Jun 30, 2012
Illinois has increased its focus on attorney professionalism and ethics during the past several years. This has manifested itself in a new Illinois Professionalism CLE requirement and closer scrutiny of attorney conduct. For the past several years, ApexCLE has taken note of the trends in attorney ethics and professionalism and provided its State of The Practice publication to mark these trends.
There are now 82,380 registered Illinois lawyers, an increase of 1.5% from last year. During 2007, the ARDC docketed 5,988, about a 3.2% increase from 2006 where the ARDC docketed 5,801 investigations, about a 4.6% decrease from 2005 as reviewed in the ApexJurist 2007 State of The Practice.
Those 5,988 investigations involved charges against 4,190 different attorneys, representing about 5% of all registered attorneys. About 918 or 22% of the 4,190 attorneys were the subject of more than one investigation docketed in 2006.
Interestingly, we attorneys do not seem to worry too much about malpractice. Only 54.2% of the reporting attorneys carry malpractice. Now, to be fair, it is not possible to determine the number of attorneys that are not engaged in a practice with liability exposure such as corporate counsel, professors, government employment, or non-practicing activities.
With multiple charges of misconduct sometimes brought against one attorney, there were approximately 8,504 charges brought, and investigated, against the 4,190 attorneys. The top six classifications of investigations accounted for the vast majority, about 75% of all investigations. The neglect of a matter accounted for 2,712, about 32%, of the charges. Next in line was the failure to communicate with a client representing 1,207 (14%) of the investigations. Fraudulent activity comprised 1,027 (12%) of the investigations and excessive or improper fees rounded out the top four with 854 (10%) of the investigations. Finally, at about 4% each, were improper trial conduct and improper management of client funds with 390 and 360 respectively.
The area of practice has a clear link to the number of investigations. The top areas of practice most likely to lead to a grievance of attorney misconduct are criminal law, domestic relations, tort, and real estate. The good news is that the number of investigations that result in actual filings with the Illinois Supreme Court is small. There were 1,508 investigations closed after just the initial review. Following an investigation, an additional 4,117 matters were closed. This resulted in only 33 filings with the Illinois Supreme Court down from 48 last year and 279 complaints or impairment petitions voted. Putting this in perspective, of the 82,380 registered attorneys, less than 0.005% had action beyond an investigation taken by the ARDC and only 24 disbarred and 60 suspended. The good news for any attorney receiving an investigation letter is that 80% of the investigations are closed in only 20 days.
The Twenty Most Common Ethical Violations
According to the 2007 ARDC annual report, the twenty most common ethical violations include:
Each of these violations is due to the failure of an attorney to live up to his or her professional and ethical duty and a violation of the Rules of Professional Conduct.
The Himmel Duty: 20 Years Later
One of the most significant Illinois Supreme Court lawyer disciplinary decisions marks its 20th anniversary in 2008. On September 22, 1988, the Court filed an opinion in In re Himmel, 125 Ill.2d 531, 127 Ill.Dec. 708, 533 N.E.2d 790 (Ill. 1988). Rehearing was denied the following January. The case established that an attorney's failure to report his unprivileged knowledge of another attorney’s serious wrongdoing warranted a suspension from the practice of law. The Attorney-Respondent was prosecuted under old Rule 1-103 of the Illinois Code of Professional Responsibility. That reporting provision was superseded in 1990 by Rule 8.3 of the Illinois Rules of Professional Conduct, a substantively identical ethics standard.
The facts that led to the landmark case involved lawyer John R. Casey, who was hired by a client to represent her in a personal injury claim. Casey negotiated a $35,000 settlement on her behalf. Pursuant to an agreement between the client and Casey, one-third of any monies received would be paid to Casey as his attorney’s fee. Casey eventually received a $35,000 settlement check, endorsed it, and deposited the check into his client trust fund account. Subsequently, he converted the funds. The client unsuccessfully attempted to collect her $23,233.34 share of the proceeds. Later, she retained Mr. Himmel to collect her money and agreed to pay him one-third of any funds recovered above $23,233.34. Himmel investigated the matter and discovered that Casey had misappropriated the settlement funds. He drafted an agreement in which Casey would pay the client $75,000 in settlement of any claim she might have against Casey for the misappropriated funds. By the terms of the agreement, the client promised not to initiate any criminal, civil, or attorney disciplinary action against Casey. Himmel stood to gain $17,000 or more if Casey honored the agreement. Later, Himmel filed suit against Casey for breaching the agreement and a $100,000 judgment was entered against Casey. If Casey had satisfied the judgment, Himmel’s share would have been $25,588. In April 1985, the ARDC Administrator filed a petition for interim suspension because Casey had converted client funds in matters unrelated to Himmel’s client’s claim. Casey misappropriated those funds after Himmel’s duty to report Casey had arisen. Casey was subsequently disbarred on consent. In sanctioning Himmel, the Court noted: “Perhaps some members of the public would have been spared from Casey's misconduct had respondent reported the information as soon as he knew of Casey's conversions of client funds. We are particularly disturbed by the fact that respondent chose to draft a settlement agreement with Casey rather than report his misconduct.”
The Court’s decision was not without precedent, as it had previously considered the reporting requirement in the context of a lawyer reinstatement proceeding. During May Term 1988, the Court released an opinion in In re Anglin, 122 Ill.2d 531, 120 Ill.Dec. 520, 524 N.E.2d 550 (Ill. 1988). There, a disbarred attorney refused to answer questions during the reinstatement proceeding about the involvement of other persons in the criminal activity that had led to the initial disciplinary sanction. The Court ruled that the petitioner’s code of silence indicated that he was not fully rehabilitated or fit to practice law.
Since the issuance of the Himmel opinion, the Illinois ARDC has received more than 10,000 reports filed by lawyers and judges against members of the Illinois Bar. An average of 500 reports has been made each year. Although investigations opened as a result of attorney reporting are usually concluded without the filing of formal disciplinary charges, more than 17% of the formal disciplinary caseload over the past sixteen years, the period in which such data was tabulated, included an average of one charge generated as a result of a lawyer or judge filing an attorney report. In some years, one out of every five formal complaints was the product of an attorney report; in 2007, however, that number jumped to almost 29% of all formal filings.
The Supreme Court has sanctioned a number of lawyers since 1988 for violating the reporting obligation. Two examples include In re Daley, M.R. 17023, 98 SH 2 (Ill. Nov. 27, 2000) (attorney + Reporting statistics were not kept until October 4, 1988. * The method of tracking attorney reports changed in these years, and as a result a number of attorney reports were not recorded. Therefore, the number of attorney reports is likely underreported for 2000 and 2001. 26 2007 Annual Report suspended nine months, in part for failing to report another lawyer’s use of a court order to obstruct a federal investigation); and In re Arnold, M.R. 10462, 93 SH 436 (Ill. Nov. 30, 1994) (attorney suspended one year, in part, for failing to report judicial misconduct).
In Skolnick v. Altheimer & Gray, 191 Ill.2d 214, 246 Ill.Dec. 324, 730 N.E.2d 4 (Ill. 2000), the Supreme Court had the opportunity to discuss the reporting obligation in a non-disciplinary case. There, the necessary degree of knowledge that triggers a Rule 8.3 reporting obligation was defined: a lawyer must have “more than a mere suspicion” of another lawyer’s misconduct, but such knowledge need not amount to “absolute certainty.” Further, the Court ruled that misconduct reports in Illinois must be made to the ARDC, not to a trial court.
The Supreme Court has dealt with a widely held concern that a lawyer could threaten others with filing an attorney report to gain an advantage in litigation or negotiation. When adopting a new ethics code in 1990, it adopted Rule 1.2(e) of the Illinois Rules of Professional Conduct. Rule 1.2(e) provides that a lawyer shall not present, participate in presenting, or threaten to present criminal charges or professional disciplinary actions to obtain an advantage in a civil matter. The Court recently sanctioned a lawyer who attempted to use the threat to report an ethics violation to secure an advantage in a civil matter. In re Soble, M.R. 21558, 07 RC 1502 (Ill. May 18, 2007). Finally, the Court has ruled that any report filed with the ARDC must be truthful. In re Olivero, M.R. 17228, 98 SH 54 (Ill. March 22, 2001) (attorney suspended six months for filing a false disciplinary grievance against another attorney and then lying about his conduct, under oath, to the disciplinary authority).
Finally, questions about the reporting rule continue to be answered by the Commission’s Ethics Inquiry Program. Over the course of 2006 and 2007, 6,500 Illinois attorneys contacted the Program, and 568 of those callers inquired about the Himmel obligation.
End of ARDC excerpt.
Bibliography: ARDC 2007 Annual Report. www.iardc.org/2007%20Annual%20Report.pdf