Illinois Legal Ethics
I. CLIENT-LAWYER RELATIONSHIP
1.1:100 Comparative Analysis of Illinois Rule
¥ Primary Illinois References:
IL Rule 1.1
¥ Background References: ABA
Model Rule 1.1, Other Jurisdictions
¥ Commentary:
Illinois, in its Rule 1.1(a) adopts the language of ABA MR 1.1; but IRPCÊ1.1(b) and (c) are added.
IRPCÊ1.1(b) states:
A lawyer shall not represent a client in a legal matter in which the lawyer knows or reasonably should know that the lawyer is not competent to provide representation, without the association of another lawyer who is competent to provide such representation.
IRPCÊ1.1(b) is substantially equivalent to the Illinois CodeÊ6-101(a)(1) which read:
[A lawyer shall not:]
(2)Êhandle a legal matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it.
IRPCÊ1.1(c) states:
After accepting employment on behalf of a client, a lawyer shall not thereafter delegate to another lawyer in the lawyer's firm the responsibility for performing or completing that employment, without the client's consent.
IRPCÊ1.1(c) is substantially equivalent to the Illinois CodeÊ2-109(b), which provision was absent from the ABA Code.
1.1:101 Model Rule Comparison
IRPC Rule 1.1(a) is identical to MR 1.1; but IRPCÊ1.1(b) and (c) are not in the MR Rule.
1.1:102 Model Code Comparison
The ABA Code contained the following language in RuleÊ6-101(A):
[A lawyer shall not]
(2)Êhandle a legal matter without preparation adequate in the circumstances; or
(3) neglect a legal matter entrusted to him.
1.1:200 Disciplinary Standard of Competence
¥ Primary Illinois References:
IL Rule 1.1
¥ Background References: ABA
Model Rule 1.1, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 31:201, ALI-LGL ¤ 28, Wolfram
¤ 5.1
The IRPC, in Rule 1.1 (Competence), contain more detailed mandates that the ABA text, and raise, at the very start of the Rules, the question of the Rules as sources of substantive law, particularly in actions for malpractice. Illinois, in this regard, has not adopted the ABA disavowal of substantive effect, contained in the "Scope" section of the ABA text, and reading as follows:
Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. (emphasis supplied)
The ABA "Scope" just quoted was deliberately omitted from the IRPC, as it would render language such as that in MRÊ1.1 virtually meaningless, if the aggrieved client must look for other support in the event of a professional failure. The status of the Illinois Code, as a portion of substantive law, and hence the rules which replaced the Illinois Code, was clarified, at least in part, by the Illinois Supreme Court in In re Vrdolyak, 560 N.E.2d 840 (Ill. 1990). In this case the Court stated: "As an exercise of this Court's inherent power over the bar and the rules of court, the Code operates with the force of law."
Vrdolyak, however, was not a malpractice case; it involved a Chicago alderman who, as a lawyer, represented plaintiffs in employment law cases against the City: the Court held this to be an impermissible conflict of interest, and censured him.
Since Vrdolyak explicitly rejected prior rulings on the impact of ethical violations, the precise state of the IRPC as a body of law which the clientÑor any other partyÑhas standing to invoke is still, in many areas, uncertain.
However, the past learning, stating that the rules (of
the Illinois Code or IRPC) are only suggestive and advisory, appears to have
been rejected. Indeed, in Mayol v. Summers, Watson & Kimpel,
585 N.E.2d 1176 (Ill. App. 4
Illinois Attorney Registration and Disciplinary Commission Hearing Board, Review Board, and Illinois Supreme Court opinions showing the overlap between RuleÊ1.1, 1.3, and 3.2 include: In re Carlson, 93ÊCHÊ643; In re Hourigan, 93ÊCHÊ446; In re Lawrence, 95ÊCHÊ645.
1.1:300 Malpractice Liability
¥ Primary Illinois References:
IL Rule 1.1
¥ Background References: ABA
Model Rule 1.1, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 301:1, ALI-LGL ¤ 71-76 , Wolfram
¤ 5.6
1.1:310 Relevance of Ethics Codes in Malpractice Actions
The IRPC, although based on the MR text, omit entirely
the prefatory section of the MR text, entitled
"Scope", and by that omission, contain no language disavowing the impact
of the IRPC on issues of civil liability. The IRPC do not, however, explicitly
assert their authority over the applicability of its Rules to such questions,
and thereby leave the issue for determination by the courts as issues arise.
To date no judicial determination has affirmed the specific application of the
Rules to civil liability, and there is case law asserting an older doctrine
holding that the Illinois Code was irrelevant to such problems. Nagy
v. Beckley, 578 N.E.2d 1134 (Ill. App. 1
As an exercise of this court's inherent power over the bar and as rules of court, the Code operates with the force of law. Accordingly, the Code, as a binding body of disciplinary rules, has, sub silentio, overruled prior judicial decisions which conflict with its mandates and prescriptions.
The quoted language is a rejection of the applicability of a prior Supreme Court case, In re Becker, 158 N.E.2d 753 (Ill. 1959). In rejecting Becker as a guide, the Court traced the history of Illinois ethics from the stage when ".Ê.Ê.Êthis court had not adopted any comprehensive scheme for regulating attorney conduct." The Court emphasized, by the above quoted language, that the Code was a decisive step, casting aside any prior decisions inconsistent with it. Since Vrdolyak, the Court has had no opportunity to enlarge or clarify the scope of its holding: but it would appear that the extreme statement of the ABA "Scope" section would be inconsistent.
1.1:320 Duty to Client
Illinois does not differ from other jurisdictions in the basic definitions of the lawyerÕs duties to the client of care and skill, as set forth hereinafter. It should be noted however that the IRPC do not include any comment or annotations (except for IRPC 8.5) and hence do not include the statement in the MR Comment to MR 1.1 ÒA newly admitted lawyer can be as competent as a practitioner with long experience.Ó
Illinois law distinguishes between negligence and mere
errors of judgment. The question of whether an attorney has exercised a reasonable
degree of care and skill is one of fact and in Illinois the attorneyÕs conduct
will be measured through expert testimony. However, in the case of gross negligence,
such as permitting a statute of limitations to run, expert testimony is not
required. Schmidt v. Hinshaw, Culbertson, Moelmann, Hoban
& Fuller, 394 N.E.2d 559 (Ill. App. 1
1.1:330 Standard of Care
Illinois treats the standard of care much as that set forth in the Restatement of the Law Governing Lawyers (Sec. 74 Tentative Draft No. 8) ÒA lawyer who owes a duty of care must exercise the competence and diligence normally exercised by lawyers in similar circumstances, unless the lawyer represents that the lawyer will exercise greater competence or diligence.Ó
The Òcompetence and diligenceÓ referred to above is necessarily
defined principally through actions for attorney malpractice. Although disciplinary
actions against an attorney with regard to this issue are conceivable, none
have been recorded in Illinois. The issue is further rendered indefinite because
of the need in most cases for expert testimony on the question. As stated in
House v. Maddox, 360 N.E.2d 580 (Ill App. 1
1.1:335 Requirement of Expert Testimony
[The discussion of this topic has not yet been written.]
1.1:340 Causation and Damages
A lawyer is liable only for injury of which the lawyerÕs
breach of a duty of due care was a legal cause, as determined under the generally
applicable principles of causation and damages. Restatement
of the Law: The Law Governing Lawyers (Sec. 75 Tentative Draft No. 8).
It should be noted again that although some Illinois cases repudiate the notion
that violation of the rules of conduct do not give rise to civil liability.
For example, it has been held that the representation of conflicting interests
does not constitute a ground for recovery in malpractice. See Schmidt
v. Hinshaw, Culbertson, Moelmann, Hoban & Fuller, 394 N.E.2d 559 (Ill. App.
1
1.1:350 Waiver of Prospective Liability [see 1.8:910]
An agreement prospectively limiting a lawyerÕs liability to a client is unenforceable.
1.1:360 Settlement of Client's Malpractice Claim [see 1.8:920]
An agreement purporting to settle a claim by a client or former client against a lawyer is voidable by the client or former client if the client or former client was not adequately informed and was not independently represented, or if the client or former client was subjected to improper pressure by the lawyer.
1.1:370 Defenses to Malpractice Claim
[The discussion of this topic has not yet been written.]
1.1:380 Liability to Client for Breach of Contract, Breach of Fiduciary Duty, and Other Liabilities
[The discussion of this topic has not yet been written.]
1.1:390 Liability When Non-Lawyer Would Be Liable
[The discussion of this topic has not yet been written.]
1.1:400 Liability to Certain Non-Clients
¥ Primary Illinois References:
IL Rule 1.1
¥ Background References: ABA
Model Rule 1.1, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 71:1101, ALI-LGL ¤ 73, Wolfram
¤ 5.6
1.1:410 Duty of Care to Certain Non-Clients
A lawyer is not liable to a non-client:
(1) In addition to other absolute or conditional privileges provided by the law of defamation, a lawyer is absolutely privileged under the law if defamation to publish defamatory matter concerning a non-client in communications preliminary to a reasonably anticipated proceeding before a tribunal, or in the institution or during the course and as a part of such a proceeding, in which the lawyer participates as counsel, if the matter is published to a person who will be involved in the proceeding and has some relation to the proceeding.
(2) A lawyer representing a client in a civil proceeding, or procuring the institution of criminal proceedings by a client, is not liable to a non-client for wrongful use of civil proceedings or for malicious prosecution if the lawyer has probable cause for acting, or if the lawyer acts primarily to help the client obtain a proper adjudication of the clientÕs claim.
(3) A lawyer who advises or assists a client to make or break a contract, to enter or dissolve a legal relationship, or to enter or not enter a contractual relation, is not liable to a non-client for interference with contract or with prospective contractual relations or with a legal relationship, if the lawyer acts to advance the clientÕs objectives without using wrongful means. Restatement of the Law: The Law Governing Lawyers (Sec. 78 Tentative Draft No. 8).
A lawyer may be liable to a third party if he or she wrongfully
releases that party's funds to his or her client. Western
States Ins. Co. v. Louis OliveroÊ& Associates, 670 N.E.2d 333 (Ill. App. 3
In order for a lawyer to be liable for malpractice to a non-client, a duty of care must be established to a non-client by showing that the primary purpose of the attorney/client relationship was to benefit the plaintiff. York v. Stiefel, 458 N.E.2d 488 (Ill. 1983).
This is particularly true where issues arise in the drafting
of a will. Illinois courts have applied the third beneficiary statute to contingent
beneficiaries under a will, but has refused to give standing to the spouses
of such beneficiaries. Jewish Hosp. v. BoatmenÕs NatÕl Bank,
633 N.E.2d 1267 (Ill. App. 5
1.1:420 Reliance on Lawyer's Opinion [see also 2.3:300]
See discussion under 1.1:410, Duty of Care to Certain Non-Clients.
1.1:430 Assisting Unlawful Conduct [see also 1.2:600-1.2:630]
IRPC 1.2(d) provides:
A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but the lawyer may discuss the legal consequences of any proposed course of action with a client and may counsel or assist a client to make a good-faith effort to determine the validity, scope, meaning or application of the law.
In addition to the above strictures, IRPC 8.4(a)(3) and (4) generally prohibit a lawyer from engaging in criminal or dishonest conduct.
1.1:440 Knowledge of Client's Breach of a Fiduciary Duty [see also 1.13:520]
IRPC 1.2(g) states:
A lawyer who knows a client has, in the course of representation, perpetrated a fraud upon a person or tribunal shall promptly call upon the client to rectify the same, and if the client refuses or is unable to do so, the lawyer shall reveal the fraud to the affected person or tribunal, except when the information is protected as a privileged communication.
IRPC 3.3(a) states, in part:
In appearing in a professional capacity before a tribunal, a lawyer shall not:
(2) fail to disclose to a tribunal a material fact known to the lawyer when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
(4) offer evidence the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.
On the other hand, although IRPC 4.1 (Truthfulness in Statements to Others) commands, in 4.1(b), a lawyer to disclose a material fact when necessary to avoid assisting a client fraud, the command is made subject to RuleÊ1.6.
Although IRPC 3.3 contains material not present in MRÊ3.3, the quoted language is identical with the ABA text. IRPC 1.2(g) is not part of MRÊ1.2. IRPC 4.1 is identical with MRÊ4.1.
It has been noted by the ABA in 87-353 and 93-376, that the commands of MRÊ3.3 supersede MRÊ1.6; and the inconsistency between 3.3 and MRÊ4.1 is silently ignored in these two ABA opinionsÑpossibly by reasoning that the "Others" referred to in MR and IRPCÊ4.1 does not refer to a "Tribunal" as described in MRÊ3.3.
In other words, IRPC 1.2(g) and 4.1 limit the commands on the lawyer to make the relevant disclosures to the tribunal, while maintaining the unqualified language of IRPC 3.3 quoted above. The ISBA Committee on Professional Conduct, in 94-24, resolved the conflict between 3.3 and 1.2(g) by applying conventional rules of construction, treating IRPCÊ1.2(g) as a general rule, and the narrower scope of IRPCÊ3.3 as an exception, superseding the general rule in matters before a tribunal. The opinion makes no reference to IRPCÊ4.1. No case law affirms or rejects this interpretation.
1.1:450 Failing to Prevent Death or Bodily Injury
No Illinois appellate court has had to rule on a lawyer's
violation of IRPCÊ1.6(b) which
requires a lawyer "to reveal informationÊ.Ê.Ê. to the extentÊ.Ê.Ê. necessary
to prevent the client from committing an act that would result in death or serious
bodily injury". But in a widely discussed case dealing collaterally with this
issue, Balla v. Gambro, Inc., 584 N.E.2d 104 (Ill. 1991),
the Court refused to award damages for the allegedly wrongful discharge of a
lawyer employed by the defendant, when the lawyer reported the employer's importation
of defective and dangerous medical devices. The Court recognized that the plaintiff
had a duty to report the contemplated event; but it held that the right of a
client to discharge the attorney at any time would be seriously impaired if
a lawyer could retain employment (or impose a substantial cost on the employer
if he or she were terminated), and this right of the client was basic to the
professional relationship. The Court distinguished prior "whistleblower" wrongful
discharge cases, such as Palmateer v. International Harvester,
421 N.E.2d 876 (Ill. 1981), on the ground that no professional relationship
was involved in that case; and referred in contrast to Herbster
v. North American Co., 501 N.E.2d 343 (Ill. App. 2
Balla is discussed in a dialogue by the counsel of record before the Supreme Court in 80 Ill. Bar J. 281 (1992); see also Reynolds, Wrongful Discharge of Employed Counsel, 1 Georgetown J. Legal Ethics 553 (1988).
1.1:500 Defenses and Exceptions to Liability
¥ Primary Illinois References:
IL Rule 1.1
¥ Background References: ABA
Model Rule 1.1, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 301:1001, ALI-LGL ¤¤ 76, 78,
Wolfram ¤ 5.6
1.1:510 Advocate's Defamation Privilege
[The discussion of this topic has not yet been written.]
1.1:520 Wrongful Use of Civil Proceedings; Abuse of Process; False Arrest
[The discussion of this topic has not yet been written.]
1.1:530 Assisting Client to Break a Contract
[The discussion of this topic has not yet been written.]
1.1:600 Vicarious Liability [see 5.1:500]
¥ Primary Illinois References:
IL Rule 1.1
¥ Background References: ABA
Model Rule 1.1, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 91:201, ALI-LGL ¤ 79, Wolfram
¤ 5.6