. These duties are continuing and apply even after the conclusion of a proceeding before the court or the termination of a client's representation. Id. Under Rule 3.3, the attorney must first attempt to convince his client to reveal the fraud and if this attempt is unsuccessful, the attorney must disclose sufficient information to the court to rectify the fraud. Id. The ISBA then recognized that a tension exists between Rule 1.2(g) (precluding an attorney from revealing privileged information to an affected person or the tribunal when the attorney learns that such information is fraudulent) and Rule 3.3 and construed the rules so as to give meaning to both of them. The ISBA "interprets Rule 1.2(g) as a general rule applicable to conduct other than appearing before a tribunal and construes Rule 3.3 as a specific rule that expressly governs conduct when a lawyer is appearing before a tribunal . . . . the Committee believes that any ambiguity should be resolved to require disclosure where disclosure is necessary to rectify a fraud perpetrated upon a tribunal while the lawyer is appearing in a professional capacity before that tribunal." Id. In Romano Bros. Beverage Co. v. D'Agostino-Yerow Assoc., Inc., 1996 U.S. LEXIS 10730 (N.D. Ill. 1996) the court stated that the duty of candor before the court "trumps" or "supersedes" the duty of confidentiality when a client insists on perpetuating perjury. Id. at 47-49.
An attorney representing a creditor could not knowingly file consumer collection actions against debtors in a county where the attorney knows venue does not properly lie and no argument exists to support venue. ISBA Advisory Opinion 86-10 (Mar. 27, 1987). The attorney would violate the rule of professional conduct which prohibits an attorney from knowingly making a false statement of law or fact. Id. In addition, even if the attorney is not required to explicitly plead venue for an action, he would violate the rule of professional conduct that prohibits an attorney from violating an established rule of procedure or evidence. Id. See also Krull v. Celotex, 611 F. Supp. 146, 148-49 and n.6 (N.D. Ill. 1985) (noting the lawyer's duty, under the ABA Model Rule 3.3, to bring adverse controlling legal authority to the attention of the court).
See also ISBA Advisory Opinion 89-13 (Apr. 9, 1990) (defense attorney whose client has disappeared may reveal such information when requesting a continuance at a status call if required by court order or law to do so but may not give a false reason for the continuance); ISBA Advisory Opinion 697 (Aug. 11, 1981) (attorney may not file for child support payments in divorce proceeding where mother told attorney that her husband was not the child's father); Castillo v. St. Paul Fire & Marine Ins. Co., 828 F. Supp. 594 (C.D. Ill. 1992) (suspending attorney for one year for acting inappropriately at deposition, offering "less than forthright" explanations for uncivil behavior, and violating several court orders).
3.3:300 Disclosure to Avoid Assisting Client Crime or Fraud
Fraud, not falsity, forms the touchstone for determining the duty to disclose. The Rules define fraud narrowly. Conduct having the purpose to deceive amounts to fraud. IRPC Terminology. Negligent misrepresentation or "failure to apprise another of relevant information" does not amount to fraud. IRPC Terminology. Affirmative conduct, not mere omission, gives rise to fraud. Fraud, however, includes conduct "calculated to deceive, including the suppression of truth and the suggestion of what is false." In re Yamaguchi, 515 N.E.2d 1235, 1238 (Ill. 1987). An attorney must take corrective measures if his client commits perjury during a deposition, which is a fraud upon the court. Romano Brothers Beverage Co. v. D'Agostino-Yerow Assoc., Inc., 1996 U.S.Dist. LEXIS 10730 (N.D. Ill. 1996) If an attorney finds out that a client has committed a fraud upon the court, it is an attorney's failure to disclose the fraud that violates the rule. Yet, there is an obvious tension between the attorney's duty to disclose under this rule and protection of client confidentiality. Fraud upon the tribunal, even by non-clients, must be "promptly" revealed to the tribunal. By contrast, failing to reveal promptly perjurious testimony in pre-trial depositions was not violative of Rule 3.3, where the attorney later exposes the perjury at trial through impeachment during cross-examination. Flynn v. Edmonds, 602 N.E.2d 880, 890 (Ill. App. Ct. 4th Dist. 1992). Thus, if a non-client witness testifies falsely, the attorney must take remedial measures. But if the witness intends to deceive, disclosure is required. Disclosing privileged communications to reveal fraud, by contrast, requires materiality to trump the privilege. IRPC 3.3(a)(4). Of course, if not privileged, no materiality is required. IRPC 1.2(g). Any non-privileged information must be disclosed to reveal a client fraud regardless of materiality.
Under the "crime-fraud exception," conversations in which an attorney recommends to his client that the client commit perjury are not entitled to protection by the attorney-client privilege. In re Marriage of Granger, 554 N.E.2d 586, 594 (Ill. App. Ct. 5th Dist. 1990). The term "crime-fraud exception" can be misleading because where the discussion between attorney and client is in the context of furthering a crime or fraud, the privilege does not even attach in the first place. Id. at 593-94.
A court-appointed public defender who learned during the representation that the client has concealed his access to a trust fund to secure free legal services could reveal that information to the court under Rule 3.3. ISBA Advisory Opinion 95-14 (May 17, 1996). The ISBA stated that failure to disclose the client's fraud in securing the free legal services assists the client in continuing the fraud upon the court. Id. The ISBA further stated that if the client's concealed asset would preclude the appointment of the public defender then it is a material fact known to the lawyer and disclosure may be necessary under Rule 3.3 if the lawyer is to avoid assisting the client's fraudulent act by the lawyer's silence. Id.
3.3:310 Prohibition on Counseling or Assisting Fraud on a Tribunal [see also 1.6:350]
An attorney may not knowingly use perjured testimony or counsel or assist his clients in illegal or fraudulent conduct. Where an attorney suspected that his clients gave the natural mother of their adopted child money during her pregnancy in violation of state law, contrary to the attorney's prior warning that such was illegal, and if the attorney believes that the clients intend to conceal the making of such payment or perjure themselves in the upcoming hearing, the Illinois State Bar Association opined that the attorney was permitted but not required to withdraw from the representation. ISBA Advisory Opinion 90-09 (Jan. 29, 1991).
An attorney who represented an SSI claimant at a hearing before an administrative law judge and discovered that the client did not disclose all of his assets on the initial application for benefits is required to disclose the fraud under Rule 3.3. ISBA Advisory Opinion 99-04 (Oct. 1999). The ISBA ruled that although quasi-judicial, the disability hearing before an administrative law judge is a proceeding before a tribunal. Id. Thus, Rule 3.3 governs and requires disclosure because the duty to disclose is a continuing duty. Id. "Rule 3.3 is the more specific and clear statement of duty compelling disclosure of the privileged communication pertaining to the fraud despite the fact that Rule 1.2(g), the more general rule, does not require such disclosure. If a lawyer violates such a specific rule and clear statement of duty, it is of minor moment and solace that he or she happens to comply with a different one." Id. In addition, the ISBA stated that the duty to disclose the fraud is not necessarily removed if the lawyer withdraws from the representation. Id.
In People v. Simac, 641 N.E.2d 416 (Ill. 1994), the Court affirmed a direct criminal contempt finding against a defense attorney for substituting a law clerk for the defendant. This was a case involving a traffic accident where, Simac, a defense attorney, directed a law clerk, who had similar physical characteristics and was dressed similar to the defendant, to sit at the defense table in the position normally reserved for the defendant and the defendant sat elsewhere in the courtroom. Id. at 418. During direct examination by the state's attorney, the police officer who responded to the accident identified the law clerk as the defendant. Id. When the court noted for the record that the officer had identified the defendant, the defense attorney did not correct the misidentification or reveal that the defendant was seated elsewhere in the courtroom. Id. Based on the totality of the circumstances, the trial court found the defense attorney guilty of direct criminal contempt for misrepresentation by inference, and this decision was affirmed by the appellate court and the Illinois Supreme Court. Id. at 419.
"Criminal contempt is described as conduct that is calculated to embarrass, hinder or obstruct the court in its administration of justice or to derogate from the court's authority or dignity or bring the administration of law into disrepute. . . . Direct criminal contempt is contemptuous conduct occurring 'in the very presence of the judge, making all of the elements of the offense matters within his own personal knowledge' . . . . Direct contempt is 'strictly restricted to acts and facts seen and known by the court, and no matter resting upon opinions conclusions, presumptions or inferences should be considered.'" Id. at 420 (citations omitted). The Court stated that the appellant intended to deceive the court when he was aware that there was a misidentification and he failed to correct the court and the record upon the court's erroneous statement for the record that the witness had identified the defendant. Id. at 422. "At this point, as an officer of the court, appellant has a responsibility to the court and to the integrity of the proceedings to correct the court and the record." Id. Although this case was one of criminal contempt, the Court stated that an attorney's participation in the presentation or participation of false evidence is unprofessional and could subject him to discipline. Id. at 423.
3.3:400 Disclosing Adverse Legal Authority
In Krull v. Celotex Corp., an asbestos company failed to inform the court of legal authority, including a statute, contrary to the company's position regarding a provision in its merger contract. Krull v. Celotex Corp., 611 F. Supp. 146, 148 (N.D. Ill. 1985). The district court stated that "that omission raises concerns about Celotex's compliance with its duty of candor to the court," a duty which has been built directly into Rule 3.3(a)(3). Id. at 149 n.6. For those reasons, the court denied Celotex's motion for partial summary judgment on the issue of its liability for punitive damages. Id.
An attorney failed to comply with Rule 3.3(a)(3) by not bringing to the court's attention the fact that the cases relied upon were predicated on a repealed version of the Code of Professional Responsibility. In re Moran, 231 Bankr. 290 (Bankr. N.D. Ill. 1998).
3.3:500 Offering False Evidence
In People v. Simac, a defense attorney who substituted a person for the defendant without the court's permission was found guilty of criminal contempt and the Court indicated that he could also be subject to discipline for presenting false evidence. People v. Simac, 641 N.E.2d 416, 423-24 (Ill. 1994) (discussing cases from other jurisdictions which found violations of the State code of professional responsibility for similar conduct). In In Re Marriage of Granger, 554 N.E.2d 594 (Ill. App. Ct. 5th Dist. 1990) the appellate court stated that an attorney who urged his client to perjure herself in order to preserve a chance to be granted custody of the parties' child blatantly violated the Illinois Code equivalent provisions of Rules 3.3(a)(5) and (6). In In re Heilgeist, 469 N.E.2d 1109 (Ill. 1984), the Court held that a lawyer who advised his clients to make checks for home repairs payable to a construction company that was no longer actually performing work on their home and where he knew the money was being distributed to persons other than those associated with that company, participated in the creation of false evidence, and that warranted a three month suspension. Id. at 1113-14.
Where a law firm represents a guardian of a disabled person's estate and prepares annual accountings to the court based on information provided by the guardian which is later discovered to contain evidence that the guardian is misappropriating funds, the accountings constitute "false evidence" within the meaning of Rule 3.3(a)(4). ISBA Advisory Opinion 98-07 (Mar., 1999). An attorney for a disabled person's guardian who also has the disabled person's estate as a client may be subject to discipline and civil liability if he does not disclose to the probate court that the guardian is taking estate property. ISBA Advisory Opinion 91-24 (Apr. 3, 1992) A prosecutor violates the Code of Professional Responsibility when he offers false testimony notwithstanding that it is for the purpose of developing evidence for a subsequent prosecution to bring corrupt attorneys to justice for bribery. In re Friedman, 392 N.E.2d 1333, 1334-35 (Ill. 1979). In re Friedman was a bribery case where the Court held that the prosecutor violated the Illinois Code equivalents of Rules 3.3(a)(4) (knowingly using perjured testimony or false testimony), 3.3(a)(5) (participation in the creation or preservation of false evidence), and 3.3(a)(14) (advising or causing a witness to be unavailable before the tribunal). Id. at 1335. An attorney was suspended for two years for being involved in a scheme to bribe a police officer. In re Ettinger, 538 N.E.2d 1152 (Ill. 1989). The Court stated that the fact that he withdrew from the bribery scheme, although possibly the basis for his acquittal in federal court, was not a bar to subsequent disciplinary proceedings for the same conduct and did not erase the professional violations including charges of violations of the Illinois Code equivalents of Rule 3.3(a)(1) (knowingly making a false statement of law or fact), 3.3(a)(5) (participating in the creation or preservation of evidence when he knows or when it is obvious that the evidence is false) and 3.3(a)(6) (counseling or assisting his client in conduct that the lawyer knows to be illegal or fraudulent). Id. at 1160-61.
Most violations of Illinois Rule 3.3(a)(4) occur in criminal court proceedings. There are, however, a few examples citing disciplinary action against a lawyer who violated Rule 3.3(a)(1) in a civil proceeding. Illinois Rule 3.3(a)(4) provides that a lawyer appearing in a professional capacity before a tribunal shall not offer evidence that a lawyer knows to be false. For example, in In re Chase Ingersoll, an attorney was charged with introducing false evidence before the court in a civil proceeding. The attorney represented Paul Flexner, a Professor at Bradley University in a slander suit against the school. In re Chase Ingersoll, 710 N.E.2d 390 (Ill.1999). The charges concerned the attorney's role in the preparation and filing of a pauper's affidavit filed by the client in circuit court. Id. at 166. The form, entitled "Application to Sue or Defend as a Poor Person," sought information on the applicant's financial standing. Id. Although it did not state so affirmatively, the affidavit suggested that the client owned no interest in real estate. Id. The client, however, owned a home in Morton, where he lived with his wife and three sons. Id. The attorney at the hearing before the administrator gave inconsistent testimony. Id. The client testified that he and the attorney prepared the form together and that he fully discussed the question regarding real estate with the attorney at that time. In fact, the client testified that he told the attorney that he had about $30,000 to $35,000 in equity in his home, and that he owed about $88,000 on it. Id. at 167. The Hearing Board found that the attorney offered evidence that he knew to be false and failed to take reasonable remedial measures to correct it, in violation of Rule 3.3(a)(4). Id. at 168. The Review Board affirmed the Hearing Board's findings. Id.
Another case discussed the effect of Rule 3.3(a)(4) on the attorney client privilege. In In re Marriage of Granger, 554 N.E.2d 586 (Ill. App. 5th Dist. 1990), the appellate court affirmed the trial court's grant of a new trial. In a divorce and custody proceeding, a man who was Mrs. Granger's lover testified about their affair. Prior to cross-examining this witness, Mrs. Granger and her attorney discussed the testimony in the courtroom while the audiotape machine was running. The attorney advised Mrs. Granger that if the witness' testimony was correct, she could lose custody of her child and he encouraged Mrs. Granger to deny the testimony on the stand, which she did. In reviewing the audiotapes for a possible appeal, Mr. Granger's attorney heard the exchange between Mrs. Granger and her attorney in the courtroom. On the basis of this evidence, the trial court granted Mr. Granger a new trial. Mrs. Granger argued that the conversation was protected by attorney-client privilege and, therefore, could not be used by the trial court as the basis for a new trial. The appellate court disagreed, noting that attorney-client privilege has serious limitations.
"The privilege does not attach where the communications between a client and her lawyer are in furtherance of a crime or fraud. Accordingly, the privilege cannot be invoked to bar disclosure of communications in which a client seeks legal assistance to obtain illegal ends. Correspondingly, the privilege cannot be invoked to exclude evidence of an attorney's advice to his client where that advice is given in furtherance of illegal or fraudulent conduct." Granger, 554 N.E.2d at 593-94.
The Restatement provides illustrations of a lawyer in a civil proceeding regarding contract's cases. See Restatement (Third) of the Law Governing Lawyers, § 120 (2000). The Restatement says that:
(1) A lawyer may not:
a) knowingly counsel or assist a witness to testify falsely or otherwise to offer false evidence; (b) knowingly make a false statement of fact to the tribunal; (c) offer testimony or other evidence as to an issue of fact known by the lawyer to be false.
(2) If a lawyer has offered testimony or other evidence as to a material issue of fact and comes to know of its falsity, the lawyer must take reasonable remedial measures and may disclose confidential client information when necessary to take such a measure. (3) A lawyer may refuse to offer testimony or other evidence that the lawyer reasonably believes is false, even if the lawyer does not know it to be false.
The Restatement provides an illustration of what knowledge the lawyer must have.
§ 120(c). A lawyer's knowledge. A lawyer's obligations under Subsection (2) depend on what the lawyer knows and, in the case of Subsection (3), on what the lawyer reasonably believes (see Comment j). A lawyer's knowledge may be inferred from the circumstances. Actual knowledge does not include unknown information, even if a reasonable lawyer would have discovered it through inquiry. However, a lawyer may not ignore what is plainly apparent, for example, by refusing to read a document (see § 94, Comment g). A lawyer should not conclude that testimony is or will be false unless there is a firm factual basis for doing so. Such a basis exists when facts known to the lawyer or the client's own statements indicate to the lawyer that the testimony or other evidence is false.
An interesting illustration is provided by the ISBA concerning submitting annual accountings to the court. A lawyer representing a guardian who filed annual accountings, now known to have been false, with the circuit court, has a duty to take appropriate remedial action to avoid assisting the guardian in concealing from the court the misappropriation of estate assets, even if the disclosure of otherwise protected client confidential information may be required. IRPC 1.2, 1.6, 1.16, 3.3 and 4.1. See ISBA Opinion 98-07 (March, 1999).
Lawyers should note ISBA Opinion 95-14 (May 17, 1996). The Subject of the Opinion concerned a disclosure by an attorney to the court of information conflicting with client's indigency affidavit. The Opinion cited Rule 3.3 that specifies a lawyers' duties regarding conduct before a tribunal and held that those duties are continuing and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
In In re Friedman, the chief of the criminal division of the Cook County State's Attorney's Office, directed police officers to provide false testimony in criminal cases so that the State's Attorney could gather evidence against the criminal defendant's attorney for bribery. In re Friedman, 392 N.E.2d 1333, 1334 (Ill. 1979) Friedman admitted that, absent his good intent of prosecuting corrupt attorneys, his conduct violated the IRPC. Id. at 1335. The Supreme Court held that Friedman's motives did not excuse the fact that he violated the IRPC. Id. at 1336. However, the Court declined to impose any sanctions, finding that Friedman acted without the guidance of precedent or settled opinion, there was considerable belief that he acted properly in conducting the investigation, and he otherwise had served the public diligently and with integrity and acted in the present matter not out of self-interest, but from a sincere, if misguided, desire to bring corrupt attorneys to justice. Id.
The Court held that suspension for a period of two years from the practice of law was warranted where an attorney was involved in a scheme to bribe a police officer even though attorney was acquitted of the federal criminal charges. In re Ettinger, 538 N.E.2d 1152, 1162 (Ill. 1989)
Rule 3.3(a)(15) restates long-standing law in Illinois, where the courts have long invalidated the use of contingent fee contracts for witness finders as violative of public policy. First Nat'l Bank of Springfield v. Malpractice Research , Inc., 688 N.E.2d 1179 (Ill. 1997). In Gillet v. Board of Supervisors, 67 Ill. 256, 261 (Ill. 1873), the Court strongly condemned the use of contingent fee contracts for witness finders, stating that "the contracts themselves are pernicious in their nature. They created a powerful pecuniary inducement on the part of the agents so employed, that testimony should be given of certain facts, and that a particular result of the suit should be had." Later, in Goodrich v. Tenney, 33 N.E. 44 (Ill. 1893), the Court invalidated a creditor's agreement to pay a share of the amount recovered on creditor's bill against an absent debtor and purchaser of his property for procuring affidavits and testimony of the debtor and two other witnesses that no consideration was paid. The Court stated that on account of their corrupting tendency, such contracts must be held void as inconsistent with public policy. They create a powerful inducement to make use of improper means to procure the testimony contracted for to secure the desired result, they lead to subornation of witnesses, and pervert the course of justice. Id at 46.
In First Nat'l Bank of Springfield, supra, the Illinois Supreme Court overruled the appellate court, holding that contingent fee contracts for witness finders are void as a matter of public policy because of the tendency to suborn perjury. The fee agreement provided that Malpractice Research would attempt to locate expert witnesses in contrast to fact witnesses willing to testify about the plaintiffs' medical condition in exchange for a percentage of any recovery or settlement. Id. at 1180. The Court stated that the same evils identified by the court many years ago in Gillet and Goodrich operate here, and it is the tendency of such contracts to pervert justice by giving an incentive to locate a person who will maximize the finder's own recovery and not simply serve as a reliable witness. Id. at 1184. The Court stated that, unlike attorneys who may be paid on a contingent fee basis, witness finders operate outside the supervision of the courts and are not restricted by any ethical or statutory limitations on the amounts of their fees. Id. The Court found that "the contract at issue here falls squarely within the prohibition previously recognized by this court in Gillet and Goodrich and thus violates public policy." Id.
The Court in First Nat'l Bank of Springfield, 688 N.E.2d at 1184-85, also cited with approval an ethics opinion, ISBA 86-3 (July 7, 1986). The Illinois State Bar Association stated that it is professionally improper for an attorney to hire, or to recommend or acquiesce in his client hiring, an agency to provide an expert where the agency's compensation is contingent upon the outcome of the matter. ISBA 86-3 (July 7, 1986). Paying a third-party agency, hired to find expert witnesses, a fee contingent on the outcome of a case violates the meaning and intent of Rule 3.3(a)(15). It violates the Rule regardless of whether the attorney or the client does the hiring or whether the witness is paid a fixed fee. Id.
Rule 3.3(a)(15) permits reimbursement to a subpoenaed witness for sums lost by reason of being required to appear at trial and its provisions regarding payment for a witness' time are not limited on its face to attendance at trial or for depositions. ISBA Advisory Opinion 87-05 (Jan. 29, 1998). Thus, reasonable compensation for a witness' time being interviewed is permitted, though not mandated, and is not limited to time lost from a job or profession. Id.
Witnesses attending depositions, trials and grand jury proceedings are entitled to statutory compensation of $20 for each day's attendance and $0.20 per mile each way for necessary travel. 705 ILCS 35/4.3 (2000). A witness may be reimbursed for sums lost by reason of being required to appear at trial and may be paid reasonable compensation for time spent in being interviewed. ISBA 87-05 (Jan. 29, 1988). Notwithstanding the foregoing rule, an attorney must be careful that payments to witnesses are not for the "purpose of influencing testimony, rendering a prospective witness 'sympathetic' to one's cause, or suborning perjury." Id.
3.3:600 Remedial Measures Necessary to Correct False Evidence
• Primary Illinois References:
IL Rule 3.3
• Background References: ABA Model Rule 3.3(a)(4), Other Jurisdictions
• Commentary: ABA/BNA § 61:401 et seq., ALI-LGL § 117A-B, Wolfram §§ 12.5, 12.6, 13.3.6
A lawyer who discovers that a client has presented false evidence must take reasonable corrective steps, including informing the court of the deception if all else fails, and in litigation, the burden is on the attorney who discovers client dishonesty to take corrective action. Romano Brothers Beverage Co. v. D Agostino-Yerow Assoc., Inc., 1996 U.S.Dist. LEXIS 10730, 47 (N.D. Ill. 1996). Disclosure of a client's perjury is required by Rule 3.3 where a lawyer has offered material evidence to a tribunal and comes to know of its falsity, or when disclosure of a material fact is necessary to avoid assisting a criminal or fraudulent act by the client, and the lawyer's duty to disclose client perjury to a judicial tribunal supersedes a lawyer's Rule 1.6 responsibility to keep client confidences. Id. at 49.
Offering material evidence later discovered to be false does not automatically require disclosure. If an attorney finds out that material evidence offered to the court was false, the lawyer must take reasonable remedial measures. First, the attorney must ascertain whether it is, in fact, false evidence. Second, the false evidence must be material. Presumably, therefore, disclosure is not considered the only remedy or preventive measure if the conduct can be avoided by other means. A "lawyer shall take reasonable remedial measures" if the attorney later finds out that the material evidence he offered was false. IRPC 3.3(a)(4). See also Restatement (Third) of the Law Governing Lawyers:: False Testimony or Evidence § 180 (1997). Reasonable means measures a "prudent and competent lawyer" would take to remedy the offering of false evidence. See IRPC Terminology. Contrast this gentle injunction of "reasonable remedial measures" with the stern requirements that the lawyer "reveal" fraud and "disclose" material evidence where necessary to avoid assisting in a crime or fraud. Compare IRPC 1.2(g) and 3.3(a)(2) with 3.3(a)(4). While discovering mere falsity triggers no duty to disclose, discovering fraud does.
Disclosure of a client's perjury is required by Rule 3.3 where a lawyer has offered material evidence to a tribunal and comes to know of its falsity, or when disclosure of a material fact is necessary to avoid assisting a criminal or fraudulent act by the client, and the lawyer's duty to disclose client perjury to a judicial tribunal supersedes a lawyer's Rule 1.6 responsibility to keep client confidences. Romano Brothers Beverage Co. v. D Agostino-Yerow Assoc., Inc., 1996 U.S.Dist. LEXIS 10730, 49 (N.D. Ill. 1996). If an attorney knows that an opposing party's witness committed perjury during a pre-trial deposition, that attorney does not violate Rule 3.3(a)(5) if he later exposes the perjury at trial through impeachment during cross-examination. Flynn v. Edmonds, 602 N.E.2d 880, 890 (Ill. App. Ct. 4th Dist. 1992).
Under the "crime-fraud exception," conversations in which an attorney recommends to his client that the client commit perjury are not entitled to protection by the attorney-client privilege. In re Marriage of Granger, 554 N.E.2d 586 (Ill. App. Ct. 5th Dist. 1990). The court found that an attorney who urged his client to perjure herself in order to preserve a chance to be granted custody of the parties' child flagrantly violated Rules 3.3(a)(5) and (6). Id. at 594. The court stated that the term "crime-fraud exception" can be misleading because where the discussion between attorney and client is in the context of furthering a crime or fraud, the privilege does not even attach in the first place. Id. at 593-94.
When a client claims to be unfit to stand trial, the attorney's obligation under Rules 3.3(a)(5) and (6) is make sure the issue is fairly determined. People v. Lewis, 393 N.E.2d 1380, 1384 (Ill. App. Ct. 5th Dist. 1990). In Lewis, the client claimed he was denied effective assistance of counsel because defense counsel told the court that, in his opinion, the defendant was fit for trial and able to assist in his own defense. Id. The appellate court stated that where a defense attorney knows that his client is capable of communicating intelligently, and the client, in an apparent attempt to deceive the trier of fact, presents confused or self-contradictory testimony, it is the ethical responsibility of defense counsel to disclose to the court the facts as he knows them. Id.
Merely creating the appearance of hiding or misrepresenting evidence may violate Rules 3.3(a)(5) and (6). In In re Heilgeist, 469 N.E.2d 1109 (Ill. 1984), the Court agreed with the ARDC that the respondent attorney technically created false evidence, but reduced the suspension from eighteen to three months because it was mainly "poor judgment:" the administrator did not ask for restitution; there was no allegation of an overcharge; the clients were not damaged in any way; the attorney had nothing to gain, and he had an unblemished record for twenty-eight years. Id. at 1114. Further, the judicial process does not have to be thwarted in order for a violation to occur. In re Stern, 529 N.E.2d 562, 565 (Ill. 1988). There, the Illinois Supreme Court ruled that an attorney husband involved in backdating a document in connection with his divorce violated the disciplinary rules forbidding conduct involving dishonesty, fraud, deceit or misrepresentation. He knowingly made false statements of law or fact and exhibited conduct which tended to defeat the administration of justice or bring the legal profession into disrepute, but he did not violate the rule that requires attorneys to promptly reveal a fraud upon a tribunal because a witness who testified about the backdated document changed his false testimony before Stern could correct it. Id. at 564. The Court held that censure was the appropriate sanction for the attorney's conduct in backdating a letter that was later entered into evidence by opposing counsel and used to his disadvantage; the Court held that, although his conduct was tainted by deceit, it was not intended to be used to perpetrate a fraud on the court, he stopped short of using to his advantage, and he had never before been subject to disciplinary action. Id. at 565.
An attorney who was convicted of bank fraud in Tennessee and who seeking to inform the Illinois Supreme Court of his conviction perpetrated a fraud on the court which warranted his disbarment. In re Bell, 588 N.E.2d 1093 (Ill. 1992). See also In re Yamaguchi, 515 N.E.2d 1235 (Ill. 1987); In re Mitan, 387 N.E.2d 278 (Ill. 1979).
In Flynn v. Edmonds, 602 N.E.2d 880 (Ill. App. Ct. 4th Dist. 1992), the court held that defense counsel was not required to notify the court that the plaintiff's expert medical witness lied in a deposition about his credentials. "[A]n attorney [is not required] to disclose the possibility that a witness may lie on the stand. Counsel could not know for certain that the witness would continue to lie after being put under oath in an Illinois courtroom. Nor could they know that under a stringent cross-examination focused on his board-certification credentials, the witness would continue to stick by his testimony. However, as any trial lawyer should readily admit, defense counsel had to be hoping for exactly this result." Id. at 889.
An attorney who represented a disabled person's estate and who believed that a guardian improperly took assets of the estate must reveal such information to the probate court. ISBA Advisory Opinion 91-24 (Apr. 3, 1992). In this case, the attorney's clients were the disabled person while he was alive and, after death, the disabled person's estate. The guardian was not the attorney's client, and therefore, the attorney did not have to worry about revealing privileged information provided by the guardian. Id. If he fails to reveal information about the property to the court, the attorney risks a later determination that his and the guardian's actions were fraudulent. Id.
An attorney had a duty to convince his client to reveal the existence of assets concealed by him during his divorce or to provide sufficient information to the court about the fraud. ISBA Advisory Opinion 94-24 (May 17, 1995). The husband's divorce attorney gained privileged information that the client established an off-shore bank account of which his wife had no knowledge, and although he refused to assist the client in concealing the assets, he did not withdraw from the divorce action and remained the attorney of record. Id. The attorney later learned that, with the assistance of another attorney, the client reached a settlement with his wife that was approved by the court, and that the client did not reveal the existence of the off-shore account to his wife or her attorney and it was unclear whether his new attorney knew of the account. Id. The ISBA concluded that even though the information about the off-shore account was privileged information gained by the attorney during the client's representation, the duties and responsibilities set forth in Rule 3.3 apply even if compliance with the rule requires the attorney to disclose privileged information. Id. These duties are continuing and apply even after the conclusion of a proceeding before the court or the termination of a client's representation. Id. Under Rule 3.3, the attorney must first attempt to convince his client to reveal the fraud and if this attempt is unsuccessful, the attorney must disclose sufficient information to the court to rectify the fraud. Id. The ISBA, recognizing the tension that exists between Rule 1.2(g) and Rule 3.3, construed the rules so as to give meaning to both of them. Id. The ISBA interpreted Rule 1.2(g) as a general rule applicable to conduct other than appearing before a tribunal and construed Rule 3.3 as a specific rule that expressly governs conduct when a lawyer is appearing before a tribunal. Id. The Committee opined that any ambiguity should be resolved to require disclosure where disclosure is necessary to rectify a fraud perpetrated upon a tribunal while the lawyer is appearing in a professional capacity before that tribunal. Id.
The duty to reveal client fraud can extend back to fraud committed prior to the representation but discovered by the attorney during the representation. An attorney who represented an SSI claimant at a hearing before an administrative law judge and discovered that the client did not disclose all of his assets on the initial application for benefits is required to disclose the fraud under Rule 3.3. ISBA 99-04 (Oct. 1999). The ISBA stated that although quasi-judicial, the disability hearing before an administrative law judge is a proceeding before a tribunal. Id. Thus, Rule 3.3 governs and requires disclosure because the duty to disclose is a continuing duty. Id. "Rule 3.3 is the more specific and clear statement of duty compelling disclosure of the privileged communication pertaining to the fraud despite the fact that Rule 1.2(g), the more general rule, does not require such disclosure. If a lawyer violates such a specific rule and clear statement of duty, it is of minor moment and solace that he or she happens to comply with a different one." Id. In addition, the ISBA stated that the duty to disclose the fraud is not necessarily avoided if the lawyer withdraws from the representation. Id.
Rule 3.3 permits and may even require an attorney to reveal the existence of his client's concealed assets to the court. ISBA Advisory Opinion 95-14 (May 17, 1996). The client completed an assets and liabilities statement for the purpose of securing a public defender to represent him, and later revealed to the public defender that he had access to money in a trust fund. Id. The ISBA ruled that the fraud, that is, the client's misrepresentation, was perpetrated on the court prior to the public defender's appointment and, therefore, this situation was distinguishable from confidences disclosed by the criminal defendant that relate to the underlying criminal case. Id. Under those circumstances, Rule 3.3 permits, and may require the attorney to disclose the fraud to the court if the attorney cannot convince his client to do so. Id. Furthermore, the ISBA ruled that the attorney's continued participation in the case without rectifying the situation or disclosing the fraud assists the client in continuing the fraud by allowing the client to continue to receive free legal services when he is not entitled to receive such services. Id. See also ISBA Advisory Opinion 93-16 (May 1994) (attorney who gained privileged information that his client may have violated tax laws in the past could not disclose such information under Rule 1.6, but must avoid making false representations about such matters in connection with a judicial or administrative proceeding since such representations would violate several rules, including Rule 3.3); ISBA Advisory Opinion 90-09 (Jan. 1991), (attorney was not required to investigate his client or disclose suspicions to the court after he represented adoptive parents in an adoption and later suspected that the parents had provided false information to him about their marriage and the adopted child's paternity); ISBA Advisory Opinion 84-02 (it was improper for an attorney to attempt to influence the court by revealing inadmissible privileged information about his client's innocence where the client asserted his Fifth Amendment right against self-incrimination and, therefore, there was no danger that the client would have perpetrated a fraud on the court).
The ABA Model Rule 3.3(b) states that the duties under (a) "continue until the conclusion of the proceeding." The fact that the Illinois version states that the duties under (a) "are continuing duties" indicates that an attorney may still have a duty to disclose a client's fraud or take other remedial measures after a trial or other proceeding before a tribunal has concluded. Under the ABA version of Rule 3.3, the duty to disclose continues until the end of the proceeding despite confidential information under Rule 1.6, so an attorney who has withdrawn and been replaced by another attorney still has a duty to disclose. ABA Formal Opinion 98-412 (Sept. 9, 1998).
Where an attorney representing an SSI claimant discovered that the claimant did not disclose all of his assets on the initial application for benefits, withdrawal may not be a sufficient remedy. ISBA Advisory Opinion 99-04 (Oct. 1999). "[M]ere withdrawal does not obviate or supplant the duty of disclosure. Whether disclosure is required by the IRPC is an issue that is distinct and independent of the issue of withdrawal, either mandatory or permissive." Id. See also Rule 1.16, Declining or Terminating Representation, governing the mandatory and permissive rules. To withdraw without disclosing fraud to the tribunal could violate Rule 8.4(a)(1), (4) (conduct involving dishonesty, fraud, deceit or misrepresentation), and (5) (conduct prejudicial to the administration of justice), in addition to violating Rule 3.3(a)(2), (5), and (6). ISBA 99-04. To avoid prejudicing the administration of justice, disclosure should be "within a reasonable time of discovery of the fraud" and may even require disclosure after withdrawal "sufficient to avoid continued reliance by the court on prior representations." Id. The duties of loyalty and confidentiality do mandate that the first step should be to try to persuade the client to remedy the situation. Id. If the client is the plaintiff, another option would be for the client to dismiss the case. Id. The attorney should be completely forthright that if the client does not either dismiss or rectify, the ethics rules require the attorney to disclose the fraud. Id. The attorney does not have to disclose if merely withdrawing rectifies the fraud. Id. However, because the duty to disclose is continuous, pursuant to Rule 3.3(b), the duty continues beyond withdrawal. Id.
For an example of when withdrawal was appropriate and disclosure was not required, see ISBA Advisory Opinion 90-12 (Jan. 1991). The ISBA opined that where there were inconsistencies in a client's story and the client was urged to make a full disclosure, the firm's withdrawal was appropriate given the client's damaged credibility. Id. For an example of permissive withdrawal, see ISBA Advisory Opinion 90-09 (Jan. 1991). An attorney representing prospective parents in a private adoption may, but is not required to, withdraw if the attorney believes that his clients intend to conceal the making of an illegal payment to the natural mother, or perjure themselves in the upcoming hearing regarding such payment. Id. The attorney is not required to disclose the anticipated fraud. Id.
3.3:700 Discretion to Withhold Evidence Believed to Be False
There appear to be no Illinois Federal or State judicial decisions or Illinois State Bar Association opinion interpreting Rule 3.3(c).
However, the Illinois Supreme Court upheld the decision of defense counsel not to call witnesses he suspected would present perjurious evidence. People v. Flores, 538 N.E.2d 481 (Ill. 1989) (holding that the defense counsel's good-faith determination that the testimony of the defendant's family members would be untruthful justified his decision not to call them as witnesses and thus there was no denial of effective assistance of counsel).
3.3:800 Duty of Disclosure in Ex Parte Proceedings
There appear to be no Illinois Federal or State judicial decisions or Illinois State Bar Association opinion on the subject.
However, there are a number of cases from other jurisdictions which invoke the provision. See e.g., Time Warner Entertainment Co. v. Does, 876 F. Supp. 407 (E.D. N.Y. 1994) (finding that plaintiffs' attorneys failed to disclose adverse authority to the court in their ex parte application for a temporary injunction in violation of Rule 3.3(d)); Eagan v. Jackson, 855 F. Supp. 765 (E.D. Pa. 1994) (holding that an attorney, who remained silent about the plaintiff guardian's financial interest in obtaining a referral fee from the attorney when he submitted a motion for approval of a settlement agreement, led the court to believe, if only tacitly, that it was being assisted in its decision making by a disinterested guardian when the attorney knew that was not true; the court found that this conduct violated MR 3.3(d), and could result in professional discipline if the appropriate disciplinary body so decided); Committee on Professional Ethics & Conduct v. Postma, 430 N.W.2d 387 (Iowa 1988) (disciplining an attorney for presenting an ex parte application for an order transferring funds without disclosing an ongoing controversy over entitlement).
In Grun v. Pneumo Abex Corp., 163 F.3d 411 (7th Cir. 1998), defense counsel received an order of dismissal for plaintiff's failure to appear for trial in circumstances where the court had inadvertently failed to notify either party of the trial date. Defense counsel then received a change of address notification from plaintiff's counsel. Id. at 422. Furthermore, defense counsel sent employees to the court to inquire about a new trial date, but they never notified plaintiff that the case had been dismissed. Id. The court remonstrated this conduct as violative of the Rules, specifically citing Rule 8.4, and stated "[r]egardless of whether an explicit rule required Pneumo Abex's counsel to alert Grun's attorney of the dismissal, the spirit of the rules required such a result." Id.
3.4:100 Comparative Analysis of Illinois Rule
Illinois did not adopt MRs 3.4(c) and (d). It was felt that the substance of these rejected Rules (relating to frivolous discovery, and irrelevant evidence) was better handled by rules of the tribunal itself. MR 3.4(e) appears as IRPC 3.3(a)(10). The parallel provisions of the 1980 Illinois Code are found in Codes 7-101 and 7-102.
[The discussion of this topic has not yet been written.]
It is not improper for an attorney, after advising his client of the consequences of breaching an existing real estate contract, to prepare documents for the client that accomplish such breach. It is, however, improper for an attorney to aid his client in entering into a contract that he knows the client intends to breach and to then assist the client in carrying out such breach. The ISBA's opinion states that the latter situation involves fraud at the inception of the contract and it is unethical for an attorney to participate in such fraud. ISBA 728 (March 16, 1981), 1981 WL 167088.
3.4:200 Unlawful Destruction and Concealment of Evidence
Illinois Attorney Registration and Disciplinary Commission Hearing Board, Review Board, and Illinois Supreme Court opinions construing Rule 3.4 include: In re Cacciatore, 94 CH 793 (M.R. 10776); In re Holman, 96 CH 679 (M.R. 12939); In re Viola, 96 CH 646 (M.R. 13493); In re Ingersoll, 96 SH 358, April 4, 1997; In re Clifton, 94 SH 469; In re Palivos, 95 CH 504, September 5, 1996; In re Parolin, 95 CH 411; In re Landry, 95 CH 446, July 3, 1997.
There appears to be no Federal or State judicial decisions or Illinois state bar association opinion on the subject.
3.4:300 Falsifying Evidence
In In re Friedman, 392 N.E.2d 1333 (Ill. 1979), Friedman, chief of the criminal division of the Cook County State’s Attorney’s Office, directed police officers to provide false testimony in criminal cases so that the State’s Attorney could gather evidence against the criminal defendant’s attorney for bribery. Friedman admitted that, absent his good intent of prosecuting corrupt attorneys, his conduct violated the Rules of Professional Conduct. The Supreme Court held that Friedman’s motives did not excuse the fact that he violated the Rules of Professional Conduct.
[The discussion of this topic has not yet been written.]
3.4:400 Knowing Disobedience to Rules of Tribunal
In In re Friedman, 392 N.E.2d 1333 (Ill. 1979), Friedman, chief of the criminal division of the Cook County State’s Attorney’s Office, directed police officers to provide false testimony in criminal cases so that the State’s Attorney could gather evidence against the criminal defendant’s attorney for bribery. Friedman admitted that, absent his good intent of prosecuting corrupt attorneys, his conduct violated the Rules of Professional Conduct. The Supreme Court held that Friedman’s motives did not excuse the fact that he violated the Rules of Professional Conduct. See also Castillo v. St. Paul Fire & Marine Ins. Co., In re James G. Walker, 828 F. Supp. 594, 600, 603 (C.D. Ill. 1992) (listing willful disobedience of court orders among reasons for suspending attorney for a minimum of one year).
3.4:500 Fairness in Pretrial Practice
It is improper for an attorney to threaten administrative or disciplinary action against the opposing counsel to obtain an advantage in the settlement of a civil matter. IRPC 1.2(e). See also ISBA 87-07 (January 29, 1988), 1988 WL 525082.
A settlement proposal to sign a release and confidentiality agreement as an alternative to projected media publicity if a judgment is obtained against the defendant is not per se improper. ISBA 93-19 (May, 1994), 1994 WL 904172.
3.4:600 Improper Trial Tactics
The Illinois Supreme Court in First National Bank v. Malpractice Research held that the inducement of a witness to testify favorably is illegal if it violates public policy. 688 N.E.2d 1179, 1184 (Ill. 1997). In that case, the Court held that a contingent fee agreement for expert witnesses was contrary to public policy, and thus an improper inducement. Unlike attorneys, witnesses fall outside of the supervision of the courts and are not restricted by the same ethical standards as attorneys. Thus, contingent fee agreements, in which an expert's payment is contingent upon the verdict in the case, are in violation of public policy for expert witnesses. Id. The court does not prohibit the reasonable payment of expert witnesses for time spent researching and testifying in the case. Of course, witnesses attending trial proceedings or having depositions taken may be compensated at the statutory rate of $20 per day and $0.20 per mile each way for necessary travel. 705 ILCS 35/4.3 (2001).
The Court in First National Bank relied heavily on the Illinois Supreme Court cases of Gillett v. Board of Supervisors of Logan County, 67 Ill. 256, 261 (1873), and Goodrich v. Tenney, 144 Ill. 422, 431 (1893). First, the Supreme Court in Gillett held an agreement to influence testimony of certain witnesses invalid because it perverted the course of justice. Id. In that case, a committee was paid to convince a number of voters in a county election to fill out affidavits that they had voted illegally. Id. at 260. Due to the "corrupting tendency" of the agreement, it was deemed to be contrary to public policy and thus void. Id. at 262. Then, in Goodrich, the Supreme Court followed Gillett, holding that a similar agreement to influence testimony was void even though the parties may have intended no harm by their actions. 144 Ill. 422, 431 (1893). In that case, an individual was paid a fee to induce a witness to sign an affidavit and testify in a proceeding. Id. at 429. When the fee was not paid, the court refused to uphold the agreement, stating that "agreements for the purpose of stifling criminal prosecutions, agreements relating to civil proceedings involving anything inconsistent with the full and impartial justice therein, or that tend to pervert the course of justice or its pure administration by the courts, and many others, are justly deemed contracts of turpitude, contrary to sound public policy and void." Id. In criminal prosecutions, it is not against public policy to allow a police officer to testify even though his office stands to benefit financially from a guilty finding. Illinois v. McNeill, 736 N.E.2d 703, 705 (Ill. App. 5th Dist. 2000). In that case, the defendant was accused of driving under the influence of alcohol, a charge which in certain Illinois jurisdictions carries a fine that is paid to the police department. The court stated that in those circumstances, the police officer is viewed more as a party to the lawsuit than a independent witness. Id. Even when a witness benefits directly from the decision, it may not be deemed an improper inducement to testify. United States v. Gonzales, 927 F.2d 139, 145 (3rd Cir. 1991). The government offered an informant twenty-five percent of the value of any narcotic forfeiture in exchange for his cooperation in testifying. The informant's compensation did not offend due process because the jury considered this payment in weighing the informant's credibility. The Washington Supreme Court has held that a prosecutor may not offer to drop charges against a witness in an exchange for his agreement not to testify favorably for the defense. In re Bonet, 29 P.3d 1242, 1248 (Wash. 2001). In that case, the deputy prosecuting attorney offered a defense witness immunity from criminal charges in a separate case if he agreed to invoke his Fifth Amendment rights in the current action. Even though it was unclear whether the defense witness was going to testify, the court held that the agreement was highly unethical and sanctions were appropriate.
In the federal system, there is a different, stricter standard. Section 18 U.S.C. 201 (c)(2) states that an illegal inducement occurs when someone "directly or indirectly, gives offers, or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial, hearing or other proceeding, 18 U.S.C. 201 (c)(2). The United States Court of Appeals for the Seventh Circuit supported the "thing of value" standard - stating that a "thing of value" cannot be exchanged for a witness' promise to testify or not to testify under oath. United States v. Condon, 170 F.3d 687, 688 (7th Cir. 1999). In that case, the prosecution's promise not to prosecute a witness was not deemed to be a "thing of value" according to 18 U.S.C. 201 (c)(2). Id. at 689. Non-expert witnesses may be compensated, but only for reasonable cost of travel and for reasonable value of time lost in attendance. Hamilton v. General Motors, 490 F.2d 223, 229, (7th Cir. 1973).
3.4:700 Advising Witness Not to Speak to Opposing Parties
3.5:100 Comparative Analysis of Illinois Rule
IRPC 3.5(a) through (g) are derived from Illinois Code 7-108 modified in (a); IRPC 3.5(h) is derived from Illinois Code 7-110(a), substantially modified; and IRPC 3.5(i) is derived from Illinois Code 7-110(b).
[The discussion of this topic has not yet been written.]
3.5:200 Improperly Influencing a Judge, Juror, or Other Court Official
Illinois Attorney Registration and Disciplinary Commission Hearing Board, Review Board, and Illinois Supreme Court opinions construing Rule 3.5 include: In re Palmisano, 92 CH 109; In re Gerard, 95 CH 397 (M.R. 12583); In re Feldman, 96 CH 427, August 26, 1997.
In ISBA 94-03 (July, 1994), 1994 WL 904176, the ISBA concluded that a law firm could entertain public officials (both elected and appointed) of a client at events such as a holiday party or summer picnic “provided such events are not extravagant and do not involve the awarding of expensive gifts, would reasonably constitute ordinary social hospitality and would not be improper.” The factors used by the Illinois Supreme Court to determine the limits of “ordinary social hospitality” (discussed below) suggest that ordinary individual client entertainment of public officials should not be improper, in contrast to entertainment that is unduly extravagant or inordinately expensive.
In In re Corboy, 528 N.E.2d 694 (Ill. 1988), the Illinois Supreme Court considered several factors in determining whether conduct was “ordinary social hospitality” under the predecessor of Rule 3.5: (1) the value of the gift, (2) the relationship between the official and the donor, (3) the social practices and customs involved, and (4) the particular circumstances of the gifts and loans. An attorney engages in mere “ordinary social hospitality” when gifts to a judge consist of those routine amenities, favors and courtesies which are normally exchanged between friends and acquaintances, and which would not create the appearance of impropriety to a reasonable, objective observer. The rule that an attorney not give or lend anything of value to a judge is designed not only to forestall attorneys from seeking to exercise improper influence over the judiciary, but also to eliminate even the appearance of improper influence. An attorney does not have to act with any dishonest intent or motive in order to violate the rule, and the attorney may be disciplined for violating the rule even if the conduct is the result of an honest mistake. Id. at 698. The Court read Rule 7-110 (2) of the Illinois Code of Professional Responsibility together with Rule 65(C)(4) of the Illinois Code of Judicial Conduct governing acceptance by a usage of a gift or loan to find a violation of Rule 7-110(2), the predecessor of IRPC 3.5.
In ISBA 90-25 (March 9, 1991), 1991 WL 735077, the ISBA concluded that it is not necessarily improper for a judge to appoint an attorney as executor of an estate where the attorney made financial contributions to the judge’s campaign and where another attorney from the same firm served on the judge’s campaign committee. However, an attorney should decline such an appointment if it will likely result in a violation of the Rules of Professional Conduct or other law or prejudice the administration of justice.
See also, ISBA 86-18 (July 17, 1987), 1987 WL 383876 (a law firm may not invite and bear the expense of judges’ attendance at a firm-sponsored client golf outing because of the appearance of impropriety); ISBA 866 (April 27, 1984), 1984 WL 262795 (an attorney who has contributed to and/or participated in a judge’s election campaign is not precluded from appearing before that judge in subsequent judicial proceedings).
An attorney is not absolved of responsibility for following the Rules of Professional Conduct even though a judge extorted money from the attorney and, in response to the attorney’s request, the judge recused himself from the case without any benefit to the attorney’s client or to himself. In re Topper, 553 N.E.2d 306 (Ill. 1990). In addition, attorneys who made loans to judges before the date the Disciplinary Rules were adopted in 1980 have been held to have violated the Rules. See, e.g., In re Lane, 535 N.E.2d 866 (Ill. 1989) (1977 loan for campaign expenses which was given to judge personally rather than to his campaign fund violated rules); In re Lidov, 544 N.E.2d 294 (Ill. 1989) (1976 loans violated rules); In re Neistein, 547 N.E.2d 198 (Ill. 1989) (late 1979 or early 1980 loan violated rules); In re Powell, 533 N.E.2d 831 (Ill. 1988) (1979 loan violated rules). In these cases, the Illinois Supreme Court read the Disciplinary Rules in conjunction with the Code of Judicial Conduct to determine what conduct was prohibited at the times the loans were made.
The Illinois Supreme Court has held that arranging for a loan for a judge at a time when it was not likely that the attorney will appear before the judge did not violate the Code of Professional Responsibility Disciplinary Rules. In re Weinstein, 545 N.E.2d 725 (Ill. 1989); In re Jones, 532 N.E.2d 239 (Ill. 1988) (no sanction imposed where attorney obtained a loan and transferred the proceeds to a judge where loan was based on casual friendship and neither attorney nor any of his associates were likely to appear before the judge and benefit from the loan). However, the attorney violated the Rules where he arranged for a loan for a judge after a pro bono case had been assigned to the judge even though the case settled before the judge made any rulings and before the attorney appeared before the judge. In re Weinstein, 545 N.E.2d 725 (Ill. 1989). See also In re Rothenberg, 535 N.E.2d 849 (Ill. 1989) (providing circuit court judge with over $8,000 in no-interest loans while appearing before the judge warranted suspension from practice of law); In re Karzov, 533 N.E.2d 856 (Ill. 1988) (loaning a judge money in order to avoid future adverse rulings violated the Disciplinary Rules); In re D’Angelo, 533 N.E.2d 861 (Ill. 1988) (paying more than $10,000 for a decade of car rental charges for judges and public officials warranted disbarrment); In re Heller, 533 N.E.2d 824 (Ill. 1988) (attorney was disbarred after arranging for loans for a judge before whom he regularly practiced); In re Ketchum, 528 N.E.2d 689 (Ill. 1988) (attorney suspended after soliciting loans from other attorneys on behalf of the presiding judge of a division of a court in which attorney had a substantial number of pending cases).
There appears to be no Federal or State judicial decisions or Illinois state bar association opinion on the subject.
3.5:300 Improper Ex Parte Communication
In ISBA 94-07 (September, 1994), 1994 WL 904190, the ISBA concluded that it is improper for a lawyer to engage in or respond to an ex parte communication from a judge concerning the drafting of an order or judgment without giving proper notice to opposing counsel. “[I]f a lawyer were to receive an ex parte request from a judge to prepare an order or judgment...the lawyer should suggest that the judge either include other interested counsel in the conversation by means of a telephone conference call or send all counsel a brief letter or other appropriate written notice advising of the judge’s ruling and directing the appropriate lawyer to draft and submit a proposed order or judgment to the court and other interested counsel. At a minimum, a lawyer receiving such a request must give timely notice to counsel for all interested parties of the fact and substance of the ex parte communication and also promptly deliver to all counsel copies of any draft orders or other written material submitted to the court.”
Illinois courts have held that orders entered without notice
to opposing counsel are void and the failure to notify other counsel of ex parte
contacts may also result in professional discipline for attorneys involved.
See City of Chicago v. American Nat’l Bank & Trust Co., 525
N.E.2d 915 (Ill. App. 1
See also ISBA 93-12 (March, 1994), 1994 WL 904184 (ISBA concluded that it was improper for a state’s attorney to communicate with a judge to obtain an emergency stay of a bail reduction order unless such communication was permitted by statute); ISBA 92-21 (March 26, 1993), 1993 WL 836954 (a judge may communicate with his or her spouse’s attorney provided the judge has no official relationship to the spouse’s legal proceedings and there is no impropriety in the actions of the spouse’s attorney in conferring with the judge).
3.5:400 Intentional Disruption of a Tribunal
There appears to be no Federal or State judicial decisions or Illinois state bar association opinion on the subject.
3.6:100 Comparative Analysis of Illinois Rule
IRPC 3.6(a) is MR 3.6(a), substantially modified; IRPC 3.6(b) is the preamble of MR 3.6(b) followed by 1980 IRPC 7-107(b)(1) through (6) (modified in (b)(3)); IRPC 3.6(c) is substantially the same as MR 3.6(c).
The parallel Illinois Code provision was Illinois Rule 7-107.
IRPC 3.6(a) is MR 3.6(a), modified by use of the “serious and imminent” criterion to describe impermissible conduct rather than the “substantial likelihood of materially prejudicing an adjudicative proceeding” criterion.
As to IRPC 3.6(b), the preamble of IPRC 3.6(b) derives from the preamble of MR 3.6(b), as it read before the 1994 amendments, followed by 1980 Rule 7-107(b)(1) through (6), modified in (b)(3). While IRPC 3.6(b) preserves this laundry list of prohibited speech, the current Model Rules consigns it to section five of the comments.
IRPC 3.6(c) is substantially MR 3.6(c), but is modified by the use of “when the lawyer reasonably believes” for “when there is reason to believe.” See ABA Lawyers’ Manual on Professional Conduct, 21 (1995).
The parallel 1980 Code provision is 1980 Rule 7-107. Similar to the MR, the Model Code provision was amended in 1994 to address the problems set forth in Gentile v. Nevada State Bar 501 U.S. 1030 (1991). Illinois, however, has not amended its corresponding provision; rather it continues to use of its version of the ABA Model Rules prior to Gentile.
3.6:200 Improper Extrajudicial Statements
Model Rule 3.6(a) adopts the general criterion of “substantial likelihood of materially prejudicing an adjudicative proceeding” to describe impermissible conduct of a lawyer. IRPC 3.6(a), however, uses a different criterion to describe impermissible conduct. IPRC 3.6 states that the “lawyer should not make an extrajudicial statement if it...would pose a serious and imminent threat to the fairness of an adjudicative proceeding.”
The origins of the Illinois criterion are relatively recent. In Sheppard v. Maxwell. 384 U.S. 337 (1966), the Supreme Court set the minimum constitutional standard for the restrictions on lawyer speech at a “reasonable likelihood” of prejudicing a fair trial. As a result, the ABA included this standard in its first rule barring lawyers’ extrajudicial comments, in criminal cases, that are “reasonably likely to interfere with a fair trial.” See ABA Lawyers’ Manual on Professional Conduct 25 (1995). Ten years later the ABA amended the standard and changed the “reasonable likelihood” test to a “clear and present” danger test. This change was prompted by several judicial decisions, the most noteworthy of which is in Chicago Council of Lawyers v. Bauer. 522 F.2d 242 (7th Cir. 1975).
The Court of Appeals for the Seventh Circuit ruled in Chicago Council of Lawyers that the “reasonable likelihood standard is over broad and does not comply with constitutional standards.” Chicago Council of Lawyers v. Bauer, 522 F.2d 242. The Seventh Circuit explained that “a narrower and more restrictive standard... should apply : Only those comments that pose a “serious and imminent threat” of interference with the fair administration of justice can be constitutionally proscribed.” Id.; but see Gentile v. Nevada State Bar, 501 U.S. 1030, 1075 (1991) (Rehnquist, C.J.) (the "substantial likelihood of material prejudice standard" of most states is constitutional for it balances First Amendment rights of attorneys with the State's interest in fair trials "by imposing only narrow and necessary limitations on lawyers' speech"). The court stated that the more restrictive "serious and imminent" standard puts a lawyer on stricter notice "if he must gage his intended comments by a test that limits only comments which are a serious and imminent threat of interference with a fair trial than if his statements were governed by the more amorphous phrase: a reasonable likelihood that such a comment will interfere with a fair trial." Id.
In its most recent redraft of MR 3.6 however, the drafters stopped short of the rule’s previous “clear and present danger” standard and instead endorsed a “substantial likelihood of material prejudice” as the appropriate test. See ABA Lawyers’ Manual on Professional Conduct, 25 (1995). Id. Unlike MR 3.6(a), IRPC 3.6(a) continues to use the “serious and imminent threat” test as set forth by the Seventh Circuit in Chicago Council. But see Gentile v. Nevada State Bar, 501 U.S. 1030, 1037 (1991) (Kennedy, J.) (the difference between the serious and imminent test of some states and the more common formulation of substantial likelihood of material prejudice could prove “mere semantics”). As a result, it has been said IRPC 3.6(a) is a more permissive test than MR 3.6(a) since it prohibits only those statements that “would pose a serious and imminent threat to the fairness of an adjudicative proceeding.” See ABA Annotated Model Rules of Professional Conduct 351 (1996).
There is no bright line for determining when an extrajudicial statement is proper. Id. Any determination involves balancing First Amendment interests, the duties of diligence and zealous advocacy, and the preservation of our system of justice and fairness of trials. See Gorney “Model Rules and Litigation Journalism: Enough or Enough is Enough?,” 67 N.Y.St.B.J. 6 (1995).
However, there are specific factors courts have considered in assessing the potential prejudice of an extrajudicial statement. For example, the timing of a lawyer’s extrajudicial statement may affect its potential for prejudice. See ABA Annotated Model Rules of Professional Conduct 352 (1996) (citing United States v. Bingham, 769 F. Supp. 1039 (N.D. Ill. 1991) (lawyers representing members of Chicago street gang violated local rule regarding public discussion of criminal litigation by making statements on the eve of jury selection criticizing judge’s decision to impanel anonymous jury)). In addition to timing, whether a lawyer intended a trial by media or attempted to counter adverse publicity is also relevant in assessing potential prejudice. Id. at 353 (citing Gentile v Nevada State Bar, 501 U.S. 1030, 1049 (1991) (the Court took note that the lawyer made a conscientious effort to comply with the trial publicity restrictions and declined to answer certain questions at the press conference in an effort to comply with the rule)).
3.6:300 Permissible Statements
In IRPC 3.6(c), however, Illinois deletes paragraph (b)(6) of the MR, which prohibits mention that a defendant has been charged with a crime unless the presumption of innocence is also mentioned. See ABA Lawyers’ Manual on Professional Conduct, 21 (1995).
In Gentile v. Nevada State Bar, 501 U.S. 1030 (1991) the United States Supreme Court held that Nevada Supreme Court Rule 177 was void for vagueness “as interpreted by the Nevada Supreme Court.” See Gentile, 501 U.S. at 1048. Since IRPC 3.6(c) currently provides the same language of the Nevada Supreme Court Rule 177 that was deemed void, it may follow that IRPC is also void for vagueness and, therefore, unconstitutional.
In Gentile, a criminal defense lawyer challenged a disciplinary action taken against him by the Nevada State Bar because of certain remarks he made at a press conference related to his client’s anticipated defense. Id. The Court explained Nevada Rule 177(3), the safe harbor provision of the Nevada trial publicity rule, misled the lawyer into thinking that he could give a press conference without fear of discipline. Nevada Rule 177(3)(a) provides that a lawyer “may state without elaboration...the general nature of the...defense.” Id. The Court stated that not only does the rule fail to provide notice to those to whom it is directing, but also the right to explain the “general” nature of the defense without “elaboration” provides insufficient guidance because “general” and “elaboration” are both classic terms that have no settled usage or tradition of interpretation in law. Id. at 1048-49. The Nevada rule was therefore vague since the lawyer had no principle for determining when his remarks came within the safe harbor provision. See id.
Just as Nevada Rule 177(3) provided, IRPC 3.6(c) states that “a lawyer involved in the investigation of litigation of a matter may state without elaboration...the general nature of the claim or defense.” See IRPC 3.6. It may follow, therefore, that IRPC 3.6 is also vague and unconstitutional. See Ronald Rotunda, “Dealing with the Media: Ethical, Constitutional, and Practical Parameters,” 84 Ill. B.J. 614, 618 (1996) (the current Illinois rule shares the “constitutional infirmities” of the Nevada rule); see also Gentile, 501 U.S. at 1049 (holding the Nevada Supreme Court Rule 177 void for vagueness “as interpreted by the Nevada Supreme Court”).
To address the problems that surfaced in Gentile, the ABA House of Delegates significantly amended Model Rule 3.6 at its 1994 Annual Meeting. This was the first time the rule had been amended since its original adoption in 1983. Unlike Model Rule 3.6, there has been no amendment to the Illinois rule; Illinois still uses the version of the ABA Model Rule prior to Gentile.
3.6:400 Responding to Adverse Publicity
Illinois currently has no right to reply to adverse publicity.
3.7:100 Comparative Analysis of Illinois Rule
The MR language did not clearly separate the situation where a lawyer is testifying on behalf of his or her client from other situations. IRPC 3.7(c) is a change from Illinois Code 5-102, and a substantial waiver of prior prohibitions.
[The discussion of this topic has not yet been written.]
3.7:200 Prohibition of Advocate as Witness
IRPC 3.7, which
prohibits a lawyer from testifying in a matter in which he represents one of
the parties, is designed to serve a number of purposes. The most important purpose
is to eliminate the possibility that the attorney may not be a fully objective
witness and may be perceived by a judge or jury as distorting the truth in order
to advance the interest of his client. Jones v. City of Chicago,
610 F. Supp. 350 (N.D. Ill. 1984). The Rule is also designed to prevent
the trier of fact from confusing the roles of advocate and witness and thereby
granting undue weight to the attorney's testimony, creating unfair prejudice
against the opponent. Greater Rockford Energy & Technology
Corp. v. Shell Oil Co., 777 F. Supp. 690 (C.D. Ill. 1991). Another purpose
is to prevent a situation in which an attorney/witness will be in a position
to argue his own credibility to the trier of fact. And lastly, the Rule is designed
to preserve public confidence in the administration of justice. Weil,
Freiburg & Thomas, P.C. v. Sara Lee Corp., 577 N.E.2d 1344 (Ill. App. 1
prevents a lawyer from continuing representation of a client if the lawyer knows
or reasonably should know that he may be called as a witness on behalf of the
client, unless certain exceptions apply. An attorney who has critical information
regarding an issue important to the client's case will normally be disqualified
from further representing the client unless that evidence can be introduced
through another source. See United States v. Spears, 965
F.2d 262 (7th Cir. 1992) (criminal defendant's attorney required to withdraw
from representing defendant because government's key witness had made a prior
inconsistent statement to defendant's attorney and defendant's attorney's testimony
needed to impeach government witness); People v. Burrows,
592 N.E.2d 997 (Ill. 1992) (defense counsel's decision not to withdraw
in order to testify regarding inconsistent statements given by prosecution witness
fell below objective standard of reasonableness); People
v. Beals, 618 N.E.2d 273 (Ill. App. 5th Dist. 1992) (holding defense
attorney's personal testimony by way of stipulation against his own client constituted
ineffective assistance of counsel); National Wrecking Co.
v. Midwest Terminal Corp., 601 N.E.2d 999 (Ill. App. 1
Similarly, an attorney may represent a client in the early
stages of a case in which the attorney may possibly be called to testify without
being subject to discipline. Weil, Freiburg & Thomas, P.C.
v. Sara Lee Corp., 577 N.E.2d 1344 (Ill. App. 1
IRPC 3.7 allows
a lawyer to testify in a matter when the refusal to continue the representation
of the client would work a substantial hardship on the client. An attorney's
withdrawal from representation of a client shortly before or during the trial
constitutes a substantial hardship on the client. People
v. Moore, 614 N.E.2d 152 (Ill. App. 1
If an opponent intends to call a client's attorney as a witness, then the lawyer may continue the representation of the client until the lawyer knows that his own testimony may be prejudicial to his client. Disqualification of an attorney representing a criminal defendant is proper when the attorney may be called to testify as a witness and his testimony may be prejudicial to his client. United States v. Sanders, 690 F. Supp. 677 (N.D. Ill. 1988); People v. Norris, 361 N.E.2d 105 (Ill. App. 1st Dist. 1977) (assistant public defender should have withdrawn from case when it became clear he could have served as valuable witness against the client's assistant public defenders, thus creating a potential conflict of interest).
Parties often attempt to disqualify their opponent's attorney based on the fact that the attorney will be needed to testify at trial. Opponents often use disqualification motions as tactical weapons in litigation and also for the purposes of harassment. Weil, Freiburg & Thomas, P.C. v. Sara Lee Corp., 577 N.E.2d 1344 (Ill. App. 1st Dist. 1991). The disqualification of an attorney destroys the attorney/client relationship by preventing the client from freely retaining an attorney of his choice. Disqualification is a drastic measure which courts should only grant when the opposing side can show that the lawyer's testimony is likely to be prejudicial to the lawyer's client. Weeks v. Samsung Heavy Industries, Co., 909 F. Supp. 582 (N.D. Ill. 1996) (despite intent to call opposing attorney as witness, testimony would be prejudicial, therefore, trial court was justified in refusing to grant dismissal under Rule 3.7(b)). The finding of prejudice is subject to a more stringent test when an opposing party calls an attorney to testify than when the attorney testifies on behalf of his own client because parties may attempt to call opposing lawyers as witnesses in order to disqualify them. Greater Rockford Energy & Technology Corp. v. Shell Oil Co., 777 F. Supp. 690 (C.D. Ill. 1991). Disqualification will be proper when from the outset the attorney knew that he was likely to be called as a witness. National Wrecking Company v. Midwest Terminal Corp., 601 N.E.2d 999 (Ill. App. 1st Dist. 1992) (attorney was only witness who could have testified regarding contractual negotiations and the trial court properly concluded that the attorney was disqualified as he was likely to be called as a witness). A court will weigh the equities before disqualifying an attorney based on an opposing party's motion to disqualify. See In re Lee, 481 N.E.2d 1045 (Ill. App. 1st Dist. 1985) (that, decisions as to whether to allow attorneys to testify in trials lie within the sound discretion of the trial court). Even when the disqualification of an attorney would be proper under the rules because the attorney should have known that he would be called as a witness at the trial, disqualification may not be appropriate when the opposing party delays in bringing its motion for disqualification. Greater Rockford Energy & Technology Corp. v. Shell Oil Co., 777 F. Supp. 690 (C.D. Ill. 1991) (attorney not disqualified on opposing party's motion to disqualify even though attorney should have known he was likely to be called as witness, when opposing party's motion to disqualify was brought 32 months after first noting a possible conflict).
Illinois Attorney Registration and Disciplinary Commission Hearing Board, Review Board, and Illinois Supreme Court opinions construing Rule 3.5 include: In re Horne, 93 CH 568, August 9, 1996; In re Landry, 95 CH 446, July 3, 1997; In re Bartley, 94 SH 489, October 24, 1995.
3.7:300 An Affiliated Lawyer as Advocate (Imputed Disqualification)
Unlike the prior model Code of Professional Responsibility,
IRPC 3.7 does not automatically prohibit
a lawyer from representing a client when another lawyer in the lawyer’s firm
may be called as a witness. IRPC 3.7(c)
allows a lawyer to act as an advocate in a trial in which another lawyer in
his firm may be called as a witness unless prohibited by IRPC
1.7 or IRPC 1.9. Beneficial
Dev. Corp. v. City of Highland Park, 606 N.E.2d 837 (Ill. App. 2
3.8:100 Comparative Analysis of Illinois Rule
The Illinois drafters observed that MR 3.8 reaches a great deal of detail, most of which appeared to be more appropriate to rules of court or to substantive law. George W. Overton, The New Illinois Rules of Professional Conduct: An Annotated Edition, Rule 3.8 Cmt. (1991).
IRPC 3.8(a) broadens the language of MR 3.8(a). Where MR 3.8(a) refers only to a prosecutor, IRPC 3.8(a) refers to a public prosecutor or other government lawyer. MR 3.8(a) provides that a prosecutor . . . shall refrain from prosecuting a charge . . . , while IRPC 3.8(a) uses the language: . . . shall not institute or cause to be instituted criminal charges . . .. Where MR 3.8(a) refers to a charge that the prosecutor knows is not supported by probable cause, IRPC 3.8(a) refers to where the prosecutor or lawyer knows or reasonably should know that the charges are not supported by probable cause.
IRPC 3.8(b) broadens in part the scope of MR 3.8(d). Again, where MR 3.8(d) refers only to a prosecutor, IRPC 3.8(b) refers to a public prosecutor or other government lawyer in a criminal investigation. MR 3.8(d) requires timely disclosure to the defense, while IRPC 3.8(b) requires timely disclosure to counsel for the defendant or to the defendant if the defendant is not represented by a lawyer. Where MR 3.8(d) refers to all evidence or information known to the prosecutor, IRPC 3.8(b) refers to the existence of evidence, known to the prosecutor or other government lawyer. However, MR 3.8(d) requires timely disclosure to the tribunal of all unprivileged mitigating information, with the exception of situations in which the prosecutor receives a protective order from the tribunal, while IRPC 3.8(b) makes no reference to disclosure to the tribunal.
With two exceptions, IRPC 3.8 is identical to DR 7-103. First, where DR 7-103(A) uses the language “knows or it is obvious” that the charges are not supported by probable cause, IRPC 3.8(a) uses the language “knows or reasonably should know.” Second, under DR 7-103(B), the disclosure requirement extends to evidence that tends to reduce punishment, whereas under IRPC 3.8(b) it does not.
3.8:200 The Decision to Charge
State and model ethical codes alike require prosecutors to refrain from prosecuting a charge that they know is not supported by probable cause. MR 3.8(a), DR 7-103(A), IRPC 3.8(a). Under the MR, “knows” means actual knowledge of the fact in question. However, the Model Rules provide that a person’s knowledge may be inferred from circumstances. Thus, MR 3.8(a) is a subjective standard, which frames the professional duty in terms of the prosecutor’s own beliefs. By contrast, the IRPC requires probable cause to be measured by both subjective and objective standards ( knows or reasonably should know ).
The prosecutor’s duty under MR 3.8(a) is an ongoing one and a prosecutor is required, as a matter of professional ethics, to discontinue a prosecution when the prosecutor knows that probable cause no longer exists. Given the prosecutor’s broad discretion and ethical duty not to knowingly advance unsupportable claims, a court must grant a motion to dismiss filed by a prosecutor who believes that the evidence is insufficient to support the state’s case.
Although the prosecutor’s discretion in decisions to charge and maintain claims is broad, the prosecutor cannot act with impure motives, such as prejudice, or revenge. An inference of prosecutorial vindictiveness arises when a prosecutor, without notice, increases the severity of the possible sanctions for no valid reason after the defendant has exercised a procedural right. People v. Walker, 419 N.E.2d 1167 (Ill. 1981).
One area of disagreement among courts is that of release-dismissal agreements. Courts as well as ethics committees disagree as to whether a prosecutor may condition dismissal of criminal charges, or a plea to lesser charges, on the defendant’s arrangement to waive potential civil rights or tort claims against the arresting officer. See Town of Newton v. Rumery, 480 U.S. 386 (1987) (rejecting per se rule invalidating release-dismissal agreements); see also Bartholomy, An Ethical Analysis of the Release-Dismissal Agreement, 7 Notre Dame J. L. Ethics & Pub. Pol y 331 (1993).
While few Courts have examined the prosecutor s duty under Rule 3.8, courts have considered separation of powers, qualified immunity, due process, and equal protection as bases for prosecutorial duties. Although the following cases do not construe MR 3.8, they may be helpful in understanding the parameters of court regulation of prosecutorial action.
Separation of Powers:
Courts generally take a strictly limited role in reviewing a prosecutor’s exercise of discretion. The prosecutorial function of initiating criminal charges is a function of the executive branch, and not the judicial branch. Garrett v. United States, 471 U.S. 773 (1985). The strength of the case, the prosecution’s general deterrence value, the government s enforcement priorities, and the case’s relationship to the government s overall enforcement plan, are not readily susceptible to the kind of analysis courts are competent to undertake. Wayte v. United States, 470 U.S. 598 (1985). See also People ex rel. Daley v. Moran, 445 N.E.2d 270 (Ill. 1983) (The trial judge cannot assume the role of the prosecutor, whose responsibility it is, as the representative of the people, to evaluate the evidence and other relevant factors to determine what offenses can and should be charged).
Several policy reasons favor broad discretion on the part of the prosecutor. The first reason is that litigation may cause a diversion of the prosecutor’s energies from his public duty of enforcing the criminal law. Imbler v. Pachtman, 424 U.S. 409, 423 (1976). There is also a danger that the prosecutor would shade his or her decisions, rather than exercising the independence of judgment required by the public trust. Id. The public trust of the prosecutor’s office would suffer if he were to make every decision in terms of his own liability in a suit for damages. Id. at 424. Furthermore, requiring a prosecutor to defend his own decisions, often years after they were made, could impose unique and intolerable burdens upon a prosecutor who is responsible for hundreds of indictments and trials every year. Imbler, 424 U.S. at 425.
See also Auriemma v. Montgomery, 860 F.2d 273 (7th Cir. 1988).
Although the broad discretion that the legal system vests in prosecuting attorneys is well-established, there are constitutional limits on the prosecutor’s exercise of this discretion. Bordenkircher v. Hayes, 434 U.S. 357, (1978) at 365. For example, the guarantee of due process prohibits prosecutors from choosing to proceed against a defendant for exercising a statutory or constitutional right. See Bordenkircher, 434 U.S. at 363 ( To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort ). Accord, People v. Moriarty, 25 Ill. 2d 565; 185 N.E.2d 688 (Ill. 1962) (A defendant in a criminal case should not be punished by a heavy sentence merely because he exercises his constitutional right to be tried before an impartial judge or jury); see also, Blackledge v. Perry, 417 U.S. 21 (1974) (Defendant was entitled to pursue a statutory right to trial de novo without apprehension that the state would retaliate by substituting a more serious charge).
A decision to prosecute may not rest on considerations of race, religion, or other arbitrary classification. Oyler v. Boles, 368 U.S. 448, 456 (1962). The defendant must show that the prosecutor chose a particular course of action at least in part because of and not merely in spite of its adverse effects on an identifiable group. Wayte v. United States, 470 U.S. 598, 610 (1985). The defendant must show current intent to discriminate, not merely historical evidence that the prosecutor acted with discriminatory intent. McClesky v. Kemp, 481 U.S. 279, 298 (1987). In order to receive discovery from the government, a defendant pursuing a selective prosecution claim must make a showing that similarly situated persons are not being prosecuted for violations of the same offense. United States v. Armstrong, 116 S. Ct. 1480 (1996).
3.8:300 Efforts to Assure Accused's Right to Counsel
Although Illinois has not adopted MR
3.8(b), the Illinois Appellate Court has ruled in this area. See, e.g.,
People v. Meccia, 655 N.E.2d 1113 (Ill. App. 1
3.8:400 Seeking Waivers of Rights from Unrepresented Defendants
Illinois has not adopted MR 3.8(c). But see People v. Smith, 442 N.E.2d 1325 (Ill. 1982) (holding that there can be no knowing waiver of right to counsel if the suspect has not been informed that the attorney was available).
3.8:500 Disclosing Evidence Favorable to the Accused
Because the prosecutor is a minister of justice and not simply an advocate, the prosecutor’s responsibilities include the disclosure of exculpatory evidence to the defense. MR 3.8(d) and IRPC 3.8(b) require the disclosure of all information known to the prosecutor that tends to negate the guilt of the accused or to mitigate the degree of the offense.
Suppression of evidence favorable to the accused, upon request of the accused, constitutes a violation of due process, regardless of the good or bad faith of the prosecutor. Brady v. Maryland, 373 U.S. 83 (1963). However, a prosecutor has not breached the duty to disclose evidence unless the nondisclosure denied a defendant his constitutional right to a fair trial. Id. Therefore, the duty to disclose evidence does not extend to evidence that is immaterial to the guilt or innocence of the accused. Id.; see also United States v. Bagley, 473 U.S. 667 (1985) (requiring a new trial only where there is a reasonable probability that, but for the nondisclosure, the result of the proceeding would have been different).
The prosecutor’s duty to disclose may arise even where the defense does not request specific disclosure. If evidence is clearly supportive of the innocence of the accused, the duty of disclosure should arise even where no request has been made. United States v. Agurs, 427 U.S. 97, 107 (1976). In addition, the prosecutor has a duty to disclose the existence of exculpatory evidence even where the defendants could have obtained the undisclosed evidence by exercise of due diligence. United States v. Andrews, 824 F. Supp. 1273 (N.D. Ill. 1993). The prosecutor, thus, has an affirmative duty to voluntarily disclose exculpatory information even where the information is readily available. Id. at 1289.
A prosecutor also has an affirmative duty to search for and disclose Brady material. Andrews, 824 F. Supp. at 1289. Thus, a prosecutor may not refrain from investigation to avoid discovering evidence that weakens the government’s case. See United States v. Gutman, 725 F.2d 417 (7th Cir. 1984) (Coffey, J., dissenting at 422). The prosecutor’s duty to disclose all evidence favorable to the accused includes evidence relating to witness credibility. Giglio v. United States, 405 U.S. 150 (1972); see also United States v. Bagley, 473 U.S. 667 (1985) (impeachment evidence, as well as exculpatory evidence, falls under the Brady rule); and Andrews, 824 F. Supp. at 1288 (disclosure obligations under Brady and Giglio include information concerning misconduct of government inmate witnesses while in custody as protected witnesses, and benefits conferred to witnesses by the government).
Brady does not operate in cases where evidence which may have had exculpatory value has been lost or destroyed because, in such cases, the good or bad faith of the prosecutor and the state becomes relevant, whereas, under Brady, the good or bad faith of the prosecutor is irrelevant. See In re C.J., 652 N.E.2d 315 (Ill. 1995).
3.8:600 Monitoring Extrajudicial Statements by Law Enforcement Officials
Illinois has not adopted MR 3.8(e). However, 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 IRPC 5.3.
3.8:700 Issuing a Subpoena to a Lawyer
In 1990, when Illinois adopted its new Rules of Professional Conduct, it did not adopt MR 3.8(f) (“Issuing a Subpoena to a Lawyer”). However, effective November 20, 1991 the Illinois Supreme Court added the language of MR 3.8(f) by court order [IRPC 3.8(c)]. On October 30, 1992, just 11 months after IRPC 3.8(c) took effect, the Illinois Supreme Court issued an order repealing the rule from the IRPC. S. Gillers and R. Simon, Jr., Regulation and Lawyers: Statutes and Standards 251-252 (1997).
3.8:800 Making Extrajudicial Statements
Illinois has not adopted MR 3.8(g).
3.8:900 Peremptory Strikes of Jurors
While IRPC Rule 8.4(a)(5) prohibits all lawyers from engaging in adverse discriminatory treatment of jurors based on race, sex, religion, or national origin, the rules provide no special limitations on a prosecutor's use of peremptory strikes beyond those established by the United States Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986), and its progeny. See People v. Williams, 670 N.E.2d 638 (Ill. 1996).
3.9:100 Comparative Analysis of Illinois Rule
Illinois did not adopt MR 3.9 ("Advocate in Non-adjudicative Proceedings") because it was felt that the rules of any legislative or administrative tribunal could adequately deal with the matter treated in that Rule.
There was no Illinois Code Rule on this subject.
[The discussion of this topic has not yet been written.]
3.9:200 Duties of Advocate in Nonadjudicative Proceedings
The Illinois Rules of Professional Conduct impose no special duties upon an attorney who serves as an advocate in a legislative, executive, administrative, municipal or other nonadjudicative proceeding. The advocate's duties are instead defined by the rules of the tribunal.