AVOIDING ARDC ANXIETY: A DISCIPLINARY PRIMER
84 ISBA Journal 452
For all the proclamations of public disrespect for the integrity of the legal profession, lawyers are actually held to very high standards of conduct. Most lawyers are themselves convinced that they practice under strict constraints. Many suffer from persistent anxiety that some unintended misstep will bring professional doom through the heavy hand of the discipline authorities. As a rule, practicing attorneys find incomprehensible public criticism of attorney discipline as a system where lawyers protect their own.
Lawyer discipline in Illinois is, in many respects, less threatening, fairer and more predictable than many practitioners imagine. At the same time, the system is rigid on some issues and there are pitfalls, some not obvious, that threaten a practitioner who might choose an uninformed response to a disciplinary inquiry. For those who would hope to avoid anxiety and to escape the pitfalls, we provide this review of the screening and initial inquiry process of the discipline system.
There are approximately 86,000 lawyers registered to practice law in Illinois as of May 1, 2009. Over 62,000 of those report a principle place of business in Illinois. Despite steady increases in the number of registered attorneys, grievances against Illinois lawyers have averaged around 5,900 for the last five years. The 5,900 grievances docketed for each of the five years involved approximately 4,100 different attorneys each year. Thus about 5% of the registered lawyers become the subject of a disciplinary grievance in any given year.
The nature of a lawyer's practice is the most significant factor in determining whether a particular lawyer is likely to fall within that 5%. Statistics that the ARDC has kept for several years 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. There are no statistics on the size of practice of the lawyers who are subjects of grievances, but staff would venture that the vast majority practice alone or in small firms and serve low-to-middle income clients.
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.
The ARDC employs 35 lawyers who have caseload responsibilities. The Commission has separate Intake and Litigation departments to handle the investigations into alleged lawyer misconduct. Five are assigned to the Intake division which screens incoming complaints and performs the initial inquiry into the facts in most cases. Litigation counsel primarily handle investigations that are more likely to lead to formal proceedings.
Like most lawyer discipline agencies throughout the country, the ARDC undertakes to investigate any complaint that has even marginal validity, not just the most serious charges. That policy is, in part, the result of the fact that lawyers are investigating their own, and it is facilitated by the fact that lawyers are ethically required to cooperate in any disciplinary inquiry concerning themselves or a colleague. In implementing that policy, Intake counsel screen written submissions from complainants to determine whether the submission, read liberally, describes some misconduct by a lawyer. If not, or if the submission falls within one of a few categories where the Commission has determined to investigate only under defined conditions that do not appear in the case, Intake counsel will close the file, explaining the decision in a letter to the complainant, and notifying the lawyer in writing that a complaint was received but that no response will be requested. In about 25% of the investigations docketed each year, closures are made after an initial review are completed without asking the lawyer to respond, although the lawyer and complainant are typically apprised of the determination and 96% are usually concluded within 60 days after the docketing of the grievance.
In the remaining 75% of investigations closed by the Administratorís staff, a determination was made that an investigation was warranted, and, in most cases, these investigations began with a letter from Intake counsel to the lawyer named in the grievance, enclosing a copy of the complainant's submission and asking the lawyer to submit a written response. The lawyer's written response was usually forwarded for comment to the complainant, and the file was reviewed by Intake counsel after the complainant's reply was received or past due. If, at that stage, the submissions and any back-up documentation obtained demonstrated that the lawyer did not violate professional conduct rules, or at least that a violation could not be proved, Intake counsel closed the file. If Intake counsel determined that more expansive investigation was warranted, the file was reassigned to Litigation counsel.
Nearly half of the files referred to Litigation counsel are usually closed within six months, notwithstanding the fact that investigations are usually assigned to Litigation counsel when there is some evidence to suggest misconduct may have occurred. Accordingly, investigations at this level are more extensive and time consuming, in order to determine if the filing of formal action is warranted based on the evidence produced during the investigation. How long it takes before an investigation is resolved is influenced by whether the lawyer has addressed all concerns raised during the investigation, whether other sources are cooperating with the ARDCís requests for information, the complexity of the issues, and the amount of information and documents that the ARDC counsel must review.
On average, only about 4% of the approximately 5,900 investigations docketed each year result in the filing of formal charges because the investigation produced evidence of serious misconduct. Investigations are closed because either the investigation revealed that the lawyer did not violate professional conduct rules or that the lawyer did violate professional conduct rules but the transgressions were minor and did not result in harm to a client or a third party and the responding lawyer acknowledged the mistake and indicated an understanding of the rules and a willingness to honor them in the future. In some instances, the investigation may reveal some evidence of a possible violation of the professional conduct rules, however, there is not sufficient evidence to prove the violation at a disciplinary hearing.
While every case differs, there are certain patterns seen in the grievances submitted against lawyers that have resulted in the development of some principles to determine which files can be summarily closed and which grievances should be answered by the lawyers or otherwise investigated. Following are some of the more commonly invoked guidelines.
Charges of Delay and Failure to Communicate with the Client - Some complaints that a lawyer is taking too long to complete a case contain facts which themselves show that the time the case has been pending is objectively reasonable and that the client has suffered no prejudice because of that time. In such cases, no response will be required of the lawyer unless some other allegation warrants an inquiry.
If the client also complains about difficulty communicating with the lawyer but the circumstances do not appear extreme, staff counsel might still close the file while communicating to the lawyer the fact that the client has expressed some concern and explaining to the client that the client's concern has been brought to the lawyer's attention. Where the facts submitted by the client suggest that there may have been unreasonable delay in a case, where the client asserts prejudice has resulted from the delay, or when the circumstances surrounding the communication issues appear unreasonable, the lawyer will be asked to respond to the client's allegations.
Charges of Incompetence against Criminal Defense Lawyers - Many persons convicted of crimes complain that their convictions resulted from the incompetence of their attorneys. Most of those who file such charges with the ARDC are looking for relief from their convictions, relief which the ARDC cannot provide. The charges are almost always unsupported. Absent exceptional circumstances, no inquiry will be conducted unless a court has found that the lawyer provided ineffective assistance to the client in a particular case.
Advertising - Each year the ARDC receives a fair number of complaints about lawyer advertising. Most are submitted anonymously or by other lawyers. Most advertising done by Illinois lawyers conforms to the ethics rules, and it is rare that any of these complaints provides any basis for an inquiry.
In the few cases in which a lawyer has failed to comply with a specific requirement (such as clearly labeling direct mail solicitations as advertising material), staff counsel will usually bring the defect to the attention of the advertiser, and upon the lawyer's recognition of the requirements of the rules and agreement to change practices to conform in the future, the file will be closed. When advertising is potentially misleading, or where a lawyer offers to conduct business in a manner prohibited by the Rules of Professional Conduct, the lawyer will be asked to respond and further action may be warranted.
Litigants Unhappy with the Result - A fair number of parties who are displeased with the result of litigation in which they were involved file grievances blaming their own lawyers for failing to do better or accusing the opposing attorney of unfair tactics. If the complainant has included facts that suggest actual incompetence or perhaps a conflict of interest by the complainant's attorney, objective evidence of abusive litigation tactics or fraud by the opposing attorney, or other objective circumstances indicating some misconduct by either, the lawyer complained of will be asked to respond. Where the allegations do not transcend general disappointment or anger because the results failed to meet the client's expectations, the file will be closed without asking for a response.
Fee Disputes - Lawyers are ethically required to charge only reasonable fees. Hundreds of clients complain every year about fees charged by their lawyers. Deciding which of those complaints warrant inquiry poses some challenges.
If the complainant alleges fraud, a fee that is prohibited by the Rules of Professional Conduct or other Court rule or statute, or that a fee advanced was not earned, the lawyer will be asked to respond. If the complainant asserts only general dissatisfaction with the amount of the fee, staff counsel will typically explain that the ARDC does not attempt to resolve fee disputes and will close the file.
Many complainants who understand that the ARDC will not look into what it deems to be a fee dispute will, however, expand their grievances to include concerns about delay, the lawyer's failure to return phone calls or answer written inquiries, incompetence, and extreme incivility. Those types of complaints will generally result in staff requesting that the lawyer respond to the charges.
Incivility - Each year, a fair number of complaints are lodged alleging that lawyers used abusive language or behavior toward their own clients, adversaries, or opposing counsel. It is particularly hard to draw lines as to which kinds of incivility complaints warrant some inquiry. There have been a handful of Illinois lawyers disciplined for engaging in conduct prejudicial to the administration of justice for such conduct.
As a rule, if the allegation is that the lawyer used foul or threatening language toward someone (as opposed to in the presence of others), the context involved the practice of law, and the language or conduct crosses a threshold of unreasonableness, the lawyer will be asked to respond to the charge. On the other hand, if the charge is that the lawyer used language or said things in the complainant's presence which the complainant found offensive, but which was not directed at the complainant or which did not reasonably appear threatening or abusive, the file will be closed without asking for a response.
Failure to Pay a Private Financial Obligation - Some creditors complain to the ARDC about lawyers not paying their debts. No inquiry will be conducted if the debt involves a personal obligation that has not been reduced to a judgment. If the creditor was retained by the lawyer on behalf of a client, an inquiry will be made as to whether the client gave the lawyer funds to pay for the service or product, whether the lawyer properly segregated those funds, and whether the lawyer still holds the funds or has told the client that the debt was satisfied.
If the grievance alleges that the lawyer has defied a court order, that the lawyer willfully failed to pay tax obligations, or that the lawyer has failed in bad faith to pay an educational loan guaranteed by a governmental entity, an inquiry will usually be made.
Duty to Respond - A cold, hard fact of life as a lawyer is that one must timely respond to a disciplinary inquiry, whether the inquiry is about the lawyer's own conduct or that of a colleague. See Com. Rule 53. That duty is consistent with a lawyer's responsibility to provide complete and accurate information to admissions authorities for purposes of the individual's own licensing or that of another. Compliance with those obligations is critical to the effectiveness of the profession's effort to monitor itself within reasonable cost constraints.
Most lawyers honor those duties. Some, however, adopt the ostrich stance, seemingly in the hope that ignoring a disciplinary inquiry will make it go away. Another cold, hard fact of life as is that the ARDC never goes away until it obtains the answers it needs to resolve an inquiry.
A failure to respond will result in the issuance of a subpoena requiring the lawyer's appearance at ARDC offices for a sworn statement and/or the issuance of subpoenas to third party sources (e.g., a lawyer's bank) for production of documentation or other information needed to review the complaint. The lawyer can be assessed costs associated with those measures (e.g., the court reporter's fee, bank copying costs) whether or not discipline is eventually imposed if the subpoena was issued because of the lawyer's failure to respond. In addition, failure to cooperate in the investigative stages of a case is a separate ethical offense which can and often does lead to additional discipline.
Reasonable requests for additional time to respond to an ARDC inquiry are always honored. Indeed, in the long run, taking the time necessary to answer carefully and to provide any back-up documentation that will help clarify areas of disagreement will often expedite the resolution of the file. A lawyer who wants time beyond the 14 days usually allotted to submit a response should call or write the staff attorney who signed the ARDC letter asking for the response.
Substance of Response - A good response will provide appropriate background information and legal context, while addressing as explicitly as feasible the complaints voiced by the client or other complainant, all with as little anger and sarcasm as possible. To avoid charges of favoritism, lawyer discipline agencies resist crediting a lawyer's account over that of a client due solely to the lawyer's professional status.
If there is a disagreement between lawyer and complainant as to any important fact, staff counsel are expected to test the assertions by reviewing documentation or interviewing other witnesses with knowledge. A good response will include copies of critical documents and information on how to contact witnesses with knowledge of disputed facts.
If a response is confusing or incomplete, the staff lawyer will have to do additional independent analytical and investigative work, and resolution will take longer. Obfuscation that seems intentional can raise suspicions that expand and prolong the investigation.
While it can be difficult to leave the venom out of the response, there are a number of reasons to try. Emotional attacks on the complainant or the disciplinary system rarely clarify any issue that will have to be resolved to conclude the file, and, more often than not, responses that are structured around emotion tend to confuse the issues. Responses laced with venom toward the client are unprofessional, and they will make the lawyer appear unprofessional to both the ARDC staff and the complainant, who will be sent a copy of the response. As with any legal writing, a response should be drafted to accomplish the desired result. Lawyers who want the inquiry ended, as opposed to a prolonged battle with the discipline staff, are well advised to delete personal or institutional insults from the final draft.
Should the Lawyer Retain Counsel to Handle A Response? ARDC staff are often asked if it is important for a lawyer to secure representation when responding to a disciplinary inquiry. The answer depends both on the nature of the inquiry and the comfort level of the lawyer who has become the unhappy subject.
If a lawyer knows an inquiry involves something serious, he or she should retain counsel at the earliest possible opportunity. Examples of potentially serious problems include instances where lawyers (1) have allowed a cause of action to be lost, a default judgment to be entered against a client, or an appeal to be dismissed because of their failure to take appropriate action; (2) have become involved in business transactions with clients without appropriate disclosures or independent representation for the client; (3) have been convicted of a criminal offense, whether misdemeanor or felony; (4) have been accused of mishandling funds; or (5) have been accused of fraud or dishonest conduct, including false statements to a court, client, or some other party, or fraudulent or deceitful conduct that does not involve the practice of law.
Some fee matters are potentially serious, including allegations of billing fraud, cases where a lawyer has taken a contingency fee where there was no element of risk to the recovery, and cases where a lawyer has taken fees beyond what was allowed by statute or court order.
Particular caution is warranted whenever an inquiry involves the manner in which a lawyer has handled funds belonging to a client or third party. This is an area where the discipline system is rigid. Any suggestion that a lawyer has used another's funds for the lawyer's own business or personal purposes, whether intentionally or inadvertently, will be vigorously pursued, and if the investigation supports the allegations, ARDC staff will seek to file formal charges. A lawyer facing inquiry concerning his handling of funds in which a client or another has an interest would be wise to consult counsel experienced in representing lawyers in ARDC matters.
Even in cases that are not likely to result in disciplinary charges, many lawyers are well served by securing representation. A fair number of lawyers who represent themselves make their problems worse by not admitting the obvious, being afraid to acknowledge an error where the acknowledgment is all the ARDC staff needs to close the file, or obstinately avoiding answering questions that have to be resolved. Representation can help avoid those problems while providing the respondent lawyer with some peace of mind upon receiving informed legal advice on what is likely to happen. At a minimum, it would be wise to ask a trusted colleague to review a response to a disciplinary inquiry before it is submitted.
Pitfalls and Dilemmas Arising in Responding to an Inquiry - A very few lawyers make the mistake of falsifying documents or misrepresenting facts in their responses. This is another area in which the disciplinary system is rigid. If discovered, those lawyers will face formal discipline charges and probably some suspension, even if the underlying conduct they tried to hide was not itself serious.
A related phenomenon is the dishearteningly frequent tendency of lawyers to try to conceal their failings from their clients by pretending to have filed cases that were never filed, pretending to have court dates on cases that have been dismissed, and even pretending to have secured settlements or judgments on cases that have been lost through the lawyer's dereliction. Evidence of such a misrepresentation to a client will often turn a case that might have been resolved informally into a case with formal charges and some sanction.
Lawyers also sometimes make the mistake of trying to settle the underlying controversy with the client without appropriate disclosures and/or with the improper request that the client agree to withdraw the disciplinary complaint. Rule 1.8(g) prohibits a lawyer from settling a civil claim against the lawyer by an unrepresented client or former client without first advising the person in writing that independent representation is appropriate. Rule 1.8(h) prohibits a lawyer from entering into an agreement purporting to limit a client's or former client's pursuit of a disciplinary complaint against the lawyer. Violating those rules in the midst of attempting to defend a disciplinary inquiry can add to a lawyer's disciplinary problems.
On the other hand, some lawyers view the pendency of a discipline inquiry as preventing them from addressing legitimate client demands or claims. The rules do not preclude lawyers from refunding unearned fees, paying out disputed settlement funds, or even settling malpractice claims of clients while a disciplinary inquiry is pending. Instead, the rules constrain the terms of any agreements concerning such payments or settlements as described above.
Lawyers often ask what their duties are with respect to ongoing representation of clients who have filed ARDC complaints. The fact that the complaint was filed does not automatically require a lawyer to withdraw from representing the client. On the other hand, the particulars of a given complaint may mandate or at least strongly advise withdrawal. In such cases, lawyers should be careful to honor the dictates of Rule 1.16 concerning notice to the client, accomplishing withdrawal to avoid prejudice to the client's rights, securing permission of the tribunal when an appearance has been filed, and refunding any unearned portion of a fee paid prior to the withdrawal.
Another issue that arises when lawyers respond to disciplinary inquiries is the scope of the attorney-client privilege. Rule 1.6(c)(3) provides that a lawyer may use or reveal client confidences or secrets necessary to defend the lawyer or the lawyer's associates or employees against an accusation of wrongful conduct.
From time to time, lawyers pay too little heed to the rule's limitation that the information be necessary to defend against the accusation. This self-defense exception to the privilege rule should not be seen as an invitation to engage in character assassination of a client. By the same token, the lawyer cannot use the attorney-client privilege as an excuse for not turning over information sought in a disciplinary investigation.
Any information gathered in investigating a disciplinary complaint is confidential and cannot be revealed to outside sources unless permitted by Supreme Court Rule 766(b). Many files, however, require that ARDC staff verify information by asking persons with knowledge to confirm or deny matters asserted by others. Staff appreciate being informed whenever there are specific reasons for not communicating information to particular persons. For instance, revelation of particular information to a party in a case that arose from a physically abusive relationship could endanger another, and staff will avoid making such a disclosure if forewarned. If there is pending civil litigation related to the matter at issue in the ARDC inquiry, the ARDC will attempt to avoid allowing its investigative resources to be used by the parties to the civil suit, and disclosures to persons connected with the litigation can be restricted to prevent misuse.
If, upon reviewing the file, the staff counsel has concluded that neither further investigation nor referral for formal charges is warranted, he or she will draft letters to both the complainant and the lawyer explaining that the file is being closed and no action will be taken. Staff are required to explain the reasons for that decision in the letter to the complaining witness. When warranted, the letter to the lawyer may include a caution that although the circumstances were deemed not to warrant action at the time, receipt of further allegations of conduct might result in the file being reopened and the pursuit of formal discipline charges.
On average about 4% of investigations result in the filing of formal charges. In about 300 to 400 files a year the investigation leads to a referral to the Inquiry Board, which sits in panels of three consisting of two lawyers and one non lawyer who review the investigative work product to determine whether there is sufficient evidence for the filing of a formal complaint. Inquiry panels also have authority to order diversion in cases involving minor misconduct where the lawyer agrees to conditions of supervision. Separate Intake and Litigation departments resolve more than 93% of investigations without the Inquiry Board approval that was necessary to close any investigation early in ARDC history. The clear majority of investigations are closed expeditiously, with 96% of investigations concluded within 60 days of receipt of a request for investigation. Litigation staff handles investigations that become much more involved, but still concludes all but 27% within one year.
In the early days of the ARDC, Inquiry panels had to approve the decision to close any file. Over the years, staff have been given considerably more authority to close files, and the number of cases referred to Inquiry has dropped substantially. Now, only cases where ARDC counsel seek authority to file formal charges or approval of diversion are referred to inquiry panels.
By way of contrast, in 1992, Inquiry panels acted on 750 investigative files, voting to authorize formal charges in 277 matters involving 96 lawyers and voting to close 473 files. In 2008, Inquiry panels acted on 344 investigative files, voting to authorize formal charges in 228 matters involving 100 lawyers, and deciding to close 104 files.
A file that has been closed for any reason without the filing of formal charges remains confidential in accordance with Supreme Court Rule 766. Pursuant to Supreme Court Rule 778, the file itself will be destroyed and any computer records of the matter will be expunged after three years, unless the lawyer has been disciplined or is facing a formal discipline proceeding as a result of other charges.
The ARDC provides an Ethics Inquiry service. A Commission lawyer is available to answer phone inquiries about ethics issues. The program is not designed to provide assistance to lawyers in drafting responses to disciplinary inquiries, but callers will be provided assistance in identifying any Rules of Professional Conduct relevant to their problems, and will be referred to case law or other sources that might help them resolve their concerns. An attorney may make an ethics inquiry by telephoning the ARDCís Chicago office at 312/565-2600 or 800/826-8625 or Springfield office at 217/522-6838 or 800/252-8048. The Commission does not accept ethics inquiries by e-mail or facsimile.
 The 2003 Annual Report contained a study of demographic data for lawyers disciplined by the Illinois Supreme Court between 1998 and 2002, and found that while sole practitioners constitute approximately 19% of the Illinois bar, they accounted for 67% of lawyers disciplined during that five-year time period. See 2003 Annual Report, at IV, p. 18.
 For example, in the 2008 Annual Report of the ARDC, of the 6,127 investigation concluded in 2008, 1,441 or 24% of all investigations concluded were closed after an initial review of the complainantís concerns. 94% were handled by Intake counsel and 6% were concluded by Litigation counsel. 75% were concluded within 10 days and all but 4% were concluded within 60 days after the docketing of the investigation. The remaining 4,305 investigations were closed after a determination to conduct an investigation was made; 2,768, or 64%, were closed by Intake counsel, with 77% of those closed within 90 days of receipt. 36% were closed by Litigation counsel. See 2008 Annual Report of the ARDC, Charts 13A & 13B, at p. 11-12.
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