The Journal of The DuPage County Bar Association

Back Issues > Vol. 10 (1997-98)

The Disciplinary Process of the ARDC
By Mary Robinson

Since 1973, administrative responsibility for the registration and discipline of Illinois lawyers has been delegated by the Illinois Supreme Court to the Attorney Registration and Disciplinary Commission, composed of seven members appointed by the Court. Ill.S.Ct.Rule 751. Four members of the Commission must be members of the Illinois bar, and the other three members must be nonlawyers. The Commissioners serve without compensation for three-year terms. The Commission acts as a board of directors for the disciplinary agency, setting general policy and overseeing its implementation.

With the approval of the Supreme Court, the Commission appoints an Administrator to serve as the principal executive officer of the agency. The Administrator has a staff of more than 110 employees, including about 35 lawyers, who oversee registration, conduct investigations, prosecute disciplinary cases, support volunteer board members, and produce publications and programs related to ethics and discipline.

Registration practices and disciplinary proceedings are governed by rules adopted by the Illinois Supreme Court. Ill.S.Ct.Rule 751 et seq. The Court has delegated to the Commission authority to make rules for disciplinary proceedings that are not inconsistent with the rules of the Court. Other Commission duties include the appointment of the members of the Inquiry Board, the Hearing Board, and the Client Protection Panel. Ill.S.Ct.Rule 751. These volunteer Board members represent a broad cross section of the community and legal profession. Lawyer members come from sole practices, law firms, government and academia. Lay members come from every walk of life: brick masons, teachers and businesspeople.

The Adjudicative Process

Inquiry Board

When the Administrator’s investigation produces evidence of misconduct or an incapacitating condition, the matter may be referred to the Inquiry Board, composed of lawyers and nonlawyers appointed by the Commission who serve without compensation in panels of three (two lawyers and one nonlawyer). Ill.S.Ct.Rule 753; Commission Rule 101. The Inquiry Board also has subpoena power and may conduct or initiate its own investigation into any matter. Ill.S.Ct.Rules 753(a)(2), 754; Commission Rule 102.

The Inquiry Board does not determine the merits of a charge or conduct adversary hearings and is not required to hear the testimony of witnesses. Commission Rule 102. For all matters before it, the Inquiry Board is to determine whether there is sufficient evidence for the filing of a complaint charging misconduct or a petition alleging incapacity with the Hearing Board, or if the investigation should be dismissed or closed. Ill.S.Ct.Rule 753(a)(3); Commission Rule 102. The majority of a panel constitutes a quorum, and the concurrence of a majority is necessary to a decision. Ill.S.Ct.Rule 753(a)(4).

In matters where the evidence shows minor misconduct and where the lawyer agrees to remedy any harm that was incurred by a client, the Inquiry Board may defer proceedings for up to a year and allow the attorney to continue practice under conditions, rather than vote a complaint. If the lawyer abides by all conditions during the deferral period, the matter will be dismissed and no public discipline will be sought. Commission Rule 108.

Hearing Board

Once the Inquiry Board has voted to approve the filing of formal charges, the Administrator files a complaint with the Clerk of the Commission, and the matter proceeds before the Hearing Board. Ill.S.Ct.Rule 753(b). The Hearing Board consists of lawyers and, since 1991, nonlawyers appointed by the Commission in a ratio of two lawyers to one nonlawyer. Ill.S.Ct.Rule 753(c). The Board sits in panels of three, with one of the lawyer members designated as Chair. Ill.S.Ct.Rule 753(c)(2). In contested proceedings, the panels hear evidence, make findings of fact, and recommend appropriate discipline. Ill.S.Ct.Rule 753(c)(3). When a consent disposition is proposed while a case pends before the Hearing Board, the Hearing panel reviews the proposed disposition prior to submission of the agreement to the Supreme Court. Ill.S.Ct.Rule 762(b)(1)(b). Proceedings before the Hearing Board in disciplinary cases are open to the public once a complaint has been served on the respondent lawyer. Ill.S.Ct.Rule 766(a)(3). Discovery practice before the Hearing Board is governed by the Illinois statutes and Supreme Court rules that govern civil practice, as modified by rules adopted by the Commission. Ill.S.Ct.Rule 753(c)(5).

The Hearing Board operates under the rules of evidence that govern Illinois civil proceedings. Commission Rule 273. Allegations of misconduct must be proved by clear and convincing evidence. Ill.S.Ct.Rule 753(c)(6). The majority of a Hearing Board panel constitutes a quorum, and the concurrence of a majority is necessary to a decision. Ill.S.Ct.Rule 753(c)(2). It is the duty of a respondent to appear at hearing if his appearance is requested. Failure to appear without good cause may be considered as a separate ground for discipline. Ill.S.Ct.Rule 753(f).

After considering the evidence, arguments and any filings pursuant to Commission Rule 277, the Hearing Board files with the Clerk of the Commission a written report making findings of fact and recommending appropriate discipline if misconduct has been found. The Hearing Board may itself administer a reprimand; all other discipline may be imposed only by the Supreme Court. Ill.S.Ct.Rule 771.

Review Board

The Administrator or the respondent may take issue with the recommendation of a Hearing panel in a disciplinary or disability case by filing a notice of exceptions with the Clerk of the Commission within 21 days of the filing of the Hearing Board report. Ill.S.Ct.Rule 753(d)(2), 758(b), 759(b). The party that first files a notice of exceptions is deemed to be the appellant; the other party need not file a notice of exceptions to assert additional error and, instead, may raise any such additional error in his brief. Commission Rule 301(b). Requirements for the form and content of briefs are essentially the same as in civil appeals. Commission Rule 302(f); compare Ill.S.Ct.Rule 341.

The Review Board is composed of nine lawyer members appointed by the Supreme Court. Review Board members serve three-year terms, or until a successor is appointed, and no member shall be appointed for more than three consecutive three-year terms. Ill.S.Ct.Rule 753(d)(1). One member of the Board is designated by the Supreme Court as Chairperson. The Review Board sits in panels of three, with the most senior member presiding. Ill.S.Ct.Rule 753(d)(1).

The Review Board may hear oral argument where requested by the parties, but no party may argue unless the party has filed a brief in accord with the rules. Commission Rule 304. After considering the briefs and argument, if allowed, the Review Board files a written report with the Clerk of the Commission. Commission Rule 311. The report must address the issues raised by the parties, but need not address any portion of the Hearing Board report with which the parties have not taken issue. Commission Rule 311. The Review Board may approve the findings of the Hearing Board, reject or modify findings which it determines are against the manifest weight of the evidence, make such additional findings as it determines are established by clear and convincing evidence, remand or dismiss the proceedings, and/or approve, reject or modify the Hearing Board’s recommendation of discipline. Ill.S.Ct.Rule 753(d)(3). Where discipline is recommended, the Review Board may itself impose a reprimand or recommend that any other discipline be imposed by the Court. Ill.S.Ct.Rule 771; Commission Rule 312

.Proceedings Before the Supreme Court in Discipline and Disability Cases

Either party may seek leave to except to the report and recommendation of the Review Board by filing a petition for leave to file exceptions with the Clerk of the Supreme Court within 35 days of service of the report on the party. Ill.S.Ct.Rule 753(e)(1). The petition must include: a request for leave to file exceptions; a statement of the date upon which the report of the Review Board was filed; a statement of the points relied upon for rejection of the Review Board’s report; a fair and accurate statement of the facts with appropriate references to the record; a short argument, including appropriate authorities, stating why review by the Supreme Court is warranted and why the Review Board’s report should be rejected; copies of the reports of the Hearing Board and Review Board; and proposed exceptions. Ill.S.Ct.Rule 753(e)(3). The opposing party need not, but may, file an answer to the petition within 14 days of the due date of the petition or any extended time allowed by the Court. The answer should conform generally to the form for the petition. Ill.S.Ct.Rule 753(e)(4).

If the Court determines to grant the petition, it may decide to consider the case after full briefing and oral argument, or it may immediately order a remand or enter a final order as recommended by the Review Board or as otherwise deemed appropriate by the Court without further briefing or argument by the parties. Ill.S.Ct.Rule 753(e)(5)(a). When the Court agrees to consider a case with full briefs and argument, the petition for leave to file exceptions will stand as the brief of the appellant and remaining briefs must be filed in accord with the rules governing appeals before the Supreme Court. Ill.S.Ct.Rule 753(e)(5)(a)(iii). If the Court denies the petition for leave to file exceptions, it may enter a final order as recommended by the Review Board or as otherwise deemed appropriate by the Court or remand the matter to the Hearing Board or Review Board. Ill.S.Ct.Rule 753(e)(5)(b).

If neither party files exceptions to a report of the Hearing Board or seeks leave to except to a report of the Review Board which recommends action by the Court, the recommendation of the Hearing Board or the Review Board is submitted to the Supreme Court by the Clerk of the Commission as an agreed matter, and within 21 days of the Clerk providing notice that the matter has been submitted, the Administrator must file with the Supreme Court a motion to approve and confirm the report of the Hearing Board or Review Board. Ill.S.Ct.Rules 753(d)(2), 753 (e)(6). No answer to the motion may be filed by the respondent unless ordered by the Court. Ill.S.Ct.Rule 753(d)(2), 753(e)(6). Upon consideration of a motion to approve and confirm, the Court may enter a final order of discipline as recommended by the Hearing Board or Review Board, or as otherwise deemed appropriate by the Court; order briefs and argument; or remand the matter to the Hearing Board or Review Board with directions. Ill.S.Ct.Rule 753(d)(2), 753(e)(6).

The mandate of the Supreme Court which renders the order of discipline final and effective will issue immediately in cases which the Court resolves by order allowing or denying a motion or petition, without full briefing and oral argument. In cases where the Court has accepted briefs and oral argument and resolves the case by full opinion, the mandate will issue once 21 days have passed if neither party has first filed a petition for rehearing, or 7 days after the entry of an order denying rehearing if a petition was filed. Ill.S.Ct.Rule 368.

Types of Discipline

Discipline which may be imposed includes: disbarment, suspension for a specified period (where a lawyer may resume practice at the end of that period absent further order to the contrary), suspension until further order of the court (requiring reinstatement proceedings either at the conclusion of a specified period or without a period specified), probation in conjunction with either type of suspension, censure, and reprimand. Ill.S.Ct.Rule 771. A reprimand may be administered by the Hearing Board, the Review Board, or the Supreme Court. All other forms of discipline may be ordered only by the Supreme Court. Ill.S.Ct.Rule 771.

Mary Robinson
is the Administrator of the Illinois Attorney Registration and Disciplinary Commission. She has served as Administrator since 1992, having previously practiced criminal, family, and appellate law in the collar counties in northern Illinois. She received her Undergraduate Degree in 1971 from the University of Illinois-Urbana and her Law Degree in 1974 from the University of Southern California.

DCBA Brief