Ethics and Attorneys
The concept of lawyers and ethics may cause some to snicker – who hasn’t heard some joke about an unscrupulous lawyer. Sadly, some of those jokes may be based in fact. But, thankfully, many of these jokes are based on fiction alone and the fact that most people are unaware of the ethical rules and procedures that govern Illinois lawyers.
In Illinois lawyers are governed by Supreme Court edicts called the Rules of Professional Conduct. These rules govern virtually all aspects of the practice of law. Areas of frequent concern relate to “conflict of interest,” confidentiality, safekeeping of property, honesty, and diligence.
Conflict of interest relates to the fact that, in general, a lawyer (a) should not represent a client if the representation is adverse to another client and (b) should not represent a client if that representation will be limited by duties to another client or person. In certain instances some conflicts can be waived by a client who has been advised of the consequences. An example of this might be when one lawyer represents multiple beneficiaries of an estate.
Confidentiality means that a lawyer can’t use or reveal a client’s confidences or secrets except under certain circumstances – such as to prevent the client from committing a crime or other act that would result in death or serious injury.
Safekeeping of property, as one might think, means that a lawyer can’t use a client’s property (money, for example) for the lawyer’s use. But, it means more than that – it includes the duty to properly segregate client funds separate from the lawyer’s funds. For this reason, lawyers must have a “trust fund” and must properly account for those funds. Unfortunately, it seems that many ethical complaints relate to the failure to properly hold and account for a client’s property.
Other rules, in general, provide that lawyers can’t
· Knowingly mislead or lie to a client or a court;
· Settle, file, or dismiss a case without the client’s permission;
· Repeatedly neglect a client’s legal problems after the lawyer has agreed to represent the client.
Of course the rules are much more comprehensive and wide-ranging than this, and in certain instances can appear to be complicated. For this reason, the Supreme Court has set up the Attorney Registration and Disciplinary Commission (the “ARDC”). The ARDC enforces the Rules and disciplines lawyers. Toward the end, the ARDC has an “Ethics Inquiry Program” which the public can call to seek guidance on any issue of legal ethics. The Program can be reached at (800) 826-8625. Its stated goal is to aid “the public in understanding the obligations that lawyers owe to the courts, clients and the profession.”
The ARDC should also be contacted if a client thinks that his or her lawyer has acted unethically. (For that matter, lawyers are also required to do the same anytime they learn of a fellow lawyer’s breach of any ethical duty.) Requests to investigate a lawyer must be made in writing. To simplify the process, a form is available from https://www.iardc.org/htr_reqforinvestig_form.html. Other information regarding the process and lawyer’s ethics can be found at https://www.iardc.org.
The ARDC website also contains other useful information regarding lawyers. There is a searchable database that indicates whether a lawyer has been disciplined in the past or is currently under investigation. It also states whether a lawyer carries malpractice insurance.
For those who have been wronged by a lawyer’s breach of an ethical duty, the Supreme Court has established the Client Protection Program. The “Program reimburses clients who cannot get reimbursement from the lawyers who caused their losses, or from other sources such as insurance.” It’s funded by annual registration fees paid by Illinois lawyers and it does not receive any tax money. The Program may reimburse losses up to a maximum of $75,000 for each loss, and payouts arising from the conduct of any one lawyer can’t exceed $750,000. Among other things, the Program does not cover claims that (a) result from negligence or malpractice as opposed to intentional dishonesty, (b) involve fee disputes, and (c) involved lost interest, profits or consequential damages. Information regarding the Program can be found at the ARDC website.
Thankfully, instances of actual misconduct are rare. Of the approximately 86,000 lawyers registered to practice law in Illinois, on average 5% are subject to a disciplinary grievance. However, and of significance, only 4% of those grievances result in the filing of formal charges because the investigation does not produce evidence of misconduct. ARDC statistics show that the top five areas of practice most likely to lead to a grievance are criminal law, domestic relations, tort, real estate, and probate.
The ARDC reports that: “Every year the most common grievances made against lawyers involve problems with the client-attorney relationship. Neglect complaints coupled with complaints of lawyers failing to communicate with clients as to the status of their cause typically account for at least one-third of the investigative caseload. The other most common concerns include fraudulent or dishonest activity by lawyers, incompetence, excessive fees, and improper handling of client or third party funds.”
Despite the relatively small numbers of actual ethics violations, the Illinois Supreme Court has recently required lawyers to take annual continuing legal education, which includes a required legal ethics component.
In any event, it’s important for the public to know that there is a code of ethics that lawyers must adhere to, that there is a body charged with investigating ethics complaints, that the Supreme Court metes out discipline to those found guilty of ethics violations, and that there is a process in place to assist clients who may need guidance regarding possible ethical breaches.