The Journal of The DuPage County Bar Association

Back Issues > Vol. 10 (1997-98)

ARDC Investigations: A Case Study
By Mary Robinson, Althea Kuller, and William J. Martin

Each year, the ARDC takes in about 6500 complaints against Illinois lawyers. The complaints are screened by an Intake division that determines whether the complaint, read liberally, appears to allege some misconduct by an Illinois lawyer. If it does, the Intake staff will ask that lawyer to respond to the allegations unless the case falls within the small group of matters which, for policy reasons, the Commission has determined not to investigate.1

The request for a response is usually made via letter to the lawyer, accompanied by a copy of the complainant’s communication.

Illinois lawyers are required to provide any unprivileged information they have about a matter when inquiry is made by the ARDC.2 Because Commission rules require that the response be made within 14 days,3 the letter sent by the ARDC has come to be known as the "14 day letter."

The vast majority of complaints do not lead to any disciplinary action against the lawyer. About 1200 to 1500 are screened out without a request for a response, and another 5000 to 5500 files are closed each year by ARDC staff after some investigation. Most of those files are concluded by review of the written submissions of the complainant and the lawyer along with whatever documentation they provided or ARDC staff obtained. But several hundred proceed to a more intensive investigation which may include sworn statements of the respondent lawyer or other witnesses, audits of trust accounts, business accounts, or other financial records, evaluations by experts and other inquiries.

Often, intensive investigation results from bad decisions the lawyer made in responding to the 14 day letter.

A number of articles have been published giving advice on how to respond to an ARDC inquiry.4 This article will attempt to portray how the advice you will find in those other pieces might play out in a typical case.

The Client Complains

Assume that attorney Sam Bedes’s client, George Fews, sends the following letter to the ARDC:

Dear Administrator:

Sam Bede is a disgrace to the legal profession and should lose his license. He has ruined my life.

I hired Bede for my divorce, but you would think he was working for my wife. So far, she has gotten everything she wants, and all I get are Bede’s outrageous bills. I have paid him over $11,000, but he still claims I owe him another $5,000 and the case is not done. Bede won’t tell me what he did with the $1500 I gave him to hire an investigator to prove that my wife was cheating on me. And what a coincidence — two weeks after he got the $1500, Bede showed up for a court day in the middle of the winter with this incredible tan and so did my ex-wife. I wonder where she could have gotten the money to take a vacation if she was as hard-up as Bede keeps trying to tell me she is.

I know Bede just keeps the case going to run up his bill and have excuses to see my wife. I filed for divorce over three years ago, and I don’t even have a court date. The last I heard from Bede was over 6 months ago, when he told me I’d better find a way to settle the case because he was not going to fight for me anymore unless I paid him everything he says I owe and another $5000 to cover a trial. I have called him every day for the last two months, but he won’t take my calls and he won’t call me back.

Please help me. I can’t afford to hire another lawyer. If Bede won’t handle my case anymore, I think he should have to give me back the money I paid him so I can get a new lawyer. Bede sure hasn’t done anything worth $11,000.

Sincerely,

George Fews

The Dreaded "Letter" Arrives

ARDC Intake counsel reviews the correspondence, and concludes it will need a response. Bede receives the following missive from the ARDC, along with a copy of Mr. Fews’ letter:

Dear Mr. Bede:

We have received the enclosed communication from Mr. Fews. It is our policy to consider all communications we receive regarding Illinois lawyers, although our initial inquiries are not intended to lend credence to any allegations they may contain.

So that we may determine whether an investigation is warranted, please send me a letter in duplicate within fourteen days setting forth the material facts relating to the matters raised in the enclosed communication. Attach copies of any relevant documents. A copy of your response may be sent to Mr. Fews for comment.

Thank you for your cooperation.

Very truly yours,

Intake Counsel

How does Bede want to respond? Or, more carefully put, how should he respond?

The Response: Type A (How Lawyer Bede Might Want to Respond)

Upon reading Intake Counsel’s communication, lawyer Bede slams his office door shut, sits down at his word processor, uncorks the following letter, and hurls it into the nearest mailbox.

Dear Intake Counsel:

I can’t believe you sent me that ridiculous letter from Fews, a consummate deadbeat. Is the ARDC a refuge for scoundrels who don’t want to pay their lawyers for hard-earned work? Is this why I drove a semi to get through law school, so I can be abused by a deadbeat?

I am offended by Fews’ baseless paranoid accusations. Maybe everyone in town is doing his wife because he wasn’t man enough to satisfy her, but count me out. I got my tan on a well-deserved cruise to the Bahamas with my saintly grandmother.

Fews has refused all reasonable offers to settle his case. Just ask Jack Sharkey, his wife’s lawyer, what good deals Fews has thumbed his nose at. I have told him over and over and over, if he wants a trial, he has to pay me another five grand. I’m tapped out. I have told Fews his payments have been more than used up and I think I even gave him a copy of my gumshoe’s report he complains about. Anyway, the fee is between me and him.

Enough’s enough. I’m moving to withdraw from representing this creep. He won’t get any dough back, but I’ll sue his sorry ass - he still owes me.

Please don’t bother me about this again.

Yours,

Sam Bede

The Ardc Reaction: Type A

There are a multitude of reasons why Bede should not have sent that letter. The one that would probably matter the most to him is that he has just managed to guarantee that he will be "bothered again" by the ARDC. Bede’s letter does not satisfactorily address several issues that will have to be resolved before Intake counsel can decide what to do with the complaint. Fews’ complaint that Bede won’t account for the $1500 entrusted to Bede to hire an investigator has to be answered. Money advanced by a client for costs will be deemed to be client funds for which a lawyer must account. Bede will have to produce evidence that he has already paid the $1500 to an investigator, or he will have to show that he holds the $1500 or any unpaid balance in a segregated trust account. Bede’s rather vague reference to his gumshoe’s report does not account for the funds in any way that will satisfy the ARDC.

In addition, Bede is mistaken in asserting that the amount of his fee is a matter between him and the client. Rule 1.55 requires that a lawyer charge only a reasonable fee, so that there are ethical limits, and unless the reasonableness of the fee is apparent from the information provided by the client, a lawyer will have to offer some explanation to demonstrate that a fee he has charged is not unreasonable.

Finally, Bede’s explanation for why he is not returning his client’s calls does not provide a satisfactory basis for concluding that he is meeting his obligations to answer reasonable requests for information under Rule 1.46 and that he is taking reasonable steps to avoid foreseeable prejudice to the client and to otherwise comply with duties imposed when a lawyer undertakes to withdraw, as required by Rule 1.16.7

Bede also does himself no favors by the tone of his letter. Most plainly put, the tone is unprofessional, and he has painted himself as unprofessional in what should be an effort to demonstrate that he is conversant with and complies with professional duties. Whatever Bede’s views on the ARDC or his client, his choice of style is terrible strategy. Bede should also keep in mind that a copy of his letter will be sent to his client. A letter that insults the client only escalates tensions, and Bede might regret his response if the client decides to circulate the letter to other clients or attach it to some pleading.

The ARDC’s response to the above letter would be to write again to Bede, and insist that he address the issues identified above. If he would fail to do so, he would probably next receive a subpoena to appear for a sworn statement and produce relevant records.

The Response: Type B (Or How Bede Ought to Respond)

Assume Bede had the good sense to dispose of the letter reprinted above and consult with a lawyer who regularly appears in ARDC matters. Following is a response that might be submitted on his behalf.

Law Offices of Wisdom and Solomon

Dear Intake Counsel:

I write on behalf of my client, Sam Bede, in the captioned matter. I appreciate your courtesy in granting me a 21 day extension8 to submit this reply. The extension allowed us to gather documents relevant to this response.

Mr. Bede deeply regrets the anguish and frustration expressed in Mr. Few’s letter to the Commission. Mr. Bede has been licensed to practice law since 1975 and concentrates in matrimonial litigation. He spent seven years with the Legal Aid Foundation where his practice concentrated on matrimonial matters. He is a graduate of Northwestern University, summa cum laude, with a degree in Psychology, and he received his legal education at DePaul University School of Law where he served as Articles Editor of the Law Review. He is presently Chair of the DuPage County Bar Association Matrimonial Committee, and is a recipient of three silver Gavel Awards for his pro bono work at Saint Mel’s Parish on Chicago’s West Side.

The Charge

Mr. Fews maintains that he has paid Mr. Bede "...over $11,000." Group Exhibit A to this Response consists of the invoices sent to Mr. Fews and the records of his payments against these invoices. Mr. Bede’s records reflect that Mr. Fews has, to date, paid $8,340.00, a sum which includes the $1,500.00 Private Investigator’s fee and all costs involved in this representation. (See Group Exhibit B, a statement from Eyeball Investigations for $1,500.00, the Eyeball 16 page report with a cover letter showing the report was mailed to Mr. Fews on May 1st, and an itemization of costs.) If Mr. Fews has records reflecting additional payments, we will review them to find if any discrepancy exists between his records and Mr. Bede’s records.

Mr. Bede is sorry that Mr. Fews believes he keeps "... the case going to run up his bill and have excuses to see [his] wife." Mr. Bede’s time records provide a chronology of events detailing the lengthy history of this matrimonial litigation. Mr. Bede believes that those records, attached as Exhibit C, provide an appropriate sense of the reasons the case is not yet concluded. We would be happy to further explain any entry that is not clear.

Mr. Bede recognizes the enormous strain this divorce has placed on Mr. Fews and has on several occasions recommended that Mr. Fews obtain counseling. Mr. Bede met with Mr. Fews six months ago and explained the likely procedures if Mr. Fews persisted in his refusal to pay more than ten percent of his income to his wife and three teenage children. At that meeting, Mr. Bede recommended accepting a settlement agreement he has thrashed out over eight different in-person meetings with counsel for Mrs. Fews. Mr. Fews categorically refused to accept what Mr. Bede believed was a reasonable settlement, much more favorable than Mr. Fews likely would get in a contested trial.

Also at that meeting, Mr. Bede discussed fee issues with Mr. Fews, who was then in arrears on his billings. Part of the expense of representing Mr. Fews arose from his repeated and often repetitious telephone calls, particularly when Mr. Fews, (by way of the slurring of his words and background noises of a jukebox) appeared to have been drinking. During certain of these calls Mr. Fews was abusive to Mr. Bede and his office staff.

Mr. Bede informed Mr. Fews that if he wanted a contested trial, he would have to pay a $5,000.00 trial retainer. Until this retainer was paid, Mr. Bede advised Mr. Fews that he could not accept any further telephone calls from him or do any further work on his behalf. Mr. Fews said he accepted Mr. Bede’s position and would send him the additional $5,000.00 trial retainer the next day. Mr. Fews has never sent the retainer.

Although Mr. Jones informs the Commission he "...can’t afford to hire another lawyer," his financial condition is exceptionally healthy - a factor which has made his insistence on going to trial unwise. (See Group Exhibit D, Mr. Fews’ federal tax returns for the past two years, and his Financial Statements provided to the Fifth National Bank as part of his loan applications for his new home and his new car.)

Mr. Bede is willing to meet with Mr. Fews to try to resolve his concerns. If these concerns and the matter of fees cannot be resolved, Mr. Bede is prepared to turn over his files to whatever new counsel Mr. Fews chooses and to move to withdraw from representation.

Based upon this response and its attachments, I request that this inquiry be closed.

If you require any additional information, please contact me.

Sincerely,

Wisdom & Solomon

The Ardc Reaction: Type B

You will note that one of the advantages of having a representative write the letter is that a representative can wax prolific about Bede’s credentials and legal experience in a way that might feel awkward for Bede himself. Although that would not be critical to the ARDC’s consideration and would rarely impact on the outcome, it does set a tone and provide some helpful information, such as the fact that Bede is a regular matrimonial practitioner.

The really critical features of the response (features that can be incorporated regardless of whether the lawyer chooses to retain counsel) are that it addresses the issues identified above and it provides records that verify the facts and conclusions that are asserted. To avoid the specter of lawyers protecting their own, attorney discipline agencies will decline to credit a lawyer’s version of contested events over the client’s version just because of the lawyer’s professional status. Instead, staff are required to attempt to resolve conflicting versions by looking to documentation or interviewing other witnesses. Providing documentation with the initial response greatly facilitates the resolution of the file.

In this particular case, Bede can take advantage of the fact that he kept good billing records which will probably not only provide a basis for the fee consistent with Rule 1.5, but will also give a better sense of the course of the litigation and the efforts Bede has expended on Fews’ behalf. Intake counsel will not inspect the records to find inappropriate entries or some basis for challenging the fee or the work performed. The goal will be only to verify that there is a creditable basis for the fee, and that the impasse between Bede and Fews has not caused Bede to abandon the cause in a way that will likely result in prejudice to Fews.

The records concerning the investigator’s fee offered as Exhibit B with the letter would be critical. The file could not be concluded by Intake counsel without some comparable documentation, and providing it immediately avoids any need for the ARDC to ask for trust account records or an audit. The response could have been more complete by including copies of the front and back of Bede’s check or checks to Eyeball to show that the payment had actually been made. Intake counsel would probably insist on seeing any checks or other proof of payment before concluding the file.

While the response does at least offer some explanation for the six months of no communication, it would be difficult for Intake staff to close the file without Bede doing something more specific to address the impasse between him and Fews.9 He could show that he has already taken steps to resolve the impasse by writing to Fews with a time-limited proposal and sending a copy of the letter with his response.10 Or if he believes his impasse with Mr. Fews cannot be resolved, he could move to withdraw and enclose a copy of his motion with his response.

Bede (or his lawyer) should feel free to call Intake counsel before responding if he would like clarification as to what information is being sought or to discuss what steps he can take in trying to resolve the impasse with Fews. The caution about tone observed above could be repeated here. If Bede is not convinced that he can control hostility and maintain a civil tone, perhaps the call should not be made. But as long as the request for information or clarification is civil, Intake counsel are happy to provide any answers that might help resolve the issues posed by the file.

A final word of caution: it is presumed that everything offered in the response is scrupulously true. Every now and then, lawyers make the mistake of falsifying documentation or lying in a response to an ARDC inquiry. If discovered, those lawyers will virtually be assured of facing formal disciplinary charges, even if the underlying conduct that is the subject of the inquiry might otherwise have been deemed insufficient to warrant a discipline case.11

The Resolution

Assuming Mr. Bede manages to address the issues noted here, Intake counsel would close the file with a letter to Bede stating no action will be taken and with a letter to Fews explaining why action will not be taken. The letter to Fews might read:

Dear Mr. Fews:

We have concluded our inquiry in the above matter and have determined that there is not a sufficient basis for further action by this Commission.

You reported that you have paid attorney Sam Bede over $11,000 in attorney fees for your divorce and that he has claimed you owe him an additional $5,000. You complained that Mr. Bede’s fees have been excessive and that he has failed to account for $1500 you gave him to hire a private investigator. You further complained that Mr. Bede has failed to advocate your interests, has delayed the case and has not communicated with you for the last six months.

Mr. Bede, through his counsel, provided us with records reflecting that you paid the attorney a total of $8,340. The records show that the attorney expended 42.1 hours working on your case, at his hourly rate of $150. He incurred costs in the amount of $2,025, including the $1500 expended for a private investigator. Mr. Bede provided copies of the private investigator’s report, a $1500 invoice, and the cancelled check showing his payment of the invoice.

Mr. Bede also described some of the issues in your divorce and his efforts to resolve these issues. The attorney’s services included attending numerous court appearances, preparing motions and responses to motions, preparing and responding to discovery requests, taking and attending depositions, drafting and revising a settlement agreement and meeting and negotiating with opposing counsel. Although you may have disagreed with some of Mr. Bede’s legal advice and with his settlement recommendations, your disagreement is not evidence of misconduct on the part of the attorney. When no settlement could be reached, Mr. Bede was prepared to take your case to trial.

Mr. Bede’s records also reflect that he had regular communication with you through the time of your last meeting. According to Mr. Bede, he advised you at that meeting that he would not accept further telephone calls from you or perform further work on your case until he received a $5,000 trial retainer. The attorney stated that you agreed to pay the additional retainer fee, but never did so. It was not unreasonable or improper for Mr. Bede to request the payment of an additional retainer before undertaking to represent you through a contested trial. Although we are concerned that Mr. Bede failed to communicate with you for an extensive period of time after your last meeting, in light of the fact that he has now reestablished communications with you and has acknowledged his responsibilities in that regard, we believe the circumstances do not warrant disciplinary action at this time.

Based upon the information and records provided by both you and Mr. Bede, we have determined that we would not be able to establish that Mr. Bede charged unreasonable or excessive fees. The information and documents in our possession also indicate that until the impasse that developed between you and Mr. Bede, Mr. Bede worked with reasonable diligence to protect your interests and to bring the case to a conclusion. For these reasons and because Mr. Bede has substantiated his payment of $1500 to a private investigator for work on your case, we have determined that a formal disciplinary prosecution of the attorney based upon your allegations would not be warranted. Therefore, we are closing our file at this time.

We note that Mr. Bede has said that he is willing to meet with you to resolve your concerns. He is also willing to release your file to another lawyer should you wish to retain new counsel. Because the duties of this Commission relate solely to investigating and prosecuting allegations of misconduct against attorneys, we are unable to advise you as to what action you should take at this point in time. We suggest that you contact either Mr. Bede or another attorney of your choice to discuss your situation and legal alternatives.

Again, thank you for your cooperation.

Very truly yours,

Intake Counsel

This lengthy missive is representative of letters Intake staff send to complaining witnesses when closing files. It is included to give readers a sense of how much information Intake Counsel will need to be able to conclude a matter. If that information is not available, Intake Counsel will correspond further with the responding attorney or perhaps make phone calls to the lawyer, or if those informal measures fail to produce a satisfactory response, issue subpoenas.

A Final Note

The dispute portrayed here is representative of the substance of many complaints received by the ARDC in two respects: first, both the lawyer and the client contributed to developing the impasse; and second, the lawyer might have avoided the complaint by taking some appropriate action before the client became sufficiently angry and frustrated to file it.

In this case, the lawyer’s professional obligations mandated that the lawyer assume the burden of either finding a way to continue the representation and restore appropriate communications, or ending the relationship. Clients know intuitively that the lawyer has that kind of responsibility, and they will resort to complaining to the ARDC when they see signs that their lawyer is falling short unless the lawyer steps up and takes responsibility for getting the relationship back on course.

Once clients decide to make a complaint, their charges often include and even center on issues as to which the lawyer is actually well within professional norms, and the lawyer is put to the task of answering all of the charges. Lawyers can often save themselves that ordeal by trying to see things through the client’s eyes as a disagreement develops, identifying the courses of action that are available, and taking steps consistent with their position as the professional in the relationship.

Nevertheless, when a complaint gets made, the odds tell you you need not panic. If your conduct, even though not perfect, has generally been consistent with professional obligations, a careful and truthful response along with a willingness to comply with reasonable suggestions as to steps that might alleviate a dispute, will often end the inquiry within two or three months. The fact that the inquiry pends longer than that does not mean formal charges are being contemplated. Sometimes delays in getting information, the time required to review voluminous submissions, or other caseload responsibilities delay a resolution. You are always free to call the Intake lawyer assigned to the file if you are concerned about its progress, keeping in mind that Intake counsel handle about 750 files each year and have average pending caseloads of 200 files.

Finally, keep in mind that the ARDC has an Ethics Inquiry service that would allow you to call for assistance in identifying your ethical obligations BEFORE disaster strikes. Rather than waiting until a client or another makes a complaint, think about calling the Ethics Inquiry line when you first sense that things are going badly. Callers need not identify themselves and questions are answered as hypotheticals. Sometimes you would be better served seeking out that kind of assistance, rather than relying on yourself or colleagues to take an objective view of a developing conflict. The service is available by simply calling the ARDC’s general number in Chicago.

1For instance, many criminal defendants claim that their trial lawyers were incompetent. Most are looking for relief from their convictions, and the charges are rarely supported. Absent unusual circumstances, the Commission will decline to investigate such a charge unless there has been a court finding of incompetence.

2Ill.R.Prof.Cond. 8.3(a)(c).

3Atty. Reg. and Disc. Comm. Rule 53.

4cites

5Ill.R.Prof.Cond. 1.5(a).

6Ill.R.Prof.Cond. 1.4(a).

7Ill.R.Prof.Cond. 1.16.

8Extensions can be requested by calling the Intake counsel who signed the letter asking for a response. Reasonable requests are always honored.

9See In re Smith, 168 Ill.2d 269, 659 N.E. 2d 896 (1995), where the Supreme Court found 8 to 12 month periods of inactivity in divorce cases, during which the lawyer failed to respond to numerous phone calls by the clients, provided a sufficient basis for findings of misconduct (neglect and failure to communicate) even though the clients eventually got their divorces and suffered no specific legal prejudice. The Court observed that unreasonable delay coupled with refusal to communicate causes clients needless anxiety, undermines confidence in the lawyer, and brings the administration of justice into disrepute.

10The fact that a client has filed a complaint against the lawyer does not preclude the lawyer from continuing to represent the client, See e.g., People v. Carroll, 260 Ill.App.3d 319, 631 N.E.2d 1155 (1992), or from attempting to resolve issues with the client as to the terms upon which representation should proceed. The following cautions pertain: a lawyer cannot ask a client to withdraw a disciplinary complaint as a condition of settling a dispute between the lawyer and client, In re Jerome, 31 Ill.2d 284, 201 N.E.2d 440 (1964); and certain disclosures and waivers are required before a lawyer can settle directly with the client issues of the lawyer’s civil liability to that client. Ill. Rules Prof. Conduct 1.8(g) and (h).

11See In re Mendleson, M.R. 12894 (1996), where a lawyer was suspended for 6 months primarily for falsifying documentation submitted with an ARDC response, and then lying about the document under oath during the investigation.


Mary Robinson
is the Administrator of the 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 and her Law Degree in 1974 from the University of Southern California.

Althea Kuller is Senior Counsel of the Attorney Registration and Disciplinary Commission, having previously served as counsel since 1987. She received her Undergraduate Degree in 1984 and her Law Degree in 1987 from Loyola University-Chicago.

William J. Martin is a Principal of Martin, Breen & Merrick, Oak Park. His practice is concentrated in Criminal Defense and Representation before the A.R.D.C. He received his Undergraduate Degree in 1958 and his Law Degree in 1961 from Loyola University-Chicago.


 
 
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