The Journal of The DuPage County Bar Association

Back Issues > Vol. 10 (1997-98)

Look Before You Leap: Researching Ethics Questions
By Mary F. Andreoni

"Ignorance of the law is no excuse." Nowhere is this maxim truer than when applied to lawyers. Knowing when to report another lawyer’s misconduct, recognizing and resolving conflicts of interest, understanding how to safekeep property held in trust for a client, determining what circumstances a client’s confidences must be revealed, may be revealed or must not be revealed, these are the kinds of questions concerning a lawyer’s professional obligations that can’t be resolved by intuition or guess work.

When questions arise concerning a lawyer’s ethical duties, lawyers need to approach them as they would any substantive issue that would develop during the course of their practice - with well reasoned and well researched answers. Such questions can arise in any kind of law practice and in many different contexts - during a civil or criminal proceeding, in defense of a claim of malpractice, or in response to a grievance brought before the ARDC.

Many lawyers are, however, unfamiliar with the sources for researching ethics issues. Rather than conduct research, some lawyers either rely solely on their own sense of fairness and personal experience in order to resolve ethical dilemmas or, worse, rely on the futile hope that the problem will somehow go away on its own.

The Supreme Court has warned that "attorneys who fail to understand and follow the disciplinary rules do so at their peril."1 However well intended a lawyer’s motive, discipline may still be imposed for violating the ethics rules.2

Nevertheless, evidence that a lawyer charged with professional misconduct had made good faith efforts to research the issue in order to come to a reasonable resolution of the question may be considered in mitigation in a disciplinary proceeding.3

Lawyers holding an Illinois license are bound by the 1990 Rules of Professional Conduct (1990 Rules) and by their common law fiduciary duties. Most simple questions arising under the Illinois ethical rules can be resolved by reference to the 1990 Rules. The 1990 Rules do not address every issue that comes up in the course of a lawyer’s practice and sometimes "the policies which underlie the various Rules may, under certain circumstances, be in some tension with each other." 4 The Preamble to the 1990 Rules instructs, "lawyers must be sensitive to the duties imposed by these rules and, whenever practical, should discuss particularly difficult issues with their peers."5 Moreover, the Rules may not always provide answers to certain difficult questions. But complex as a question may be, lawyers are trained to make such difficult decisions and "should not shrink from the task." 6

Below is a checklist of the primary and secondary sources, as well as some of the more commonly used research aids, that lawyers should look to for guidance on ethics issues. This checklist is by no means a complete listing of all the resources available on ethics law.

Primary Sources

1990 Rules of Professional Conduct

What: The starting point for any lawyer confronted with an ethical dilemma is to look to the applicable ethics rules. The 1990 Rules became effective August 1, 1990, and replaced the 1980 Code of Professional Conduct. Therefore, if the question involves conduct occurring after August 1, 1990, the applicable rules are the 1990 Rules. If the conduct in question occurred before August 1, 1990, the applicable rules would be the 1980 Code of Professional Responsibility. See reference to the 1980 Code infra. The 1990 Rules generally follow the form and format of the ABA Model Rules of Professional Conduct. 7 The 1990 Rules are generally organized around certain duties:

Rule 1 series: Lawyer-Client Relationship - competence; scope of representation; diligence; communication; fees; confidentiality; conflicts of interest; handling trust property; withdrawal or termination of the representation

Rule 2 series: Lawyer as Counselor

Rule 3 series: Lawyer as Advocate - the lawyer’s duties as officer of the court - relationship w/ court and opposing counsel

Rule 4 series: Lawyer’s Dealings with Those Other than Clients

Rule 5 series: Law Firms and Associations - supervising subordinates and employees; maintaining professional independence; unauthorized practice of law; restrictions on the right to practice law

Rule 6 series: Public Service

Rule 7 series: Information about Legal Services (advertising)

Rule 8 series: Maintaining the Integrity of the Legal Profession - bar admissions; reporting misconduct; misconduct in general.

Where: Rules of the Supreme Court of Illinois: Admission, Registration, Professional Responsibility and Discipline of Attorneys, and the Code of Judicial Conduct, published by the ARDC, it is updated periodically and contains the latest edition of the 1990 Rules. Available at no cost from the ARDC, it can be obtained by calling the ARDC in Chicago at (312) 565-2600 or (800) 826-8625 or in Springfield at (217) 522-6838 or (800) 252-8048.

Sullivan’s Law Directory, vol. 2 in Rules section

West’s Smith-Hurd, Illinois Compiled Statutes Annot., Supreme Court Rules and Miscellaneous Rules

WestLaw under "IL-RULES"

Supreme Court Rules Regulating the Practice of Law

What: Supreme Court Rules 701 through 713 contain the rules concerning the admission of lawyers in Illinois; Rules 721 through 730 governing the professional service corporations, professional associations and limited liability companies for the practice of law and group legal services; and Rules 751 through 780 deal with the registration and discipline of lawyers in Illinois.

Where: Rules of the Supreme Court of Illinois: Admission, Registration, Professional Responsibility and Discipline of Attorneys, and the Code of Judicial Conduct, published by the ARDC, it is updated periodically and contains the Supreme Court rules regulating the practice of law. Available at no cost from the ARDC, it can be obtained by calling the ARDC in Chicago at (312) 565-2600 in Chicago at (312) 565-2600 or (800) 826-8625 or in Springfield at (217) 522-6838 or (800) 252-8048.

Sullivan’s Law Directory, vol. 2 in Rules section

West’s Smith-Hurd, Illinois Compiled Statutes Annot., Supreme Court Rules and Miscellaneous Rules

WestLaw under "IL-RULES"

Case Law

What: The opinions of the Illinois Supreme Court serve as primary authority in interpreting the rules of professional conduct. The Illinois Supreme Court has original and exclusive authority in formulating, defining and enforcing the standards governing the practice of law8. Also, in some instances, opinions of the United States Supreme Court concerning the practice of law are primary authority, such as lawyer advertising.

Where: Illinois Supreme Court disciplinary cases are annotated in West’s Smith-Hurd, Illinois Compiled Statutes Annot., Supreme Court Rules and Miscellaneous Rules

ARDC Compiled Professional Responsibility Decisions and Rules on CD-Rom - a compilation of Illinois disciplinary case law and rules in a Folio Views© based searchable, CD-ROM format. It contains all published Illinois Supreme Court decisions on disciplinary cases from 1899 to 1997, the 1990 Rules of Professional Conduct, the 1980 Code of Professional Responsiblity and ARDC Hearing and Review Board reports. An ARDC publication, updated in January and July of each year, the CD is available from the ARDC for $21.75 and can be ordered by calling the ARDC and requesting an order form or it can be purchased directly from the CBA Shop, 321 S. Plymouth Ct., Chicago (312) 554-2000. via the Illinois State Bar Association web site: http://www.illinoisbar.org/slips/home.html - (Ill.S.Ct. opinions from May 1, 1996 and Ill.App.Ct. opinions from June 1, 1996) via the Chicago Bar Association web site: http://www.chicagobar.org

West Publishing Company, Illinois Digests 2d, Attorney & Client

West Publishing Company Key Numbers under Attorney & Client

AmJur 2d, Attorneys (Lawyers Cooperative Publishing)

WestLaw database, "Legal Ethics & Professional Responsibility" or LEXIS database, "Ethics"

Secondary Sources

Bar Association Ethics Opinions

Though not binding authority on the Illinois Supreme Court or the ARDC, they are persuasive authority in the absence of case law9 and may provide helpful insights into particular problem areas. The ARDC does not have the authority to provide binding advisory opinions.10

ISBA Ethics Opinions - issued by the ISBA Committee on Professional Conduct, they are available from the ISBA, Office of the General Counsel, Illinois Bar Center, 424 S. Second St., Springfield, Illinois 62701 or from the ISBA web site: http://www.illinoisbar.org or WestLaw under "ILETH-EO".

CBA Ethics Opinions - issued by the CBA Professional Responsibility Committee, they are available from the CBA, 321 S. Plymouth Ct., Chicago, Illinois 60604-3997 or from the CBA web site: http://www.chicagobar.org or WestLaw under "ILETH-EO".

ABA Ethics Opinions issued by the ABA Standing Committee on Ethics and Professional Responsibility, concerning issues under the ABA Model Rules, both formal opinions (beginning with 1924) and informal opinions (beginning with 1961), available in bound volumes in most law libraries or can be obtained from the ABA Center on Professional Responsibility. Most opinions can also be obtained off of WestLaw database, "ABA-ETHOP" or LEXIS database, "Ethics".

Other States Ethics Opinions issued by other state and local bar associations are summarized in the ABA/BNA Lawyers’ Manual on Professional Conduct, see infra, or on WestLaw under "METH-EO" or on LEXIS.

ARDC Disciplinary Cases

What: In formal disciplinary proceedings, a written report, much like memorandum opinions, are filed by the Hearing Board, which acts as a trial court. The report contains findings of fact and conclusions of law and a recommendation of disposition. A public record, the report provides the factual background for what led to the charge of misconduct, the rules that are involved and what the consequences may be for certain ethical violations. If an appeal is taken, the Review Board issues a report in which it may approve, reject or modify the findings and/or recommendation of the Hearing Board.

Where: ARDC Compiled Professional Responsibility Decisions and Rules on CD-Rom - a compilation of Illinois disciplinary case law and rules in a Folio Views© based searchable, CD-ROM format. It contains all published Illinois Supreme Court decisions on disciplinary cases from 1899 to 1997, the 1990 Rules of Professional Conduct, the 1980 Code of Professional Responsiblity and ARDC Hearing and Review Board reports. An ARDC publication, updated in January and July of each year, the CD is available from the ARDC for $21.75 and can be ordered by calling the ARDC and requesting an order form or it can be purchased directly from the CBA Shop, 321 S. Plymouth Ct., Chicago (312) 554-2000.

ARDC Hearing Board and Review Board reports are annotated in West’s Smith-Hurd, Illinois Compiled Statutes Annot., Supreme Court Rules and Miscellaneous Rules

WestLaw under "ILETH-DISP"

Access Plus of the Chicago Daily Law Bulletin

ABA Annotated Model Rules of Professional Conduct (3d ed. 1996) is available from the ABA Center for Professional Responsibility (800/285-2221) and is found in most law libraries or can be obtained on WestLaw under "ABA-AMRPC".

ABA Model Rules of Professional Conduct

What: Adopted by the ABA in 1983, the ABA Model Rules of Professional Conduct serve as a national model of professional standards governing the practice of law.

Where: WestLaw under "ABA-MRPC" or LEXIS

ABA Annotated Model Rules of Professional Conduct (3d ed. 1996) is available from the ABA Center for Professional Responsibility (800/285-2221) and is found in most law libraries or can be obtained on WestLaw under "ABA-AMRPC".

1980 Code of Professional Responsibility

What: If the question involves conduct arising before August 1, 1990, and after June 3, 1980, the predecessor 1980 Code would be a primary source of reference. However, even where the 1990 Rules are applicable, reference to the 1980 Code can be can be a secondary source of guidance. Unlike the 1990 Rules11, the 1980 contains committee commentary to the rules. These commentaries can be helpful in determining the intent of a particular rule if the rule in question under the 1990 Rules is similar to the prior 1980 Code provision.

Where: West’s Smith-Hurd, Illinois Compiled Statutes Annot., ch. 110A, Supreme Court and Miscellaneous Rules (July 1, 1980)

ARDC Compiled Professional Responsibility Rules and Decisions on CD-Rom

Case Law from the Illinois Appellate Court and Other State and Lower Federal Court Jurisdictions

What: The opinions of the Illinois Appellate Court, other federal and state jurisdictions in civil and criminal cases interpreting the ethics rules or dealing with the substantive law as it impacts on a lawyer’s ethical obligations are helpful and can be cited as persuasive authority.

Where: Illinois Appellate Court cases are annotated in West’s Smith-Hurd, Illinois Compiled Statutes Annot., Supreme Court Rules and Miscellaneous Rules via the Illinois State Bar Association web site: http://www.illinoisbar.org/slips/home.html - (Ill.App.Ct. opinions from June 1, 1996) via the Chicago Bar Association web site: http://www.chicagobar.org

West Publishing Company, Illinois Digests 2d, Attorney & Client

West Publishing Company Key Numbers under Attorney & Client

AmJur 2d, Attorneys (Lawyers Cooperative Publishing)

WestLaw database, "Legal Ethics & Professional Responsibility" or LEXIS database, "Ethics"

Research Aids

ARDC Ethics Program

Established in March 1995, by Commission Rules 601-606, this a telephone inquiry service administered by the ARDC which provides general information on where to find sources to help resolve questions regarding legal ethics issues under Illinois law. Inquiries are made by calling the ARDC office in Chicago (312) 565-2600 or (800) 826-8625. Questions are put in the form of hypothetical and no record is kept of the caller’s identity or the specifics of the question. The fact that inquiry has been made or the content of a response are not admissible in any court or ARDC proceeding.

ABA/BNA, The Lawyer’s Manual on Professional Conduct

Found in most law libraries or on WestLaw under "ABA-BNA," it is a four-volume, looseleaf subscription service, consisting of a substantive discussion on the state of the law on professional responsibility, the full text of the ABA Model Codes, recent ABA ethics opinions, digests of ethics opinions issued by state and local bar associations, and recent developments in the field of professional responsibility including opinions, case law and reports of conferences and law reviews. Updated bi-weekly.

ABA Annotated Model Rules of Professional Conduct (3d ed. 1996)

An ABA publication available from the ABA Center for Professional Responsibility (800/285-2221), found in most law libraries or can be obtained on WestLaw under "ABA-AMRPC". A one volume desktop reference guide, it contains the ABA Model Rules, the committee commentary to each rule, a discussion of each rule’s meaning, application and interpretation with citations to ethics opinions, case law and law review articles. Because the 1990 Rules generally follow the ABA Model Rules, this publication is helpful in gaining insight into the rationale behind the adoption of a particular rule and the harm that rule is trying to prevent.

Where: Available from the ABA, Professionalism Department/CPR, 541 Fairbanks Ct., Chicago, Illinois 60611-3314, for $74.95 (non-ABA member), $69.95 (ABA member), or $55.95 (CPR member), (312) 988-5522 or on WestLaw under "ABA-AMRPC".

ETHICSearch

A research service operated by the ABA Center for Professional Responsibility, it provides information on the ABA Model Rules, standards and ethics opinions. Call ETHICSearch at (312) 988-5323 or e-mail at ethicsearch@staff.abanet.org.

Summary

In interpreting a rule, it must be kept in mind that the ethics rules should be applied consistent with constitutional requirements, statutes, other court rules and decisional law and in the context of all relevant circumstances.12 Therefore, when lawyers are confronted by questions concerning their ethical obligations, lawyers should conduct independent legal research, discuss, whenever practical, difficult issues with their peers, seek the advice of legal counsel, when necessary, with respect to specific legal problems, and make the kind of well reasoned decisions that seek to advance the values and goals of the ethics rules.

1 In re Gerard, 132 Ill.2d 507, 548 N.E.2d 1051 (1989)

2 In re Heller, 126 Ill.2d 94, 108, 533 N.E.2d 824 (1988) (evidence of dishonest intent and motive is not necessary to justify the imposition of discipline); In re Young, 111 Ill.2d 98, 103, 488 N.E.2d 1014 (1986) (an attorney can be subject to discipline though his misconduct is based merely upon an honest mistake); In re Clayter, 78 Ill.2d 276, 283, 399 N.E.2d 1318 (1980) (evidence which demonstrates the absence of dishonest intent is usually only appropriate to determine the nature and severity of the sanction imposed).

3 See generally, Wolfram, Modern Legal Ethics, § 2.6, at p. 67 (1st ed. 1986)

4 See 1990 Illinois Rules of Professional Conduct, Preamble.

5 Id.

6 Id.

7 As early as 1998, forty-one jurisdictions have adopted in some part the ABA Model Rules of Professional Conduct and the Model Rules are under consideration in several other jurisdictions.

8 In re Vrdolyak, 137 Ill.2d 407, 148 Ill.Dec. 243, 560 N.E.2d 840 (Ill. 1990)

9In re Himmel, 125 Ill.2d 531, 540, 127 Ill.Dec. 708, 533 N.E.2d 790 (Ill. 1988)

10ARDC Com.Rule 604

11Rule 8.5, which was amended in February 1995, does include a comment. This may signal a trend toward including comments to future rule amendments.

12See ABA Model Rules of Professional Conduct, Scope; see also Ill.Code of Judicial Conduct, Preamble.


Mary F. Andreoni
is Administrative Counsel for the Attorney Registration and Disciplinary Commission. She has served as Administrative Counsel since 1994, having previously practiced Civil Defense Litigation. She received her Undergraduate Degree in 1980 and her Law Degree in 1983 from Loyola University-Chicago.


 
 
DCBA Brief