1990 Rules Governing the Legal Profession and Judiciary in Illinois 
(replaced on January 1, 2010, by the 2010 Rules of Professional Conduct)

TABLE OF CONTENTS

Rules of Professional Conduct

Preamble
Rule 1.1 Competence
Rule 1.2 Scope of Representation

Rule 1.3

Diligence

Rule 1.4 

Communication

Rule 1.5 

Fees
Rule 1.6  Confidentiality of Information (Amended May 24, 2006)
Rule 1.7  Conflict of Interest: General Rule
Rule 1.8 Conflict of Interest: Prohibited Transactions

Rule 1.9 

Conflict of Interest: Former Client
Rule 1.10  Imputed Disqualification: General Rule

Rule 1.11 

Successive Government and Private Employment

Rule 1.12 

Former Judge or Arbitrator

Rule 1.13 

Organization as Client

Rule 1.14 

Client Under a Disability
Rule 1.15  Safekeeping Property (Amended July 1, 2011, effective September 1, 2011.)

Rule 1.16 

Declining or Terminating Representation
Rule 1.17 Sale or Transfer of a Law Practice (New)

Rule 2.1 

Advisor

Rule 2.2 

Reserved

Rule 2.3

Evaluation for Use by Third Persons

Rule 3.1 

Meritorious Claims and Contentions

Rule 3.2 

Expediting Litigation

Rule 3.3 

Conduct Before a Tribunal

Rule 3.4

Fairness to Opposing Party and Counsel

Rule 3.5

Impartiality and Decorum of the Tribunal

Rule 3.6 

Trial Publicity

Rule 3.7 

Lawyer as Witness

Rule 3.8 

Special Responsibilities of a Prosecutor
Rule 3.9  Reserved

Rule 4.1 

Truthfulness in Statements to Others

Rule 4.2

Communication With Person Represented by Counsel

Rule 4.3 

Dealing With Unrepresented Person

Rule 4.4 

Respect for Rights of Third Persons

Rule 5.1 

Responsibilities of a Partner or Supervisory Lawyer

Rule 5.2 

Responsibilities of a Subordinate Lawyer
Rule 5.3 Responsibilities Regarding Nonlawyer Assistants
Rule 5.4 Professional Independence of a Lawyer
Rule 5.5 Unauthorized Practice of Law
Rule 5.6 Restrictions on Right to Practice
Rule 6.1 Reserved
Rule 6.2 Accepting Appointments
Rule 6.3 Membership in Legal Services Organization
Rule 6.4 Law Reform Activities Affecting Client Interests
Rule 7.1 Communications Concerning a Lawyer's Services
Rule 7.2 Advertising
Rule 7.3 Direct Contact With Prospective Clients
Rule 7.4 Communication of Fields of Practice
Rule 7.5 Firm Names and Letterheads
Rule 8.1 Bar Admission and Disciplinary Matters
Rule 8.2 Judicial and Legal Officials
Rule 8.3 Reporting Professional Misconduct
Rule 8.4 Misconduct
Rule 8.5 Disciplinary Authority; Choice of Law

 

SUPREME COURT OF ILLINOIS RULES OF PROFESSIONAL CONDUCT

ARTICLE VIII.  

Preamble

The practice of law is a public trust.  Lawyers are the trustees of the system by which citizens resolve disputes among themselves, punish and deter crime, and determine their relative rights and responsibilities toward each other and their government.  Lawyers therefore are responsible for the character, competence and integrity of the persons whom they assist in joining their profession; for assuring access to that system through the availability of competent legal counsel; for maintaining public confidence in the system of justice by acting competently and with loyalty to the best interests of their clients; by working to improve that system to meet the challenges of a rapidly changing society; and by defending the integrity of the judicial system against those who would corrupt, abuse or defraud it.

To achieve these ends the practice of law is regulated by the following rules.  Violation of these rules is grounds for discipline.  No set of prohibitions, however, can adequately articulate the positive values or goals sought to be advanced by those prohibitions.  This preamble therefore seeks to articulate those values in much the same way as did the former canons set forth in the Illinois Code of Professional Responsibility.  Lawyers seeking to conform their conduct to the requirements of these rules should look to the values described in this preamble for guidance in interpreting the difficult issues which may arise under the rules.

The policies which underlie the various rules may, under certain circumstances, be in some tension with each other.  Wherever feasible, the rules themselves seek to resolve such conflicts with clear statements of duty.  For example, a lawyer must disclose, even in breach of a client confidence, a client's intent to commit a crime involving a serious risk of bodily harm.  In other cases, lawyers must carefully weigh conflicting values, and make decisions, at the peril of violating one or more of the following rules.  Lawyers are trained to make just such decisions, however, and should not shrink from the task.  To reach correct ethical decisions, lawyers must be sensitive to the duties imposed by these rules and, whenever practical, should discuss particularly difficult issues with their peers.

Timely, affordable counsel is essential if disputes are to be avoided and, when necessary, resolved.  Basic rights have little meaning without access to the judicial system which vindicates them.  Effective access to that system often requires the assistance of counsel.

It is the responsibility of those licensed as officers of the court to use their training, experience and skills to provide services in the public interest for which compensation may not be available.  It is the responsibility of those who manage law firms to create an environment that is hospitable to the rendering of a reasonable amount of uncompensated service by lawyers practicing in that firm.

Service in the public interest may take many forms.  These include but are not limited to pro bono representation of persons unable to pay for legal services and assistance in the organized bar's efforts at law reform.  An individual lawyer's efforts in these areas is evidence of the lawyer's good character and fitness to practice law, and the efforts of the bar as a whole are essential to the bar's maintenance of professionalism.

The absence from the proposed new rules of ABA Model Rule 6.1 regarding pro bono and public service therefore should not be interpreted as limiting the responsibility of attorneys to render uncompensated service in the public interest.  Rather, the rationale for the absence of ABA Model Rule 6.1 is that this concept is not appropriate for a disciplinary code, because an appropriate disciplinary standard regarding pro bono and public service is difficult, if not impossible, to articulate.  That ABA Model Rule 6.1 itself uses the word "should" instead of "shall" in describing this duty reflects the uncertainty of the ABA on this issue.

The quality of the legal professional can be no better than that of its members.  Lawyers must exercise good judgment and candor in supporting applicants for membership in the bar.

Lawyers also must assist in the policing of lawyer misconduct.  The vigilance of the bar in preventing and, where required, reporting misconduct can be a formidable deterrent to such misconduct, and a key to maintaining public confidence in the integrity of the profession as a whole in the face of the egregious misconduct of a few.

Legal services are not a commodity.  Rather, they are the result of the efforts, training, judgment and experience of the members of a learned profession.  These rules reflect the sensitive task of striking a balance between making available useful information regarding the availability and merits of lawyers and the need to protect the public against deceptive or overreaching practices.  All communications with clients and potential clients should be consistent with these values.

The lawyer-client relationship is one of trust and confidence.  Such confidence only can be maintained if the lawyer acts competently and zealously pursues the client's interests within the bounds of the law.  "Zealously" does not mean mindlessly or unfairly or oppressively.  Rather, it is the duty of all lawyers to seek resolution of disputes at the least cost in time, expense and trauma to all parties and to the courts.

Terminology

"Belief" or "believes"  denotes that the person involved actually supposed the fact in question to be true.  A person's belief may be inferred from circumstances.

"Confidence"  denotes information protected by the lawyer-client privilege under applicable law.

"Contingent fee agreement"  denotes an agreement for the provision of legal services by a lawyer under which the amount of the lawyer's compensation is contingent in whole or in part upon the successful completion of the subject matter of the agreement, regardless of whether the fee is established by formula or is a fixed amount.

"Disclose" or "disclosure"  denotes communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.

"Firm" or "law firm"  denotes a lawyer or lawyers engaged in the private practice of law in a partnership, professional corporation, or other entity or in the legal department of a corporation, legal services organization or other entity.

"Fraud" or "fraudulent"  denotes conduct having a purpose to deceive and not merely negligent misrepresentation or failure to apprise another of relevant information.

"Knowingly" "known" or "knows"  denotes actual knowledge of the fact in question.  A person's knowledge may be inferred from circumstances.

"Partner"  denotes a lawyer who is a member of a partnership, or a shareholder or officer in a law firm organized as a professional corporation.

"Person"  denotes natural persons, partnerships, business corporations, not-for-profit corporations, public and quasi public corporations, municipal corporations, State and Federal governmental bodies and agencies, or any other type of lawfully existing entity.

"Reasonable" or "reasonably"  when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer.

"Reasonable belief" or "reasonably believes"  when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.

"Reasonably should know"  when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question.

"Secret"  denotes information gained in the professional relationship, that the client has requested be held inviolate or the revelation of which would be embarrassing to or would likely be detrimental to the client.

"Substantial"  when used in reference to degree or extent denotes a material matter of clear and weighty importance.

RULE 1.1                Competence  

(a)    A lawyer shall provide competent representation to a client.  Competent representation requires the legal knowledge, skill, thoroughness and preparation necessary for the representation.

(b)    A lawyer shall not represent a client in a legal matter in which the lawyer knows or reasonably should know that the lawyer is not competent to provide representation, without the association of another lawyer who is competent to provide such representation.

(c)    After accepting employment on behalf of a client, a lawyer shall not thereafter delegate to another lawyer not in the lawyer's firm the responsibility for performing or completing that employment, without the client's consent.

Adopted February 8, 1990, effective August 1, 1990.  

RULE 1.2                Scope of Representation  

(a)    A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as to the means by which they are to be pursued.  A lawyer shall abide by a client's decision whether to accept an offer of settlement of a matter.  In a criminal case, the lawyer shall abide by the client's decision, after disclosure by the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

(b)    A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.

(c)    A lawyer may limit the objectives of the representation if the client consents after disclosure.

(d)    A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good-faith effort to determine the validity, scope, meaning or application of the law.

(e)    A lawyer shall not present, participate in presenting, or threaten to present criminal charges or professional disciplinary actions to obtain an advantage in a civil matter.

(f)    In representation of a client, a lawyer shall not:

(1)   file a suit, assert a position, conduct a defense, delay a trial or take other action on behalf of the client when the lawyer knows or reasonably should know that such action would serve merely to harass or maliciously injure another;

(2)   advance a claim or defense the lawyer knows is unwarranted under existing law, except that the lawyer may advance such claim or defense if it can be supported by a good-faith argument for an extension, modification, or reversal of existing law; or

(3)   fail to disclose that which the lawyer is required by law to reveal.

(g)    A lawyer who knows a client has, in the course of representation, perpetrated a fraud upon a person or tribunal shall promptly call upon the client to rectify the same, and if the client refuses or is unable to do so, the lawyer shall reveal the fraud to the affected person or tribunal, except when the information is protected as a privileged communication.

(h)   A lawyer who knows that a person other than the client has perpetrated a fraud upon a tribunal shall promptly reveal the fraud to the tribunal.

(i)    When a lawyer knows that a client expects assistance not permitted by these Rules or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct.

Adopted February 8, 1990; effective August 1, 1990.  

RULE 1.3                Diligence

 A lawyer shall act with reasonable diligence and promptness in representing a client.

Adopted February 8, 1990; effective August 1, 1990.  

RULE 1.4                Communication

(a)    A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

(b)    A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Adopted February 8, 1990; effective August 1, 1990.  

RULE 1.5                Fees  

(a)    A lawyer's fee shall be reasonable.  The factors to be considered in determining the reasonableness of a fee include the following:

(1)   the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2)   the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3)   the fee customarily charged in the locality for similar legal services;

(4)   the amount involved and the results obtained;

(5)   the time limitations imposed by the client or by the circumstances;

(6)   the nature and length of the professional relationship with the client;

(7)   the experience, reputation, and ability of the lawyer or lawyers performing the services; and

(8)   whether the fee is fixed or contingent.

(b)    When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client before or within a reasonable time after commencing the representation.

(c)    A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law.  A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated.  Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.

(d)    A lawyer shall not enter into an arrangement for, charge, or collect:

(1)   any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a dissolution of marriage or upon the amount of maintenance or support, or property settlement in lieu thereof; provided, however, that the prohibition set forth in Rule 1.5(d)(1) shall not extend to representation in matters subsequent to final judgments in such cases;

(2)   a contingent fee for representing a defendant in a criminal case.

(e)    Notwithstanding Rule 1.5(c), a contingent fee agreement regarding the collection of commercial accounts or of insurance company subrogation claims may be made in accordance with the customs and practice in the locality for such legal services.

(f)    Except as provided in Rule 1.5(j), a lawyer shall not divide a fee for legal services with another lawyer who is not in the same firm, unless the client consents to employment of the other lawyer by signing a writing which discloses:

(1)   that division of fees will be made;

(2)   the basis upon which the division will be made, including the economic benefit to be received by the other lawyer as a result of the division; and

(3)   the responsibility to be assumed by the other lawyer for performance of the legal services in question.

(g)    A division of fees shall be made in proportion to the services performed and responsibility assumed by each lawyer, except where the primary service performed by one lawyer is the referral of the client to another lawyer and

(1)   the receiving lawyer discloses that the referring lawyer has received or will receive economic benefit from the referral and the extent and basis of such economic benefit, and

(2)   the referring lawyer agrees to assume the same legal responsibility for the performance of the services in question as would a partner of the receiving lawyer.

(h)   The total fee of the lawyers shall be reasonable.

(i)    For purposes of Rule 1.5 "economic benefit" shall include:

(1)   the amount of participation in the fee received with regard to the particular matter;

(2)   any other form of remuneration passing to the referring lawyer from the receiving lawyer, whether or not with regard to the particular matter; and

(3)   an established practice of referrals to and from or from and to the receiving lawyer and the referring lawyer.

(j)    Notwithstanding Rule 1.5(f), a payment may be made to a lawyer formerly in the firm, pursuant to a separation or retirement agreement.

Adopted February 8, 1990; effective August 1, 1990.  

RULE 1.6                Confidentiality of Information  

(a)    Except when required under Rule 1.6(b) or permitted under Rule 1.6(c), a lawyer shall not, during or after termination of the professional relationship with the client, use or reveal a confidence or secret of the client known to the lawyer unless the client consents after disclosure.

(b)    A lawyer shall reveal information about a client to the extent it appears necessary to prevent the client from committing an act that would result in death or serious bodily harm.

(c)    A lawyer may use or reveal:

(1)   confidences or secrets when permitted under these Rules or required by law or court order,

(2)   the intention of a client to commit a crime in circumstances other than those enumerated in Rule 1.6(b); or

(3)   confidences or secrets necessary to establish or collect the lawyer's fee or to defend the lawyer or the lawyer's employees or associates against an accusation of wrongful conduct.

(d)    The relationship of trained intervenor and a lawyer, judge, or a law student who seeks or receives assistance through the Lawyers' Assistance Program, Inc., shall be the same as that of lawyer and client for purposes of the application of Rule 8.1, Rule 8.3 and Rule 1.6.

(e)    Any information received by a lawyer in a formal proceeding before a trained intervenor, or panel of intervenors, of the Lawyers' Assistance Program, Inc., or in an intermediary program approved by a circuit court in which nondisciplinary complaints against judges or lawyers can be referred shall be deemed to have been received from a client for purposes of the application of Rules 1.6, 8.1 and 8.3.

Adopted February 8, 1990; effective August 1, 1990; amended February 2, 1994, effective immediately; amended May 24, 2006, effective immediately..  

RULE 1.7                Conflict of Interest: General Rule  

(a)    A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:

(1)   the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and

(2)   each client consents after disclosure.

(b)    A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

(1)   the lawyer reasonably believes the representation will not be adversely affected; and

(2)   the client consents after disclosure.

(c)    When representation of multiple clients in a single matter is undertaken, the disclosure shall include explanation of the implications of the common representation and the advantages and risks involved.

Adopted February 8, 1990; effective August 1, 1990.  

RULE 1.8                Conflict of Interest: Prohibited Transactions  

(a)    Unless the client has consented after disclosure, a lawyer shall not enter into a business transaction with the client if:

(1)   the lawyer knows or reasonably should know that the lawyer and the client have or may have conflicting interests therein; or

(2)   the client expects the lawyer to exercise the lawyer's professional judgment therein for the protection of the client.

(b)    Unless all aspects of the matter giving rise to the employment have been concluded, a lawyer shall not enter into any arrangement or understanding with a client or a prospective client by which the lawyer acquires an interest in publication, media, or other literary rights with respect to the subject matter of employment or proposed employment.

(c)    A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as parent, child, sibling or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee.

(d)    While representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial assistance to the client, except that a lawyer may advance or guarantee the expenses of litigation, including, but not limited to, court costs, expenses of investigation, expenses of medical examination, and costs of obtaining and presenting evidence if:

(1)   the client remains ultimately liable for such expenses; or

(2)   the repayment is contingent on the outcome of the matter; or

(3)   the client is indigent.

(e)    A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregate agreement as to guilty or nolo contendere pleas, unless each client consents after disclosure, including disclosure of the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.

(f)    A lawyer shall not make an agreement with a client prospectively limiting the lawyer's liability to the client unless such an agreement is permitted by law and the client is independently represented in making the agreement.

(g)    A lawyer shall not settle a claim against the lawyer made by an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in connection therewith.

(h)   A lawyer shall not enter into an agreement with a client or former client limiting or purporting to limit the right of the client or former client to file or pursue any complaint before the Attorney Registration and Disciplinary Commission.

(i)    A lawyer shall not acquire a proprietary interest in the cause of action or the subject matter of litigation which is being conducted for a client except by:

(1)   acquiring a lien granted by law to secure fees or expenses; or

(2)   contracting with a client for a reasonable contingent fee in a civil case.

Adopted February 8, 1990; effective August 1, 1990.  

RULE 1.9                Conflict of Interest: Former Client  

(a)    A lawyer who has formerly represented a client in a matter shall not thereafter:

(1)   represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client, unless the former client consents after disclosure; or

(2)   use information relating to the representation to the disadvantage of the former client, unless:

(A)   such use is permitted by Rule 1.6; or

(B)   the information has become generally known.

Adopted February 8, 1990; effective August 1, 1990.

RULE 1.10      Imputed Disqualification: General Rule  

(a)    No lawyer associated with a firm shall represent a client when the lawyer knows or reasonably should know that another lawyer associated with that firm would be prohibited from doing so by Rules 1.7, 1.8(c) or 1.9, except as permitted by Rules 1.10(b), (c) or (d), or by Rule 1.11 or Rule 1.12.

(b)    When a lawyer becomes associated with a firm, the firm may not represent a person in a matter that the firm knows or reasonably should know is the same or substantially related to a matter in which the newly associated lawyer, or a firm with which that lawyer was associated, had previously represented a client whose interests are materially adverse to that person unless:

(1)   the newly associated lawyer has no information protected by Rule 1.6 or Rule 1.9 that is material to the matter; or

(2)   the newly associated lawyer is screened from any participation in the matter.

(c)    When a lawyer has terminated an association with a firm, the firm may thereafter represent a person with interests materially adverse to those of a client represented by the formerly associated lawyer if:

(1)   the matter is not the same or substantially related to that in which the formerly associated lawyer represented the client; and

(2)   no lawyer remaining in the firm has information protected by Rule 1.6 and Rule 1.10 that is material to the matter.

(d)    A disqualification prescribed by Rule 1.10 may be waived by the affected client under the conditions stated in Rule 1.7.

(e)    For purposes of Rule 1.10, Rule 1.11, and Rule 1.12, a lawyer in a firm will be deemed to have been screened from any participation in a matter if:

(1)   the lawyer has been isolated from confidences, secrets, and material knowledge concerning the matter;

(2)   the lawyer has been isolated from all contact with the client or any agent, officer, or employee of the client and any witness for or against the client;

(3)   the lawyer and the firm have been precluded from discussing the matter with each other; and

(4)   the firm has taken affirmative steps to accomplish the foregoing.

Adopted February 8, 1990; effective August 1, 1990.  

RULE 1.11      Successive Government and Private Employment  

(a)    Except as otherwise expressly permitted by law, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after disclosure.  No lawyer in a firm with which that lawyer is associated and who knows or reasonably should know of the lawyer's prior participation may undertake or continue representation in such a matter unless:

(1)   the disqualified lawyer is screened from any participation in the matter and is apportioned no specific share of the fee therefrom; and

(2)   written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of Rule 1.11.

(b)    Except as otherwise permitted by law, a lawyer having information that the lawyer knows is confidential government information about a person, acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person.  A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is screened from any participation in the matter and is apportioned no specific share of the fee therefrom.

(c)    Except as otherwise expressly permitted by law, a lawyer serving as a public officer or employee shall not:

(1)   participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer's stead in the matter; or

(2)   negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally or substantially.

(d)    As used in Rule 1.11, the term "matter" denotes:

(1)   any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, offset or other particular matter involving a specific party or parties; and

(2)   any other matter covered by the conflict of interest rules of the appropriate government agency.

(e)    As used in Rule 1.11, the term "confidential government information" denotes information which has been obtained under governmental authority and which, at the time Rule 1.11 is applied, the government is prohibited by law from revealing to the public or has a legal privilege not to reveal, and which is not otherwise available to the public.

Adopted February 8, 1990; effective August 1, 1990.  

RULE 1.12      Former Judge or Arbitrator  

(a)    Except as provided in Rule 1.12(d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator, or law clerk to such a person, unless all parties to the proceeding consent after disclosure.

(b)    A lawyer shall not negotiate for employment with any person who is involved as a party or as a lawyer for a party in a matter in which the lawyer is participating personally and substantially as a judge, other adjudicative officer, or arbitrator.  A lawyer serving as a law clerk to a judge, other adjudicative officer, or arbitrator may negotiate for employment with a party or a lawyer involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge, other adjudicative officer, or arbitrator.

(c)    If a lawyer is disqualified by Rule 1.12(a), a lawyer in the firm with which that lawyer is associated who knows or reasonably should know of that disqualification shall not undertake or continue representation in the matter unless:

(1)   the disqualified lawyer is screened from any participation in the matter and is apportioned no specific share of the fee therefrom; and

(2)   written notice is promptly given to the appropriate tribunal to enable it to ascertain compliance with the provisions of Rule 1.12.

(d)    An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party.

Adopted February 8, 1990; effective August 1, 1990.  

RULE 1.13      Organization as Client  

(a)    A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.

(b)    If a lawyer for an organization knows that an officer, employee, or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and is likely to result in substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the best interest of the organization.  In determining how to proceed, the lawyer shall give due consideration to the seriousness of the violation and its consequences, the scope and nature of the lawyer's representation, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters, and any other relevant considerations.  Any measures taken shall be designed to minimize disruption of the organization and the risk of revealing information relating to the representation to persons outside the organization.  Such measures may include among others:

(1)   asking reconsideration of the matter;

(2)   advising that a separate legal opinion on the matter be sought for representation to appropriate authority in the organization; and

(3)   referring the matter to higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest authority that can act in behalf of the organization as determined by applicable law.

(c)    If, despite the lawyer's efforts in accordance with paragraph (b), the highest authority that can act on behalf of the organization insists upon action, or a refusal to act, that is clearly a violation of the law and is likely to result in substantial injury to the organization, the lawyer may resign in accordance with Rule 1.16.

(d)    In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when it is apparent that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing.

(e)    A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7.  If the organization's consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.

Adopted February 8, 1990; effective August 1, 1990.

RULE 1.14      Client Under a Disability

 (a)    When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability, or some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship.

(b)    A lawyer may seek the appointment of a guardian or take other protective action with respect to a client, only when the lawyer reasonably believes that the client cannot adequately act in the client's own interest.

Adopted February 8, 1990; effective August 1, 1990.  

Rule 1.15. Safekeeping Property

(a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept deposited in a one or more separate account and identifiable interest- or dividend- bearing client trust accounts maintained at an eligible financial institution in the state where the lawyer’s office is situated, or elsewhere with the informed consent of the client or third person. For the purposes of this Rule, a client trust account means an IOLTA account as defined in paragraph (i)(2), or a separate, interest-bearing non-IOLTA client trust account established to hold the funds of a client or third person as provided in paragraph (f). Funds of clients or third persons shall not be deposited in a non-interest-bearing or nondividend- bearing account. Other, tangible property shall be identified as such and appropriately safeguarded. Complete records of such client trust account funds and other property shall be kept by the lawyer and shall be preserved for a period of seven years after termination of the representation.

Maintenance of complete records of client trust accounts shall require that a lawyer:

(1) prepare and maintain receipt and disbursement journals for all client trust accounts required by this Rule containing a record of deposits and withdrawals from client trust accounts specifically identifying the date, source, and description of each item deposited, and the date, payee and purpose of each disbursement;

(2) prepare and maintain contemporaneous ledger records for all client trust accounts showing, for each separate trust client or beneficiary, the source of all funds deposited, the date of each deposit, the names of all persons for whom the funds are or were held, the amount of such funds, the dates, descriptions and amounts of charges or withdrawals, and the names of all persons to whom such funds were disbursed;

(3) maintain copies of all accountings to clients or third persons showing the disbursement of funds to them or on their behalf, along with copies of those portions of clients’ files that are reasonably necessary for a complete understanding of the financial transactions pertaining to them;

(4) maintain all client trust account checkbook registers, check stubs, bank statements, records of deposit, and checks or other records of debits;

(5) maintain copies of all retainer and compensation agreements with clients;

(6) maintain copies of all bills rendered to clients for legal fees and expenses;

(7) prepare and maintain reconciliation reports of all client trust accounts, on at least a quarterly basis, including reconciliations of ledger balances with client trust account balances;

(8) make appropriate arrangements for the maintenance of the records in the event of the closing, sale, dissolution, or merger of a law practice.

Records required by this Rule may be maintained by electronic, photographic, or other media provided that printed copies can be produced, and the records are readily accessible to the lawyer.

Each client trust account shall be maintained only in an eligible financial institution selected by the lawyer in the exercise of ordinary prudence.

(b) A lawyer may deposit the lawyer’s own funds in a client trust account for the sole purpose of paying bank service charges on that account, but only in an amount necessary for that purpose.

(c) A lawyer shall deposit in a client trust account funds received to secure payment of legal fees and expenses, to be withdrawn by the lawyer only as fees are earned and expenses incurred. Funds received as a fixed fee, a general retainer, or an advance payment retainer shall be deposited in the lawyer’s general account or other account belonging to the lawyer. An advance payment retainer may be used only when necessary to accomplish some purpose for the client that cannot be accomplished by using a security retainer. An agreement for an advance payment retainer shall be in a writing signed by the client that uses the term “advance payment retainer” to describe the retainer, and states the following:

(1) the special purpose for the advance payment retainer and an explanation why it is advantageous to the client;

(2) that the retainer will not be held in a client trust account, that it will become the property of the lawyer upon payment, and that it will be deposited in the lawyer’s general account;

(3) the manner in which the retainer will be applied for services rendered and expenses incurred;

(4) that any portion of the retainer that is not earned or required for expenses will be refunded to the client;

(5) that the client has the option to employ a security retainer, provided, however, that if the lawyer is unwilling to represent the client without receiving an advance payment retainer, the agreement must so state and provide the lawyer’s reasons for that condition.

(d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

(e) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute.

(f) All nominal or short-term funds of clients or third persons held by a lawyer or law firm which are nominal in amount or are expected to be held for a short period of time, including advances for costs and expenses, and funds belonging in part to a client or third person and in part presently or potentially to the lawyer or law firm, shall be deposited in one or more pooled interest- or dividend-bearing trust accounts known as Interest on Lawyers’ Trust Accounts (“IOLTA accounts”), established with an eligible financial institution selected by a lawyer or law firm in the exercise of ordinary prudence, and with the Lawyers Trust Fund of Illinois designated as income beneficiary. IOLTA accounts, as defined in paragraph (i)(2). A lawyer or law firm shall deposit all funds of clients or third persons which are not nominal in amount or expected to be held for a short period of time into a separate interest- or dividend-bearing client trust account with the client designated as income beneficiary. Funds of clients or third persons shall not be deposited in a non-interestbearing or non-dividend-bearing account. Each IOLTA account shall comply with the following provisions:

(1) Each lawyer or law firm in receipt of nominal or short-term client funds shall establish one or more IOLTA accounts with an eligible financial institution authorized by federal or state law to do business in the state of Illinois. An eligible financial institution is a bank or a savings bank insured by the Federal Deposit Insurance Corporation or an open-end investment company registered with the Securities and Exchange Commission, and which offers IOLTA accounts within the requirements of this Rule as administered by the Lawyers Trust Fund of Illinois.

(2) Eligible institutions shall maintain IOLTA accounts that pay the highest interest rate or dividend available from the institution to its non-IOLTA account customers when IOLTA accounts meet or exceed the same minimum balance or other account eligibility guidelines, if any. In determining the highest interest rate or dividend generally available from the institution to its non-IOLTA accounts, eligible institutions may consider factors, in addition to the IOLTA account balance, customarily considered by the institution when setting interest rates or dividends for its customers, provided that such factors do not discriminate between IOLTA accounts and accounts of non- IOLTA customers, and that these factors do not include that the account is an IOLTA account.

(3) An IOLTA account that meets the highest comparable rate or dividend standard set forth in Pparagraph (f)(2) must use one of the identified account options as an IOLTA account, or pay the equivalent yield on an existing IOLTA account in lieu of using the highest-yield bank product:

(a) a checking account paying preferred interest rates, such as money market or indexed rates, or any other suitable interest-bearing deposit account offered by the eligible institution to its non-IOLTA customers.

(b) for accounts with balances of $100,000 or more, a business checking account with automated investment feature, such as an overnight sweep and investment in repurchase agreements fully collateralized by U.S. Government securities as defined in paragraph (h).

(c) for accounts with balances of $100,000 or more, a money market fund with, or tied to, check-writing capacity, that must be solely invested in U.S. Government securities or securities fully collateralized by U.S. Government securities, and that has total assets of at least $250 million.

(4) As an alternative to the account options in paragraph (f)(3), the financial institution may pay a “safe harbor” yield equal to 70% of the Federal Funds Target Rate or 1.0%, whichever is higher.

(5) Each lawyer or law firm shall direct the eligible financial institution to remit monthly earnings on the IOLTA account directly to the Lawyers Trust Fund of Illinois. For each individual IOLTA account, the eligible financial institution shall provide: a statement transmitted with each remittance showing the name of the lawyer or law firm directing that the remittance be sent; the account number; the remittance period; the rate of interest applied; the account balance on which the interest was calculated; the reasonable service fee(s) if any; the gross earnings for the remittance period; and the net amount of earnings remitted. Remittances shall be sent to the Lawyers Trust Fund electronically unless otherwise agreed. The financial institution may assess only allowable reasonable fees, as defined in paragraph (i)(8). Fees in excess of the earnings accrued on an individual IOLTA account for any month shall not be taken from earnings accrued on other IOLTA accounts or from the principal of the account.

(6) Each lawyer or law firm shall deposit into such interestbearing trust accounts all clients’ funds which are nominal in amount or are expected to be held for a short period of time.

(7) The decision as to whether funds are nominal in amount or are expected to be held for a short period of time rests exclusively in the sound judgment of the lawyer or law firm, and no charge of ethical impropriety or other breach of professional conduct shall attend a lawyer’s or law firm’s judgment on what is nominal or short term.

(g) A lawyer or law firm should exercise reasonable judgment in determining whether funds of a client or third person are nominal in mount or are expected to be held for a short period of time. No charge of ethical impropriety or other breach of professional conduct shall attend to a lawyer’s or law firm’s exercise of reasonable judgment under this rule or decision to place client funds in an IOLTA account or a non-IOLTA client trust account on the basis of that determination. Ordinarily, in determining the type of account into which to deposit particular funds for a client or third person, a lawyer or a law firm shall take into consideration the following factors:

(1) the amount of interest which the funds would earn during the period they are expected to be held and the likelihood of delay in the relevant transaction or proceeding;

(2) the cost of establishing and administering the account, including the cost of the lawyer’s services;

(3) the capability of the financial institution, through subaccounting, to calculate and pay interest earned by each client’s funds, net of any transaction costs, to the individual client.

(h) All trust accounts, whether IOLTA or non-IOLTA, shall be established in compliance with the following provisions on dishonored instrument notification:

(1) A lawyer shall maintain trust accounts only in eligible financial institutions that have filed with the Attorney Registration and Disciplinary Commission an agreement, in a form provided by the Commission, to report to the Commission in the event any properly payable instrument is presented against a client trust account containing insufficient funds, irrespective of whether or not the instrument is honored. Any such agreement shall apply to all branches of the financial institution and shall not be canceled except upon 30 days notice in writing to the Commission. The Commission shall annually publish a list of financial institutions that have agreed to comply with this rule and shall establish rules and procedures governing amendments to the list.

(2) The overdraft notification agreement shall provide that all reports made by the financial institution shall be in the following format:

(a) In the case of a dishonored instrument, the report shall be identical to the overdraft notice customarily forwarded to the depositor, and should include a copy of the dishonored instrument, if such a copy is normally provided to depositors; and

(b) In the case of instruments that are presented against insufficient funds but which instruments are honored, the report shall identify the financial institution, the lawyer or law firm, the account number, the date of presentation for payment and the date paid, as well as the amount of overdraft created thereby.

    Such reports shall be made simultaneously with, and within the time provided by law for, notice of dishonor, if any. If an instrument presented against insufficient funds is honored, then the report shall be made within five banking days of the date of presentation for payment against insufficient funds.

(3) Every lawyer practicing or admitted to practice in this jurisdiction shall, as a condition thereof, be conclusively deemed to have consented to the reporting and production requirements mandated by this Rule.

(4) Nothing herein shall preclude a financial institution from charging a particular lawyer or law firm for the reasonable cost of producing the reports and records required by paragraph (h) of this Rule. Fees charged for the reasonable cost of producing the reports and records required by paragraph (h) are the sole responsibility of the lawyer or law firm, and are not allowable reasonable fees for IOLTA accounts as those are defined in paragraph (i)(8).

(h) (i) Definitions

(1) “Funds” denotes any form of money, including cash, payment instruments such as checks, money orders or sales drafts, and electronic fund transfers.

(1) (2) “IOLTA account” means an a pooled interest- or dividend-bearing client trust account, established with an eligible financial institution with the Lawyers Trust Fund of Illinois designated as income beneficiary, benefitting the Lawyers Trust Fund of Illinois, established in an eligible institution for the deposit of nominal or short-term funds of clients or third persons as defined in paragraph (f) and from which funds may be withdrawn upon request as soon as permitted by law.

(3) “Eligible financial institution” is a bank or a savings bank insured by the Federal Deposit Insurance Corporation or an openend investment company registered with the Securities and Exchange Commission that agrees to provide dishonored instrument notification regarding any type of client trust account as provided in paragraph (h) of this Rule; and that with respect to IOLTA accounts, offers IOLTA accounts within the requirements of paragraph (f) of this Rule.

(4) “Properly payable” refers to an instrument which, if presented in the normal course of business, is in a form requiring payment under the laws of this jurisdiction.

(2) (5) “Money market fund” is an investment company registered under the Investment Company Act of 1940, as amended, that is qualified to hold itself out to investors as a money market fund or the equivalent of a money market fund under Rules and Regulations adopted by the Securities and Exchange Commission pursuant to said Act.

(3) (6) “U.S. Government securities” refers to U.S. Treasury obligations and obligations issued by or guaranteed as to principal and interest by any AAA-rated United States agency or instrumentality thereof. A daily overnight financial repurchase agreement (“repo”) may be established only with an institution that is deemed to be “well capitalized” or “adequately capitalized” as defined by applicable federal statutes and regulations.

(4) (7) “Safe harbor” is a yield that if paid by the financial institution on IOLTA accounts shall be deemed as a comparable return in compliance with this Rule. Such yield shall be calculated as 70% of the Federal Funds Target Rate as reported in the Wall Street Journal on the first business day of the calendar month.

(5) (8) “Allowable reasonable fees” for IOLTA accounts are per-check charges, per deposit charges, a fee in lieu of a minimum balance, federal deposit insurance fees, automated investment (“sweep”) fees, and a reasonable maintenance fee, if those fees are charged on comparable bank accounts maintained by non-IOLTA depositors. All other fees are the responsibility of, and may be charged to, the lawyer or law firm maintaining the IOLTA account.

(i) (j) In the closing of a real estate transaction, a lawyer’s disbursement of funds deposited but not collected shall not violate his or her duty pursuant to this Rule 1.15 if, prior to the closing, the lawyer has established a segregated Real Estate Funds Account (REFA) maintained solely for the receipt and disbursement of such funds, has deposited such funds into a REFA, and:

(1) is acting as a closing agent pursuant to an insured closing letter for a title insurance company licensed in the State of Illinois and uses for such funds a segregated REFA maintained solely for such title insurance business; or

(2) has met the “good-funds” requirements. The good-funds requirements shall be met if the bank in which the REFA was established has agreed in a writing directed to the lawyer to honor all disbursement orders drawn on that REFA for all transactions up to a specified dollar amount not less than the total amount being deposited in good funds. Good funds shall include only the following forms of deposits: (a) a certified check, (b) a check issued by the State of Illinois, the United States, or a political subdivision of the State of Illinois or the United States, (c) a cashier’s check, teller’s check, bank money order, or official bank check drawn on or issued by a financial institution insured by the Federal Deposit Insurance Corporation or a comparable agency of the federal or state government, (d) a check drawn on the trust account of any lawyer or real estate broker licensed under the laws of any state, (e) a personal check or checks in an aggregate amount not exceeding $5,000 per closing if the lawyer making the deposit has reasonable and prudent grounds to believe that the deposit will be irrevocably credited to the REFA, (f) a check drawn on the account of or issued by a lender approved by the United States Department of Housing and Urban Development as either a supervised or a nonsupervised mortgagee as defined in 24 C.F.R. § 202.2, (g) a check from a title insurance company licensed in the State of Illinois, or from a title insurance agent of the title insurance company, provided that the title insurance company has guaranteed the funds of that title insurance agent. Without limiting the rights of the lawyer against any person, it shall be the responsibility of the disbursing lawyer to reimburse the trust account for such funds that are not collected and for any fees, charges and interest assessed by the paying bank on account of such funds being uncollected.

 

         Adopted July 1, 2009, effective January 1, 2010; amended July 1, 2011, effective September 1, 2011.


Comment

[1] A lawyer should hold property of others with the care required of a professional fiduciary. Securities should be kept in a safe deposit box, except when some other form of safekeeping is warranted by special circumstances. All property that is the property of clients or third persons, including prospective clients, must be kept separate from the lawyer’s business and personal property and, if monies, in one or more client trust accounts. Client trust accounts should be made identifiable through their designation as “client trust account” or “client funds account” or words of similar import indicating the fiduciary nature of the account. Separate trust accounts may be warranted when administering estate monies or acting in similar fiduciary capacities. A lawyer should maintain on a current basis books and records in accordance with generally accepted accounting practice complete records of client trust account funds as required by paragraph (a), including subparagraphs (1) through (8). These requirements articulate recordkeeping principles that provide direction to a lawyer in the handling of funds entrusted to the lawyer by a client or third person. Compliance with these requirements will benefit the attorney and the client or third party as these fiduciary funds will be safeguarded and documentation will be available to fulfill the lawyer’s fiduciary obligation to provide an accounting to the owners of the funds and to refute any charge that the funds were handled improperly.

[2] While normally it is impermissible to commingle the lawyer’s own funds with client funds, paragraph (b) provides that it is permissible when necessary to pay bank service charges on that account. Accurate records must be kept regarding which part of the funds are the lawyer’s.

[3] Lawyers often receive funds from which the lawyer’s fee will be paid. The lawyer is not required to remit to the client funds that the lawyer reasonably believes represent fees owed. However, a lawyer may not hold funds to coerce a client into accepting the lawyer’s contention. The disputed portion of the funds must be kept in a trust account and the lawyer should suggest means for prompt resolution of the dispute, such as arbitration. The undisputed portion of the funds shall be promptly distributed. Specific guidance concerning client trust accounts is provided in the Client Trust Account Handbook published by the Illinois Attorney Registration and Disciplinary Commission as well as on the website of the Illinois Attorney Registration and Disciplinary Commission.

[3A] Paragraph (c) relates to legal fees and expenses that have been paid in advance. The reasonableness, structure, and division of legal fees are governed by Rule 1.5 and other applicable law.

[3B] Paragraph (c) must be read in conjunction with Dowling v. Chicago Options Associates, Inc., 226 Ill. 2d 277 (2007). In Dowling, the Court distinguished different types of retainers. It recognized advance payment retainers and approved their use in limited circumstances where the lawyer and client agree that a retainer should become the property of the lawyer upon payment. Prior to Dowling, the Court recognized only two types of retainers. The first, a general retainer (also described as a “true,” “engagement,” or “classic” retainer) is paid by a client to the lawyer in order to ensure the lawyer’s availability during a specific period of time or for a specific matter. This type of retainer is earned when paid and immediately becomes property of the lawyer, regardless of whether the lawyer ever actually performs any services for the client. The second, a “security” retainer, secures payment for future services and expense, and must be deposited in a client trust account pursuant to paragraph (a). Funds in a security retainer remain the property of the client until applied for services rendered or expenses incurred. Any unapplied funds are refunded to the client. Any written retainer agreement should clearly define the kind of retainer being paid. If the parties agree that the client will pay a security retainer, that term should be used in any written agreement, which should also provide that the funds remain the property of the client until applied for services rendered or expenses incurred and that the funds will be deposited in a client trust account. If the parties’ intent is not evident, an agreement for a retainer will be construed as providing for a security retainer.

[3C] An advance payment retainer is a present payment to the lawyer in exchange for the commitment to provide legal services in the future. Ownership of this retainer passes to the lawyer immediately upon payment; and the retainer may not be deposited into a client trust account because a lawyer may not commingle property of a client with the lawyer’s own property. However, any portion of an advance payment retainer that is not earned must be refunded to the client. An advance payment retainer should be used sparingly, only when necessary to accomplish a purpose for the client that cannot be accomplished by using a security retainer. An advance payment retainer agreement must be in a written agreement signed by the client that contains the elements listed in paragraph (c). An advance payment retainer is distinguished from a fixed fee (also described as a “flat” or “lump-sum” fee), where the lawyer agrees to provide a specific service (e.g., defense of a criminal charge, a real estate closing, or preparation of a will or trust) for a fixed amount. Unlike an advance payment retainer, a fixed fee is generally not subject to the obligation to refund any portion to the client, although a fixed fee is subject, like all fees, to the requirement of Rule 1.5(a) that a lawyer may not charge or collect an unreasonable fee.

[3D] The type of retainer that is appropriate will depend on the circumstances of each case. The guiding principle in the choice of the type of retainer is protection of the client’s interests. In the vast majority of cases, this will dictate that funds paid to retain a lawyer will be considered a security retainer and placed in a client trust account, pursuant to this Rule.

[4] Paragraph (e) also recognizes that third parties may have lawful claims against specific funds or other property in a lawyer’s custody, such as a client’s creditor who has a lien on funds recovered in a personal injury action. A lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client. In such cases, when the third-party claim is not frivolous under applicable law, the lawyer must refuse to surrender the property to the client until the claims are resolved. A lawyer should not unilaterally assume to arbitrate a dispute between the client and the third party, but, when there are substantial grounds for dispute as to the person entitled to the funds, the lawyer may file an action to have a court resolve the dispute.

[5] The obligations of a lawyer under this Rule are independentof those arising from activity other than rendering legal services. For example, a lawyer who serves only as an escrow agent is governed by the applicable law relating to fiduciaries even though the lawyer does not render legal services in the transaction and is not governed by this Rule.

[6] Paragraphs (a), (f) and (g) requires that certain client funds nominal or short-term funds belonging to clients or third persons be deposited in a pooled, interest-bearing trust account one or more IOLTA accounts as defined in paragraph (i)(2) and provides that the interest earned on any such accounts shall be submitted to the Lawyers Trust Fund of Illinois. The Lawyers Trust Fund of Illinois will disburse the funds so received to qualifying organizations and programs to be used for the purposes set forth in its by-laws. The purposes of the Lawyers Trust Fund of Illinois may not be changed without the approval of the Supreme Court of Illinois. The decision as to whether funds are nominal or short-term shall be in the sole discretion reasonable judgment of the depositing lawyer or law firm. Client and third-person funds that are neither nominal or short-term shall may continue to be deposited in separate, interest- or dividend-bearing client trust accounts for the benefit of the client as set forth in Pparagraphs (a) and (f).

[7] Paragraph (h) requires that lawyers maintain trust accounts only in financial institutions that have agreed to report trust account overdrafts to the ARDC. The trust account overdraft notification program is intended to provide early detection of problems in lawyers’ trust accounts, so that errors by lawyers and/or banks may be corrected and serious lawyer transgressions pursued.

[8] Paragraph (i) provides definitions that pertain specifically to Rule 1.15. Paragraph (1) defines expansively the meaning of “funds,” to include any form of money, including electronic fund transfers. Paragraph (2) defines an IOLTA account and paragraph (3) defines an eligible financial institution for purposes of the overdraft notification and IOLTA programs. Paragraph (4) defines “properly payable,” a term used in the overdraft notification provisions in paragraph (h)(1). Paragraphs (5) through (8) define terms pertaining to IOLTA accounts.

[7] [9] Paragraph (i j) applies only to the closing of real estate transactions and adopts the “good-funds” doctrine. That doctrine provides for the disbursement of funds deposited but not yet collected if the lawyer has already established an appropriate Real Estate Funds Account and otherwise fulfills all of the requirements contained in the Rule.

       Adopted July 1, 2009, effective January 1, 2010; amended July 1, 2011, effective September 1, 2011.

   RULE 1.16      Declining or Terminating Representation

 (a)    A lawyer representing a client before a tribunal shall withdraw from employment (with permission of the tribunal if such permission is required), and a lawyer representing a client in other matters shall withdraw from employment, if:

(1)   the lawyer knows or reasonably should know that the client is bringing the legal action, conducting the defense, or asserting a position in the litigation, or is otherwise having steps taken, merely for the purpose of harassing or maliciously injuring any person;

(2)   the lawyer knows or reasonably should know that such continued employment will result of violation of these Rules;

(3)   the lawyer's mental or physical condition renders it unreasonably difficult for the lawyer to carry out the employment effectively; or

(4)   the lawyer is discharged by the client.

(b)    Except as required in Rule 1.16(a), a lawyer shall not request permission to withdraw in matters pending before a tribunal, and shall not withdraw in other matters, unless such request or such withdrawal is because:

(1)   the client:

(A)   insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law;

(B)   seeks to pursue an illegal course of conduct;

(C)   insists that the lawyer pursue a course of conduct that is illegal or prohibited by these Rules;

(D)   by other conduct renders it unreasonably difficult for the lawyer to carry out the employment effectively;

(E)   insists, in a matter not pending before a tribunal, that the lawyer engage in conduct that is contrary to the judgment and advice of the lawyer although not prohibited by these Rules; or

(F)   substantially fails to fulfill an agreement or obligation to the lawyer as to expenses or fees;

(2)   the lawyer's inability to work with co‑counsel indicates that the best interests of the client likely will be served by withdrawal;

(3)   the client consents to termination of the lawyer's employment after disclosure; or

(4)   the lawyer reasonably believes that a tribunal will, in a proceeding pending before the tribunal, find the existence of other good cause for withdrawal.

(c)    If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a proceeding before that tribunal without its permission.

(d)    In any event, a lawyer shall not withdraw from employment until the lawyer has taken reasonable steps to avoid foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules.

(e)    A lawyer who withdraws from employment shall refund promptly any part of a fee paid in advance that has not been earned.

Adopted February 8, 1990, effective August 1, 1990.  

Rule 1.17 Sale or Transfer of a Law Practice

     A lawyer, the estate of a deceased lawyer, or the guardian or authorized representative of a disabled lawyer may transfer or sell, and a lawyer or a law firm may accept or purchase, a law practice, including goodwill, if the following conditions are satisfied.

 (a) The lawyer whose practice is transferred or sold ceases to engage in the private practice of law in all or part of Illinois due to:

  (1) death or disability;

  (2) retirement;

  (3) declaration of inactive status with the ARDC;

  (4) becoming a member of the judiciary;

  (5) full-time government employment;

 (6) moving to an in-house counsel or other position of employment not involving the private practice of law; or

  (7) a decision to no longer be actively engaged in the private practice of law on a fee representation basis in the geographic area in which the practice has been conducted.

(b) The entire practice is transferred or sold to one or more lawyers or law firms.

(c) No less than 90 days prior to the expected date of closing or transfer, written notice shall be given to each of the seller’s current clients via certified mail regarding:

(1) the proposed sale;

(2) the client’s right to retain other counsel or to take possession of the file;

(3) the fact that the client’s consent to the transfer of the client’s files will be presumed if the client does not take any action or does not otherwise object within 90 days of the receipt of the notice; and

(4) the expected date of final closing or transfer.

If a client cannot be given notice, the representation of that client may be transferred to the purchaser only upon entry of an order so authorizing by a court having jurisdiction. The seller may disclose to the court in camera information relating to the representation only to the extent necessary to obtain an order authorizing the transfer of a file.

(d) The fees charged clients shall not be increased by reason of the sale.

(e) Admission to or retirement from a law partnership or professional association, retirement plans and similar arrangements, and a sale of tangible assets of a law practice, do not constitute a sale or purchase governed by this rule.

(f) Lawyers who sell or transfer their law practice are subject to the ethical standards applicable to involving another lawyer in the representation of a client. These include, for example, Rule 1.1 (Competence); Rule 1.5 (Fees); Rule 1.6 (Confidentiality of Information); Rule 1.7 (Conflict of Interest: General Rule); Rule 1.9 (Conflict of Interest: Former Client).

(g) This rule does not apply to the transfers of legal representation between lawyers when such transfers are unrelated to the sale of the practice.

Adopted May 23, 2005, effective immediately.

RULE 2.1                Advisor

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.  In rendering advice, a lawyer may refer not only to law but to other considerations, such as moral, economic, social and political factors that may be relevant to the client's situation.

Adopted February 8, 1990, effective August 1, 1990.  

RULE 2.2                Reserved

RULE 2.3                Evaluation for Use by Third Persons

 (a)    A lawyer may undertake an evaluation of a matter affecting a client for the use of someone other than the client if:

(1)   the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer's relationship with the client; and

(2)   the client consents after disclosure.

(b)    Except as disclosure is required in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by Rule 1.6.

Adopted February 8, 1990, effective August 1, 1990.  

RULE 3.1                Meritorious Claims and Contentions  

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good-faith argument for an extension, modification or reversal of existing law.  A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

Adopted February 8, 1990, effective August 1, 1990.  

RULE 3.2                Expediting Litigation

 A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

Adopted February 8, 1990, effective August 1, 1990.

RULE 3.3                Conduct Before a Tribunal

(a)    In appearing in a professional capacity before a tribunal, a lawyer shall not:

(1)   make a statement of material fact or law to a tribunal which the lawyer knows or reasonably should know is false;

(2)   fail to disclose to a tribunal a material fact known to the lawyer when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

(3)   fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;

(4)   offer evidence that the lawyer knows to be false.  If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures;

(5)   participate in the creation or preservation of evidence when the lawyer knows or reasonably should know the evidence is false;

(6)   counsel or assist the client in conduct the lawyer knows to be illegal or fraudulent;

(7)   engage in other illegal conduct or conduct in violation of these Rules;

(8)   fail to disclose the identities of the clients represented and of the persons who employed the lawyer unless such information is privileged or irrelevant;

(9)   intentionally degrade a witness or other person by stating or alluding to personal facts concerning that person which are not relevant to the case;

(10) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused, but a lawyer may argue, on analysis of evidence, for any position or conclusion with respect to the matter stated herein;

(11) refuse to accede to reasonable requests of opposing counsel that do not prejudice the rights of the client;

(12) fail to use reasonable efforts to restrain and to prevent clients from doing those things that the lawyer ought not to do;

(13) suppress any evidence that the lawyer or client has a legal obligation to reveal or produce;

(14) advise or cause a person to become unavailable as a witness by leaving the jurisdiction or making secret their whereabouts within the jurisdiction; or

(15) pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the witness' testimony or the outcome of the case, but a lawyer may advance, guarantee, or acquiesce in the payment of expenses reasonably incurred in attending or testifying, and a reasonable fee for the professional services of an expert witness.

(b)    The duties stated in paragraph (a) are continuing duties and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

(c)    A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.

(d)    In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.

Adopted February 8, 1990, effective August 1, 1990.  

RULE 3.4                Fairness to Opposing Party and Counsel

(a)    A lawyer shall not:

(1)   unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.  A lawyer shall not counsel or assist another person to do any such act;

(2)   falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

(3)   request a person other than a client to refrain from voluntarily giving relevant information to another party unless:

(A)   the person is a relative or an employee or other agent of a client; and

(B)   the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.

Adopted February 8, 1990, effective August 1, 1990.  

RULE 3.5                Impartiality and Decorum of the Tribunal

 (a)    Before the trial of a case, a lawyer connected therewith shall not communicate with or cause another to communicate with anyone the lawyer knows to be a member of the venire from which the jury will be selected for the trial of the case.

(b)    During the trial of a case:

(1)   a lawyer connected therewith shall not communicate with or cause another to communicate with a juror; and

(2)   a lawyer who is not connected therewith shall not communicate with or cause another to communicate with a juror concerning the case.

(c)    Notwithstanding Rules 3.5(a) and (b), a lawyer may communicate with members of the venire or jury in the course of official proceedings.

(d)    After discharge of the jury from further consideration of a case with which the lawyer was connected, the lawyer shall not ask questions of or make comments to a juror until the venire of which such juror is a member has been discharged, nor shall the lawyer thereafter ask questions of or make comments to a member of the venire that are calculated merely to harass or embarrass the juror or to influence such juror's actions in future jury service.

(e)    A lawyer shall not conduct or cause another to conduct, by financial support or otherwise, a vexatious or harassing investigation of members of the venire or jury.

(f)    All restrictions imposed by Rule 3.5 also apply to communications with or investigations of the families of members of the venire or jury.

(g)    A lawyer shall reveal promptly to the court the lawyer's knowledge of improper conduct by a member of the venire or jury or by another toward such a person or a member of such person's family.

(h)   A lawyer shall not give or lend anything of value to a judge, official, or employee of a tribunal, except those gifts or loans which a judge or a member of the judge's family may receive under Rule 65(C)(4) of the Code of Judicial Conduct, and except that a lawyer may: make a gift, bequest, loan or campaign contribution to a judge that the judge is permitted to accept under the Code of Judicial Conduct, provided that no campaign contribution to a judge or candidate for judicial office may be made other than by means of a check, draft, or other instrument payable to or to the order of an entity which the lawyer reasonably believes to be a political committee supporting such judge or candidate, provided further, however, that the provision of volunteer services by a lawyer to a political committee shall not be deemed to violate this Rule.

(i)    In an adversary proceeding, a lawyer shall not communicate, or cause another to communicate, as to the merits of the cause with a judge or an official before whom the proceeding is pending, except:

(1)   in the course of official proceedings in the cause;

(2)   in writing if the lawyer promptly delivers a copy of the writing to opposing counsel or to the adverse party if such party is not represented by a lawyer;

(3)   orally upon adequate notice to opposing counsel or to the adverse party if such party is not represented by a lawyer; or

(4)   as otherwise authorized by law.

Adopted February 8, 1990, effective August 1, 1990.  

RULE 3.6                Trial Publicity  

(a)    A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it would pose a serious and imminent threat to the fairness of an adjudicative proceeding.

(b)    There are certain subjects which would pose a serious and imminent threat to the fairness of a proceeding, particularly when they refer to a civil matter triable to a jury, or a criminal matter.  These subjects relate to:

(1)   the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness;

(2)   in a criminal case, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person’s failure to make a statement;

(3)   the performance or results of any examination or test or the failure of a person to submit to an examination or test, or the nature of physical evidence expected to be presented;

(4)   any opinion as to the guilt or innocence of a defendant or suspect in a criminal case;

(5)     information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial; or

(6)     the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent unless proven guilty.

(c)    Notwithstanding paragraph (a), a lawyer may state:

(1)   the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;

(2)   information contained in a public record;

(3)     that an investigation of a matter is in progress;

(4)     the scheduling or result of any step in litigation;

(5)   a request for assistance in obtaining evidence and information necessary thereto;

(6)   a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and

(7)   in a criminal case, in addition to subparagraphs (1) through (6);

(i)    the identity, residence, occupation, and family status of the accused,

(ii)   if the accused has not been apprehended, information necessary to aid in apprehension of that person,

(iii)  the fact, time, and place of arrest, and

(iv)  the identity of investigating and arresting officers or agencies and the length of the investigation.

(d)      Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client.  A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

(e)      No lawyer in a firm, or government agency, or otherwise associated with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).

Adopted February 8, 1990, effective August 1, 1990; amended October 22, 1999, effective December 1, 1999; stayed November 23, 1999, stay lifted March 16, effective immediately..

RULE 3.7                Lawyer as Witness  

(a)    A lawyer shall not accept or continue employment in contemplated or pending litigation if the lawyer knows or reasonably should know that the lawyer may be called as a witness on behalf of the client, except that the lawyer may undertake the employment and may testify:

(1)   if the testimony will relate to an uncontested matter;

(2)   if the testimony will relate to a matter of formality and the lawyer reasonably believes that no substantial evidence will be offered in opposition to the testimony;

(3)   if the testimony will relate to the nature and value of legal services rendered in the case by the lawyer or the firm to the client; or

(4)   as to any other matter, if refusal to accept or continue the employment would work a substantial hardship on the client.

(b)    If a lawyer knows or reasonably should know that the lawyer may be called as a witness other than on behalf of the client, the lawyer may accept or continue the representation until the lawyer knows or reasonably should know that the lawyer's testimony is or may be prejudicial to the client.

(c)    Except as prohibited by Rule 1.7 or Rule 1.9, a lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm may be called as a witness.

Adopted February 8, 1990, effective August 1, 1990.  

RULE 3.8                Special Responsibilities of a Prosecutor  

(a)    The duty of a public prosecutor or other government lawyer is to seek justice, not merely to convict.

(b)    A public prosecutor or other government lawyer shall not institute or cause to be instituted criminal charges when such prosecutor or lawyer knows or reasonably should know that the charges are not supported by probable cause.

(c)    A public prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant or to the defendant if the defendant is not represented by a lawyer, of the existence of evidence, known to the prosecutor or other government lawyer, that tends to negate the guilt of the accused or mitigate the degree of the offense.

(d)    In addition to his or her obligations under Rule 3.6, a public prosecutor or other government lawyer in criminal litigation shall exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the public prosecutor or other government lawyer would be forbidden from making under Rule 3.6.

(e)    The prosecutor in a criminal case shall refrain from making extrajudicial comments that would pose a serious and imminent threat of heightening public condemnation of the accused, except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose.

Adopted February 8, 1990; amended, effective October 30, 1992, effective immediately; amended October 22, 1999, effective December 1, 1999; stayed November 23, 1999, stay lifted March 16, 2000, effective immediately; amended March 1, 2001, effective immediately.

Committee Comments

Special Supreme Court Committee on Capital Cases

March 1, 2001

Paragraph (a) of Rule 3.8 is substantially similar to Standard 3-1.2(c) of the American Bar Association (ABA) Standards for Criminal Justice (3d ed. 1993); however, paragraph (a) of Rule 3.8 restates a principle that is far older than the ABA standard.  In 1924, the Illinois Supreme Court reversed a conviction for murder, noting that:

"The State's attorney in his official capacity is the representative of all people, including the defendant, and it was as much his duty to safeguard the constitutional rights of the defendant as those of any other citizen."  People v. Cochran, 313 Ill. 508, 526 (1924).

In 1935, the United States Supreme Court described the duty of a federal prosecutor in the following passage:

"The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.  As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.  He may prosecute with earnestness and vigor-indeed, he should do so.  But, while he may strike hard blows, he is not at liberty to strike foul ones.  It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."  Berger v. United States, 295 U.S. 78, 88, 79 L.Ed. 1314, 1321, 55 S.Ct. 629, 633 (1935).

Paragraph (a) of Rule 3.8 does not set an exact standard, but one good prosecutors will readily recognize and have always adhered to in the discharge of their duties.  Specific standards, such as those in Rules 3.3, 3.4, 3.5, 3.6, the remaining paragraphs of Rule 3.8, and other applicable rules provide guidance for specific situations.  Paragraph (a) of Rule 3.8 is intended to remind prosecutors that the touchstone of ethical conduct is the duty to act fairly, honestly, and honorably.  

RULE 3.9                 ADVOCATE IN NONADJUDICATIVE PROCEEDINGS

A lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3(a) through (c), and 3.4(a) through (c), and 3.5.

 Adopted July 1, 2009, effective January 1, 2010; amended November 23, 2009, effective January 1, 2010.

 Comment

      [1] In representation before bodies such as legislatures, municipal councils, and executive and administrative agencies acting in a rulemaking or policymaking capacity, lawyers present facts, formulate issues and advance argument in the matters under consideration. The decisionmaking body, like a court, should be able to rely on the integrity of the submissions made to it. A lawyer appearing before such a body must deal with it honestly and in conformity with applicable rules of procedure. See Rules 3.3(a) through (c), and 3.4(a) through (c) and 3.5.

      [2] Lawyers have no exclusive right to appear before nonadjudicative bodies, as they do before a court. The requirements of this Rule therefore may subject lawyers to regulations inapplicable to advocates who are not lawyers. However, legislatures and administrative agencies have a right to expect lawyers to deal with them as they deal with courts.

      [3] This Rule only applies when a lawyer represents a client in connection with an official hearing or meeting of a governmental agency or a legislative body to which the lawyer or the lawyer’s client is presenting evidence or argument. It does not apply to representation of a client in otherwise permitted lobbying activities, a negotiation or other bilateral transaction with a governmental agency, or in connection with an application for a license or other privilege or the client’s compliance with generally applicable reporting requirements, such as the filing of income-tax returns. Nor does it apply to the representation of a client in connection with an investigation or examination of the client’s affairs conducted by government investigators or examiners. Representation in such matters is governed by Rules 4.1 through 4.4.

 Adopted July 1, 2009, effective January 1, 2010; amended November 23, 2009, effective January 1, 2010.

RULE 4.1                Truthfulness in Statements to Others  

In the course of representing a client a lawyer shall not:

(a)    make a statement of material fact or law to a third person which statement the lawyer knows or reasonably should know is false; or

(b)    fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

Adopted February 8, 1990, effective August 1, 1990.  

RULE 4.2                Communications With Person Represented by Counsel  

During the course of representing a client a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by another lawyer in that matter unless the first lawyer has obtained the prior consent of the lawyer representing such other party or as may otherwise be authorized by law.

Adopted February 8, 1990, effective August 1, 1990.  

RULE 4.3                Dealing With Unrepresented Person  

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested.  When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

Adopted February 8, 1990, effective August 1, 1990.  

RULE 4.4                Respect for Rights of Third Persons 

In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

Adopted February 8, 1990, effective August 1, 1990.  

RULE 5.1                Responsibilities of a Partner or Supervisory Lawyer  

(a)    Each partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the conduct of all lawyers in the firm conforms to these Rules.

(b)    Each lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer's conduct conforms to these Rules.

(c)    A lawyer shall be responsible for another lawyer's violation of these Rules if:

(1)   the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

(2)   the lawyer is a partner in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to make reasonable remedial action.

Adopted February 8, 1990, effective August 1, 1990.  

RULE 5.2                Responsibilities of a Subordinate Lawyer  

(a)    A lawyer is bound by these Rules notwithstanding that the lawyer acted at the direction of another person.

(b)    A subordinate lawyer does not violate these Rules if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.

Adopted February 8, 1990, effective August 1, 1990.  

RULE 5.3                Responsibilities Regarding Nonlawyer Assistants  

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a)    The lawyer, and, in a law firm, each partner, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the nonlawyer's conduct is compatible with the professional obligations of the lawyer and the firm;

(b)    each lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the nonlawyer's conduct is compatible with the professional obligations of the lawyer; and

(c)    a lawyer shall be responsible for a nonlawyer's conduct that would be a violation of these Rules if engaged in by a lawyer if:

(1)   the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

(2)   the lawyer is a partner in the law firm, or has direct supervisory authority over the nonlawyer, and knows of the nonlawyer's conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Adopted February 8, 1990, effective August 1, 1990.  

RULE 5.4                Professional Independence of a Lawyer  

(a)    A lawyer or law firm shall not share legal fees with a nonlawyer, except that:

(1)   an agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer's death, to the lawyer's estate or to one or more specified persons;

(2)   a lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation which fairly represents the services rendered by the deceased lawyer or may make payments in accordance with Rule 1.17; and

(3)   a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement.

(b)    A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.

(c)    A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services.

(d)    A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:

(1)   a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;

(2)   a nonlawyer is a corporate director or officer thereof, except that a nonlawyer may serve as secretary thereof if such secretary performs only ministerial duties; or

(3)   a nonlawyer has the right to direct or control the professional judgment of a lawyer.

Adopted February 8, 1990, effective August 1, 1990; amended May 23, 2005, effective immediately.  

RULE 5.5                Unauthorized Practice of Law

A lawyer shall not:

(a)    practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or

(b)    assist a person who is not a member of the bar in the

performance of activity that constitutes the unauthorized practice of law.

Adopted February 8, 1990, effective August 1, 1990.

RULE 5.6                Restrictions on Right to Practice  

A lawyer shall not participate in offering or making:

(a)    a partnership or employment agreement that restricts the rights of a lawyer to practice after termination of a relationship, except an agreement concerning either benefits upon retirement or an agreement pursuant to the provisions of Rule 1.17; or

(b)    an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a controversy between private parties.

Adopted February 8, 1990, effective August 1, 1990; amended May 23, 2005, effective immediately. 

RULE 6.1                Reserved  

RULE 6.2                Accepting Appointments  

A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as:

(a)    representing the client is likely to result in violation of these Rules or other law;

(b)    representing the client is likely to result in an unreasonable financial burden on the lawyer; or

(c)    the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client.

Adopted February 8, 1990, effective August 1, 1990.  

RULE 6.3                Membership in Legal Services Organization

A lawyer may serve as a director, officer or member of a not-for-profit legal services organization, apart from the law firm in which the lawyer practices, notwithstanding that the organization serves persons having interests adverse to a client of the lawyer or law firm.  The lawyer shall not participate in a decision or action of the organization if the lawyer knows that:

(1)   participation in the decision would be incompatible with the lawyer's obligations to a client under Rule 1.7; or

(2)   the decision or action could have a material adverse effect on the representation of a client of the organization whose interests are adverse to a client of the lawyer.

Adopted February 8, 1990, effective August 1, 1990.  

RULE 6.4                Law Reform Activities Affecting Client Interests

A lawyer may serve as a director, officer or member of an organization involved in reform of the law or its administration notwithstanding that the actions of the organization may affect the interests of a client of the lawyer.  When the lawyer knows that the interests of a client may be materially benefited by a decision in which the lawyer participates, the lawyer shall reveal that fact to the organization but need not identify the client.

Adopted February 8, 1990, effective August 1, 1990.  

RULE 7.1                Communications Concerning a Lawyer's Services

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services.  A communication is false or misleading if it:

(a)    contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;

(b)    is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate these Rules or other law; or

(c)    compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated.

Adopted February 8, 1990, effective August 1, 1990.

RULE 7.2                Advertising  

(a)    Subject to the requirements of Rule 7.1, a lawyer may advertise services through public media, such as telephone directories, legal directories, newspapers or other periodicals, billboards, radio or television, or through written communication not involving solicitation as defined in Rule 7.3, provided:

(1)   a copy or recording of the advertisement or written communication is kept for three years after its last dissemination along with a record of when and where it was used; and

(2)   any communication made pursuant to Rules 7.1 and 7.2 includes the name of at least one lawyer responsible for its content.

(b)    A lawyer shall not give anything of value to a person for recommending or having recommended the lawyer's services, except that a lawyer may pay the reasonable cost of advertising or written communication permitted by Rules 7.1 and 7.2 (including fees of personnel preparing such advertising or communication), may pay the usual charges of a not-for-profit lawyer referral service or other legal service organization, or may pay for a law practice in accordance with Rule 1.17.

Adopted February 8, 1990, effective August 1, 1990; amended May 23, 2005, effective immediately.  

RULE 7.3                Direct Contact With Prospective Clients

 Except as provided in this Rule 7.3, or as permitted by Rule 7.2, a lawyer shall not, directly or through a representative, solicit professional employment when a significant motive for doing so is the lawyer's pecuniary gain.  The term "solicit" means contact with a person other than a lawyer in person, by telephone or telegraph, by letter or other writing, or by other communication directed to a specific recipient.

(a)    Except as provided in Rule 7.3(b), a lawyer may initiate contact with a prospective client for the purpose of solicitation in the following circumstances:

(1)   if the prospective client is a relative, or a close friend of the lawyer, or a person with whom the lawyer or lawyer's firm has had a prior professional relationship;

(2)   by letters or advertising circulars, providing that such letters and circulars and the envelopes containing them are plainly labeled as advertising material; or

(3)   under the auspices of a public or charitable legal services organization or a bona fide political, social, civic, charitable, religious, fraternal, employee or trade organization whose purposes include but are not limited to providing or recommending legal services.

(b)    In no event may a lawyer solicit a prospective client if:

(1)   the lawyer reasonably should know that the physical or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer;

(2)   the lawyer knows that the person solicited does not desire to receive a communication from the lawyer; or

(3)   the solicitation involves coercion, duress, or harassment.

Adopted February 8, 1990, effective August 1, 1990.

RULE 7.4                Communication of Fields of Practice  

(a)    A lawyer or law firm may specify or designate any area or field of law in which the lawyer or firm concentrates or limits the practice of law.  In this regard, a lawyer or firm may specify:

(1)   a description of the types of legal matters in which the lawyer or firm will accept employment and a statement as to whether the lawyer or firm concentrates or limits the practice of law to one or more particular fields; and

(2)   other information about the lawyer or firm, the practice engaged in, or types of legal matters in which employment will be accepted, which a reasonable person might regard as relevant in determining whether to seek the services offered.

(b)    The Supreme Court of Illinois does not recognize certifications of specialties in the practice of law, nor does it recognize certifications of expertise in any phase of the practice of law by any agency, governmental or private, or by any group, organization or association.  However:

(1)   a lawyer admitted to practice before the United States Patent and Trademark Office may use the designation "Patents," "Patent Attorney," "Patent Lawyer," or "Registered Patent Attorney," or any combination of those terms;

(2)   a lawyer engaged in trademark practice may use the designation "Trademarks," "Trademark Attorney" or "Trademark Lawyer," or any combination of those terms; or

(3)   a lawyer engaged in admiralty practice may use the designation "Admiralty," "Proctor in Admiralty" or "Admiralty Lawyer," or any combination of those terms.

(c)    Except when identifying certificates, awards or recognitions issued to him by an agency or organization, a lawyer may not use the terms "certified," "specialist," "expert," or any other, similar terms to describe his qualifications as a lawyer or his qualifications in any subspecialty of the law.  If such terms are used to identify any certificates, awards or recognitions issued by any agency, governmental or private, or by any group, organization or association, the reference must meet the following requirements:

(1)   the reference must be truthful and verifiable and may not be misleading in violation of Rule 7.1;

(2)   the reference must state that the Supreme Court of Illinois does not recognize certifications of specialties in the practice of law and that the certificate, award or recognition is not a requirement to practice law in Illinois.

Adopted February 8, 1990, effective August 1, 1990; amended July 16, 1990; effective August 1, 1990.

RULE 7.5                Firm Names and Letterheads  

(a)    A lawyer who assumes a judicial, legislative, or public executive or administrative post or office shall not permit the lawyer's name to remain in the name of a law firm or to be used in professional notices of the firm during any substantial period in which the lawyer is not actively and regularly practicing law as a member of the firm, and during such period other members of the firm shall not use the lawyer's name in the firm name or in professional notices of the firm.

(b)    A law firm shall not be formed or continued between or among lawyers licensed in different jurisdictions unless all enumerations of the members and associates of the firm on its letterhead and in other permissible listings make clear the jurisdictional limitations on those members and associates of the firm not licensed to practice in all listed jurisdictions; however, the same firm name may be used in each jurisdiction.

(c)    A trade name may be used by a lawyer in private practice if it is not misleading.  A lawyer or law firm using a trade name in any advertising must include the name of at least one lawyer responsible for its contents.

(d)    Lawyers may state or imply that they practice in partnership or other organization only when that is the fact.

Adopted February 8, 1990, effective August 1, 1990.  

RULE 8.1                Bar Admission and Disciplinary Matters  

(a)    An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a lawyer disciplinary matter, shall not:

(1)   make a statement of material fact known by the applicant or the lawyer to be false; or

(2)   fail to disclose a fact necessary to correct a material misapprehension known by that person to have arisen in the matter, or fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by these Rules or by law.

(b)    A lawyer shall not further the application for admission to the bar of another person known by the lawyer to be unqualified in respect to character, education, or any other relevant attribute.

Adopted February 8, 1990, effective August 1, 1990.  

RULE 8.2                Judicial and Legal Officials  

(a)    A lawyer shall not make a statement the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicative officer, public legal officer, or of a candidate for election or appointment to judicial or legal office.

(b)    A lawyer who is a candidate for judicial office shall refrain from conduct which, if the lawyer were a judge, would be a breach of the Code of Judicial Conduct.

Adopted February 8, 1990, effective August 1, 1990.  

RULE 8.3                Reporting Professional Misconduct  

(a)    A lawyer possessing knowledge not otherwise protected as a confidence by these Rules or by law that another lawyer has committed a violation of Rule 8.4(a)(3) or (a)(4) shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.

(b)    A lawyer possessing knowledge not otherwise protected as a confidence by these Rules or by law that a judge has committed a violation of the Code of Judicial Conduct which raises a question as to the judge's fitness for office shall inform the appropriate authority.

(c)    Upon proper request of a tribunal or other authority empowered to investigate or act upon the conduct of lawyers or judges, a lawyer possessing information not otherwise protected as a confidence by these Rules or by law concerning another lawyer or a judge shall reveal fully such information.

(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 February 8, 1990, effective August 1, 1990.  

RULE 8.4                Misconduct  

(a)    A lawyer shall not:

(1)   violate or attempt to violate these Rules;

(2)   induce another to engage in conduct, or give assistance to another's conduct, when the lawyer knows that conduct will violate these Rules;

(3)   commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

(4)   engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(5)   engage in conduct that is prejudicial to the administration of justice. In relation thereto, a lawyer shall not engage in adverse discriminatory treatment of litigants, jurors, witnesses, lawyers, and others, based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status.  This subsection does not preclude legitimate advocacy when these or similar factors are issues in the proceeding;

(6)   state or imply an ability to influence improperly any tribunal, legislative body, government agency or official;

(7)   assist a judge or judicial officer in conduct that the lawyer knows is a violation of the Code of Judicial Conduct;

(8)   avoid in bad faith the repayment of an education loan guaranteed by the Illinois Student Assistance Commission or other governmental entity.  The lawful discharge of an education loan in a bankruptcy proceeding shall not constitute bad faith under this rule, but the discharge shall not preclude a review of the attorney's conduct to determine if it constitutes bad faith; or

(9)(A)      violate a Federal, State or local statute or ordinance that prohibits discrimination based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status by conduct that reflects adversely on the lawyer's fitness as a lawyer.  Whether a discriminatory act reflects adversely on a lawyer's fitness as a lawyer shall be determined after consideration of all the circumstances, including

(1)   the seriousness of the act,

(2)   whether the lawyer knew that it was prohibited by statute or ordinance,

(3)   whether it was part of a pattern of prohibited conduct, and

(4)   whether it was committed in connection with the lawyer's professional activities.

(B)   No complaint of professional misconduct based on an unlawfully discriminatory act, pursuant to paragraph (9)(A) of this rule, may be brought until a court or administrative agency of competent jurisdiction has found that the lawyer has engaged in an unlawfully discriminatory act, and that the determination of the court or administrative agency has become final and enforceable and the right of judicial review of the determination has been exhausted.

(b)    A lawyer who holds public office shall not:

(1)   use that office to obtain, or attempt to obtain, a special advantage in a legislative matter for a client under circumstances where the lawyer knows or reasonably should know that such action is not in the public interest;

(2)   use that office to influence, or attempt to influence, a tribunal to act in favor of a client; or

(3)   represent any client, including a municipal corporation or other public body, in the promotion or defeat of legislative or other proposals pending before the public body of which such lawyer is a member or by which such lawyer is employed.

(c)    A lawyer who holds public office may accept political campaign contributions as permitted by law.

Adopted February 8, 1990, effective August 1, 1990; amended June 29, 1990, effective July 1, 1990; amended October 15, 1993, effective immediately; amended March 26, 2001, effective immediately; amended July 6, 2001, effective immediately.

RULE 8.5                Disciplinary Authority; Choice of Law  

(a)   Disciplinary Authority.  A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer’s conduct occurs.  A lawyer may be subject, for the same conduct, to the disciplinary authority of both this jurisdiction and another jurisdiction where the lawyer is admitted.

(b)   Choice of Law.  In any exercise of the disciplinary authority of this jurisdiction, the Rules of Professional Conduct to be applied shall be as follows:

(1)   for conduct in connection with a proceeding in a court before which a lawyer has been admitted to practice (either generally or for purposes of that proceeding), the rules to be applied shall be the rules of the jurisdiction in which the court sits, unless the rules of the court provide otherwise; and

(2)   for any other conduct,

(i)    if the lawyer is licensed to practice only in this jurisdiction, the rules to be applied shall be the rules of this jurisdiction, and

(ii)   if the lawyer is licensed to practice in this and another jurisdiction, the rules to be applied shall be the rules of the admitting jurisdiction in which the lawyer principally practices; provided, however, that if particular conduct clearly has its predominant effect in another jurisdiction in which the lawyer is licensed to practice, the rules of that jurisdiction shall be applied to that conduct.

Adopted February 8, 1990, effective August 1, 1990; amended February 14, 1995, effective immediately.

Comment
 
(February 14, 1995)

(a)    Source

The first sentence of Rule 8.5 is substantially equivalent to the rule as originally issued on February 8, 1990, to be effective August 1, 1990, which reads as follows:

"A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction although engaged in practice elsewhere."

This language was identical with the American Bar Association (ABA) Model Rule language as it then stood.

The present language of Illinois Rule 8.5 is substantially identical with the present ABA Model Rule language, as amended August 11, 1993.

The ABA Model Rule language is followed by an extensive "Comment" which is not adopted in Illinois.

(b)    Illinois Code of Professional Responsibility Provisions

The Illinois Code has no provisions relating to this subject.

(c)    Other Comment

Paragraph (a) restates longstanding law.  Nothing contained in Rule 8.5 abrogates the jurisdiction of the Illinois courts or the Attorney Registration and Disciplinary Commission over Illinois lawyers no matter where they practice: the rule simply directs which law or code of conduct should guide an Illinois tribunal when dealing with attorney conduct in an interstate transaction.

The rule does not purport to direct such tribunals when the transaction in question involves jurisdictions outside the U.S.

In subparagraph (b)(2)(ii), the “jurisdiction in which the lawyer principally practices” refers to the jurisdiction in which the lawyer’s principal office is located; the provisions of the subparagraph relating to the “predominant effect” of “particular conduct” shall apply solely to circumstances where there is a single jurisdiction, in which the lawyer is licensed, which experiences that “predominant effect.”  Where no such single jurisdiction can be determined, as in  a large multistate transaction, then the applicable rules of conduct would be those of the jurisdiction of principal practice.