Continuing Legal Education Blog

ARDC Policies and Procedures

Aug 09, 2015

Creation Of The ARDC

When adopting the Rules, The Illinois Supreme Court granted the ARDC the “sole authority to regulate the admission and discipline of lawyers in Illinois." The proceedings before the ARDC are governed by Supreme Court Rules 751-780 and the Rules of the ARDC.

The rules are enforced through a seven-member Commission appointed by the ARDC Board Members. Ill. S. Ct. Rule 751(b). There are 4 lawyers and 3 non-lawyers all serving a 3-year term as volunteers. Ill. S. Ct. Rule 751(b) and (c). The Commission appoints an Administrator who acts as the Principal Executive Officer of the ARDC. Ill. S. Ct. Rule 751(e)(1). Among numerous other responsibilities, the Administrator, along with his or her 100-plus employees, is responsible for the investigation of claims and prosecution of disciplinary cases. www.iardc.org/overview.html. See also Ill. S. Ct. Rule 752(a).

The ARDC Complaint

When a party wants to make a complaint against an attorney, they contact the ARDC. A complaint can be made by anyone who has knowledge of something they believe to be misconduct. Typically, a complaint is initiated by a former client, an opposing party, opposing counsel, or a judge. Id. There is no statute of limitations for an ethical violation. A party can bring a complaint at any time, and an attorney may end up defending against something that occurred many years prior. The ARDC also has a team of paralegals that look at the daily papers specifically to see if an attorney is involved in an ethical violation. Id. If so, the ARDC will initiate its own investigation. ARDC Rule 51.

Most files start in the Intake Division. The attorneys in the Intake Division can decide that a case has no merit, referred to as an NM for no misconduct. Id. In such cases, the ARDC notifies the respondent via mail about the complaint and will include a cover letter that indicates there is no basis for a response. Id. The investigation is at that point closed. ARDC Rule 54.

However, “…the ARDC undertakes to investigate any complaint that has even marginal validity.” 84 ISBA Journal 452 (September 1996). Usually the Respondent is asked to write a response to the complaint. This response is known as the 14-Day Letter because the respondent has 14 days to respond to the allegations. ARDC Rule 53. Attorneys are urged to take a 14-Day Letter very seriously. Rule 8.1 of the Illinois Rules of Professional Conduct requires attorneys to respond to a disciplinary complaint. IRPC 8.1(a)(2). Failure to respond is a rule violation in and of itself and can lead to a default hearing and formal disciplinary charges.

Once received by the ARDC, the response is forwarded to the complainant for review. The complainant has 14 days to review the response. During this time, the ARDC conducts its own investigation. The ARDC has full subpoena power and can subpoena witnesses and records. Id. Eighty to ninety percent of files are closed at this point and remain private and confidential. They are self-expunged after three years. Id.

The ARDC Litigation Division

If the file is not closed, it is referred to the Litigation Division. The Litigation Attorney will perform an independent review of the file. If they do not close the file, the first thing they will do is call the Respondent in for a sworn statement, which is similar to a deposition.

The Litigation Attorney will conduct an additional investigation. If it is determined that there is enough information to substantiate the complaint, it is referred to the Inquiry Board. ARDC Rule 5. If not, the file is closed.

Like the Administrator, the members of the Inquiry Board are appointed by the Commission. www.iardc.org/overview.html. There are three panels in Chicago and one in Springfield. Each panel consists of two lawyers and one layperson, all of whom are volunteers. Id. The Inquiry Panel acts like a Grand Jury. It is their job to decide if there is enough evidence for the filing of a formal complaint. ARDC Rule 102. If there is not, the case is closed. The Inquiry Board votes to proceed in about 70-80% of the investigations. They can close a file with an admonishment, or they can hold a Supreme Court Rule 108 Proceeding. ARDC Rule 102. Supreme Court Rule 108 allows the Inquiry Board to defer proceedings while the attorney complies with Board imposed conditions, such as periodic reports to the ARDC, supervision of one’s practice and education requirements. ARDC Rule 108. This type of probation is disallowed if the charge involves misappropriation of funds, a criminal act, the behavior led to actual prejudice to a client or the attorney has previously been disciplined. ARDC Rule 108.

At the Inquiry Board level all proceedings, results and discipline are private and confidential. If the Inquiry Board decides that a complaint should be filed, it will go to the Hearing Board. Once the complaint is served on the respondent, it becomes formal and public.

The ARDC Hearing Board

The Hearing Board is also made up of a Chairperson, an attorney and a layperson. ARDC Rule 201. They are appointed by the Commission and are volunteers. www.iardc.org/overview.html. The proceedings at the Hearing Board are much like a trial court in a civil case. Id. They are governed by the Illinois Statutes and Supreme Court Rules and are open to the public. Id. The rules of evidence apply. Yamaguchi, 515 N.E.2d at 1237-1238. Although, they may be applied liberally. Id. at 1238. “Since a disciplinary action’s primary purpose is to protect the public from unqualified or unethical practitioners, technicalities will not be invoked either to shield an attorney from discipline or to prevent him from establishing a legitimate defense.” Id. The respondent is served a complaint and must respond within 21 days. ARDC Rule 231. Failure to respond will result in the admittance of all allegations and a default judgment will be entered. ARDC Rule 236. The Chair makes all evidentiary rulings.

The ARDC must prove every allegation by clear and convincing evidence. In re Rosin, 118 Ill.2d 365, 515 N.E.2d 85, 91, 113 Ill.Dec. 276 (Ill. 1987). The Hearing Board hears evidence, makes findings of fact and then, if warranted, recommends discipline. www.iardc.org/overview.html. The Board issues a report and recommendation. This is a concise report outlining the proceedings and making a determination as to whether or not the behavior warrants disciplinary action and, if so, what action is recommended. The case is either settled or either party can file an exception, which goes before the Review Board. www.iardc.org/overview.html. The Hearing Board is considered the fact-finder and, as such, their findings will be given great deference. In re Timpone, 208 Ill.2d 371, 804 N.E.2d 560, 566, 281 Ill.Dec. 595 (Ill. 2004). The Illinois Supreme Court will not disturb the findings of the Hearing Board unless they are contrary to the manifest weight of the evidence. Id.

The Review Board

The Review Board is made up of 9 lawyers. The parties submit briefs and partake in oral arguments. ARDC Rules 302 and 304. The Review Board, much like an Appellate Court, approves, modifies or rejects the findings of the Hearing Board. www.iardc.org/overview.html. The Review Board can remand, dismiss or dispose the case. Id.

If either party is still not satisfied, the objecting party can file with the Illinois Supreme Court where the case may be adjudicated. www.iardc.org/overview.html. The Supreme Court generally avoids hearing disciplinary cases unless it is regarding an area of the law where the Court wants to make a point. Typically, the Court approves the Hearing Board or Review Board. Although, the Court is not bound by those Board’s findings as those opinions are advisory. Timpone, 804 N.E.2d 560 at 566. The Supreme Court has the ultimate responsibility for determining the appropriate discipline. Id.

Attorney Discipline

If an attorney is found to have violated the Illinois Rules of Professional responsibility, discipline will be imposed. The types of discipline are set forth in Ill. S. Ct. Rule 770 and include: reprimand by the court, the Review Board or a hearing panel, censure, probation, suspension for a specified time, suspension until further order of the court, disbarment on consent or disbarment.

A reprimand is essentially a slap on the hand. A reprimand may be issued by the Hearing Board, the Review Board, or the Supreme Court. The remaining types of discipline must be confirmed by the Supreme Court. www.law.cornell.edu/ethics/il/narr/IL_NARR_0.HTM#0.1:100 citing Ill. S. Ct. Rule 771. When a reprimand is issued by the Hearing Board it becomes part of the Respondent’s permanent record, but, since it does not need to go before the Supreme Court, that case will be resolved quickly.

A censure is similar to a reprimand. It is also a slap on the hand, but it does need to be confirmed by the Supreme Court, so the process takes much longer.

When probation is instituted, the respondent is allowed to continue practicing law so long as he or she follows certain conditions. In re Eckberg, 192 Ill.2d 70, 733 N.E.2d 1244, 1252, 248 Ill.Dec. 246 (Ill. 2000) citing Ill. S. Ct. Rule 758. Probation is permissible if the attorney is capable of performing legal services, is unlikely to hurt the public during his rehabilitation, the imposed conditions can be supervised, the disability is temporary or minor and the attorney is not guilt of acts that warrant disbarment. Ill. S. Ct. Rule 772.

Rule 758(c) gives the court the authority to “impose reasonable conditions” on an attorney’s practice if circumstances warrant. Ill. S. Ct. Rule 758.(c). Where the respondent has practiced law without complaint for over 30 years and no client was harmed while he or she was incapacitated, the court will not impose conditions on his or her continued practice of law. Eckberg, 733 N.E.2d 1244 at 1253. Probationary conditions can be imposed with other forms of discipline. See In re Smith, 168 Ill.2d 269, 560 N.E.2d 896, 907, 213 Ill.Dec. 550 (Ill. 1995). (attorney suspended for 17 months with a stay of 12 months if he or she successfully met court imposed probationary conditions).

A suspension prevents an attorney from practicing law for a specific period of time. It can be as short as one month or as long as several years. Id. Where there is a pattern of neglect, suspension will be imposed. Smith, 560 N.E.2d at 908.

Under Supreme Court Rule 76, if the suspension is for 6 months or longer, the respondent must remove any indicia that he or she is a practicing lawyer, law clerk, or legal assistant from his or her practice, notify all of his or her clients and withdraw from every case. Ill. S. Ct. Rule 764(b) and (c). It is not clear what an attorney who is suspended for less than 6 months, may do with regards to the practice of law. Howard, 721 N.E.2d at 1135. When determining whether a suspended attorney is partaking in the unauthorized practice of law, the court looks to the character of the attorney’s actions. Id. If the actions require legal discretion, knowledge and skill, they will be deemed the practice of law. Id. at 1134. “The practice of law encompasses not only court appearances, but also services rendered out of court and includes the giving of any advice or rendering any service requiring the use of legal knowledge.” Id.

Another type of suspension is a Suspension Until Further Order or Suspension UFO. After disbarment, this is the most severe sanction the court can impose. Timpone, 804 N.E.2d at 570. When an attorney is suspended UFO, he or she may seek reinstatement only after the period of suspension has passed. Id. at 571. To be reinstated the attorney must file a petition seeking a reinstatement and needs a court order to be allowed to practice again. Id. citing Ill. S. Ct. Rule 767.

Disbarment

The most severe sanction the court can impose is disbarment. Disbarment prevents the attorney from any future practice of law. It can be imposed by the court or instituted on consent. For disbarment on consent, an attorney petitions to have his or her name be stricken from the roll of practicing attorneys. Ill. S. Ct. Rule 762. Once the date of disbarment occurs, there can be no indicia that the respondent is practicing law. He must refrain from doing any type of legal work; even acting as a paralegal is prohibited. Id. “Disbarment is the utter destruction of an attorney’s professional life, his character and his livelihood, and therefore a court should use disbarment in moderation.” Yamaguchi, 515 N.E.2d at 1240 “…where corrupt motives and moral turpitude are not clearly shown, the proper punishment is suspension rather than disbarment.” Howard, 721 N.E.2d at 1136. Disbarment will be deemed “not only appropriate, but essential” where there is a great deal of serious misconduct, a lack of mitigating factors, and the respondent does not show remorse. Lewis, 562 N.E.2d at 214. An attorney can attempt to seek reinstatement after five years, unless he or she was disbarred on consent, and then he or she can seek reinstatement in three years. Ill. S. Ct. Rule 767. Although, reinstatement petitions are usually unsuccessful.

“In determining the appropriate discipline, we bear in mind that, although fairness requires a reasonable degree of consistency and predictability, each disciplinary matter is unique and must be decided on its own facts.” Yamaguchi, 515 N.E.2d at 1239. Mitigating circumstances will be considered. Id. at 1240. For example, the courts may look to the attorney’s service to others, including volunteer work, representation of indigent clients pro bono, and provision of free lectures to local law schools. In re Howard, 188 Ill.2d 423, 721 N.E.2d 1126, 1132, 242 Ill. Dec. 595 (Ill. 1999). The court may also consider whether the attorney made full restitution to the client where appropriate. Id. at 1134. Additionally, the Court may take into account the attorney’s degree of cooperation with the disciplinary process and his expression of remorse. Id at.1136. Additional mitigating factors include: whether this offense is the first action alleging dishonesty, whether the respondent profited or attempted to profit, and whether harm was intended or resulted from the respondent’s actions. Yamaguchi, 515 N.E.2d at 1240. See also Vrdolyak, 560 N.E.2d at 848 (“The motive or intent of the attorney is not relevant in determining whether the attorney violated the Code of Professional Responsibility, but may properly be considered as a mitigating factor in determining the degree of discipline”). The court also looks to the length of time the respondent has practiced and the testimony of character witnesses. Lewis, 562 N.E.2d at 212. The court will not find the fact that other attorneys engage in similar conduct as a mitigating factor. Id. at 213.

Goal Is Protection Of The Public

When determining the proper discipline, the court’s “goal is not to punish the attorney but rather to protect the public from incompetent or unscrupulous attorneys, to maintain the integrity of the profession and to protect the administration of justice from reproach.” Howard, 721 N.E.2d at 1132. The question is “whether the attorney is a proper person to be permitted to practice his profession.” In re Smith, 168 Ill.2d 269, 560 N.E.2d 896, 908, 213 Ill.Dec. 550 (Ill. 1995).