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
SUPREME
COURT OF ILLINOIS RULES OF PROFESSIONAL CONDUCT
ARTICLE
VIII.
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.
"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.
(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.
A lawyer shall act with reasonable diligence and promptness in
representing a client.
Adopted
February 8, 1990; effective August 1, 1990.
(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.
(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
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
(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
(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
(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” meansana 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 institutionfor 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 comparablebankaccounts 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[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) require
[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;
(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.
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
2.3
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.
(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.
(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.
(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..
(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.
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
(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
6.2
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.
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.
(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.
(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.