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ETHICS INQUIRY PROGRAM


Guide to the ARDC Ethics Inquiry Program  |  Ethics FAQs  |  Professionalism Seminar  |  Legal Ethics Research Links  |  Rules and Decisions

ETHICS INQUIRY PROGRAM FAQS

The information contained in this web site is for informational purposes only and does not constitute legal advice. Lawyers with legal ethics issues should use this site only as a starting point for their research and should assume that any citations contained herein have not been updated and that other cases not cited here may exist. Use of this web site does not create an attorney-client relationship between the user and the Attorney Registration and Disciplinary Commission (“ARDC”) or any employee of ARDC. The user should not act or rely on the information in this site without obtaining appropriate legal counsel, and should consult with legal counsel regarding the application of the law to the facts of particular situations.

How long should I retain client files?

The Rule requirements for the retention of records are contained in Supreme Court Rule 769 (Maintenance of Records), Supreme Court Rule 756(e) (Disclosure of Malpractice Insurance) and Rule 1.15(a) (Safekeeping Property).  The requirement to retain a copy of advertising  (1990 Rule 7.2(a)(1)0 was eliminated with the adoption of the 2010 Rules of Professional Conduct, eff. January 1, 2010.

Rule 769 requires a lawyer to maintain two types of records: (1) records identifying the name and last known address of the attorney's clients and whether the representation is ongoing or concluded; and (2) all financial records relating to the attorney's practice for a period of not less than 7 years after the representation is concluded.

Rule 756(e) requires a lawyer to maintain, for a period of seven years from the date the coverage is reported to the ARDC as part of the registration process, documentation showing the name of the insurer, the policy number, the amount of coverage and the term of the policy

Rule 1.15(a) requires that all records of trust accounts or other property held in trust is kept for a period of seven years after the end of the representation.

For records other than those covered by the above rules, there are no rules that specifically cover how long a lawyer must keep records contained in a client’s file (unless the lawyer has been disciplined and the duties of Supreme Court Rule 764 would apply). Upon termination of the representation, the lawyer is required to return all papers and property received from the client (Rules 1.15(d) and 1.16(d)). For other records, the lawyer should exercise prudent judgment in determining how long to retain the client file, taking into consideration such things as when the statute of limitations for legal malpractice has expired, any particular difficulties in the relationship with the client or the representation, if the client was a minor or incompetent that might extend the period of limitations, whether the file contains any original documents that the client might want back, and whether any documents if destroyed would be difficult to reconstruct from other sources. See Thar, Anne E., How Long Should You Retain Client Files?, 83 ISBA Bar J. 649 (Dec. 1995).

There is no statute of limitations for a client or other person to complain about a lawyer’s conduct to the ARDC. For a discussion on the related issue of responding to a client’s request for a lawyer’s copy of closed files see ISBA Ethics Opinion Nos. 94-13 and 94-14 (January 1995) which can be obtained from the ISBA’s web site at www.illinoisbar.org.

If I know that another attorney has engaged in professional misconduct, must I report that activity?

Rule 8.3 sets forth the mandatory duty a lawyer has to report his knowledge, not protected by the attorney-client privilege, that another lawyer or judge has committed serious misconduct. In re Himmel, 125 Ill.2d 531, 127 Ill.Dec. 708, 533 N.E.2d 790 (1988) (lawyer suspended one year for failure to report his unprivileged knowledge of conversion of settlement funds by client's prior lawyer). Since the Himmel decision, the ARDC receives approximately 500 reports each year. About 20% of these reports lead to the filing of formal disciplinary complaints. Recently, the Illinois Supreme Court in Skolnick v. Altheimer & Gray, 191 Ill.2d 214, 246 Ill.Dec. 324, 730 N.E.2d 4 (2000), clarified some of elements of the duty to report.

Rule 8.3 Reporting Professional Misconduct provides:

(a) A lawyer who knows that another lawyer has committed a violation of Rule 8.4(b) or Rule 8.4(c) shall inform the appropriate professional authority.

 (b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.

 (c) This Rule does not require disclosure of information otherwise protected by the attorney-client privilege or by law or information gained by a lawyer or judge while participating in an approved lawyers’ assistance program or an intermediary program approved by a circuit court in which nondisciplinary complaints against judges or lawyers can be referred.

  (d) A lawyer who has been disciplined as a result of a lawyer disciplinary action brought before any body other than the Illinois Attorney Registration and Disciplinary Commission shall report that fact to the Commission.

Adopted July 1, 2009, effective January 1, 2010.

The elements of the duty to report lawyer misconduct under Rule 8.3(a) are:

1) knowledge - not “absolute certainty” but more than mere speculation, hearsay, innuendo, etc. The Rule 1.0(f) of the Terminology section of the Rules define "[k]nowingly," "known" and "knows" as "actual knowledge of the fact in question" which "may be inferred from circumstances." Therefore, “knowledge” is based on what the lawyer knows or reasonably should know. The lawyer does not have a duty to investigate further if lawyer does not possess the requisite knowledge to trigger the mandatory reporting duty.

2) information not protected by the attorney-client privilege or by law or by information gained through participation in an approved lawyers' assistance program or court-approved intermediary program. Thus, if the lawyer’s knowledge is based on information protected by the attorney-client privilege, the lawyer cannot make a report without seeking the client’s consent to waive the privilege.

3) the misconduct involves a violation of Rule 8.4(b) (criminal activity that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer, i.e., crimes involving moral turpitude or fraud) or Rule 8.4(c) (conduct involving or conduct involving dishonesty, fraud, deceit or misrepresentation, i.e., intentional deception, rather than negligent misrepresentation). A lawyer who knows of conduct involving a violation of Rules other than Rule 8.4(b) or (c) is not required to report such conduct.  See Comment [3] to Rule 8.3.  It is discretionary with the lawyer to report such conduct particularly where the lawyer believes that reporting the conduct to the ARDC may prevention further harm to the public.

4) report to an authority empowered to investigate or act upon such violation – means a report should be made to the Illinois Attorney Registration and Disciplinary Commission (ARDC) unless some other agency is more appropriate in the circumstances.   See Comment [3] to Rule 8.3.  The report is not to the trial court or any other tribunal.  The duty to report is absolute and a lawyer cannot be prevented or excused from discharging this duty by a court, a client (unless the lawyer’s knowledge is based on client confidences, in which case, the lawyer cannot report unless the client waives the privilege), by a report already made by the client or someone else or even if the information about the misconduct has become “common knowledge.”

How do I find out which jurisdictions share reciprocity with Illinois?

Reciprocal admission (admission on motion) under Supreme Court Rule 705 is overseen by the Illinois Board of Admissions to the Bar, an agency of the Illinois Supreme Court. For further information on applying for admission to the Illinois Bar or for a listing of jurisdictions which share reciprocity with Illinois, please contact the Illinois Board of Admissions to the Bar.

Can I pay a referral fee to another lawyer?

Rules 1.5(e) permits fee splitting between lawyers, not members of the same firm, where the primary service performed by one lawyer is the referral of the client to another lawyer, if certain requirements are met. A referral agreement is valid only if it meets all of the following requirements:

(1) the client is advised in writing by that the primary service performed by one lawyer is the referral of the client to another lawyer and each lawyer assumes joint financial responsibility for the representation (i.e., the referring lawyer agrees to be financially responsible for the performance of services to the client);

(2) the client is advised in writing the share each lawyer will receive;

(3) client consents in writing after receipt of the written disclosure; and

(4) the total fee is reasonable.

The requirements of Rule 1.5 are designed for the protection of the client’s interests and not for the benefit of the lawyers. See Richards v. SSM Health Care, Inc., 311 Ill.App.3d 560, 244 Ill.Dec. 87, 724 N.E.2d (1st Dist. 2000) and Albert Brooks Friedman, Ltd. v. Malevitis, 304 Ill.App.3d 979, 238 Ill.Dec. 46, 710 N.E.2d 843 (1st Dist. 1999); and Canel & Hale, Ltd. v. Tobin, 304 Ill.App.3d 906, 238 Ill.Dec. 64, 710 N.E.2d 861 (1st Dist. 1999).

What are the requirements for opening and maintaining a client trust fund account?

A trust account is necessary whenever the lawyer comes into possession of funds belonging to a client or third person in connection with a representation as required by Rule 1.15(a).

The basics of opening and maintaining a client trust account are discussed in the ARDC publication, The Client Trust Account Handbook (January 2010). You may obtain a free copy of this publication by contacting the ARDC.

If the funds are nominal or are expected to be held for a short period of time, including advances for costs and expenses, they must be deposited into one or more pooled interest-bearing trust accounts (IOLTA – Interest on Lawyer Trust Account) with the Lawyers Trust Fund of Illinois designated as the income beneficiary as set forth in Rule 1.15(f). For further information about the IOLTA program, to obtain the forms to set up an IOLTA trust account or for the Lawyers Trust Fund's list of banks and other financial institutions eligible to hold IOLTA accounts in your area, please contact The Lawyers Trust Fund of Illinois at www.ltf.org. The Lawyers Trust Fund of Illinois is located at Two Prudential Plaza, 180 North Stetson Avenue, Suite 820 Chicago, IL 60601  (312) 938-2906 [Main Phone]  (312) 938-3091 [Fax]  1-800-624-8962 [Toll Free]

   
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