POLICIES AND ORDERS
COMMISSION POLICY REGARDING MOTIONS FOR SEALING DOCUMENTS
At its meeting on September 6, 1996, the Commission determined to establish an administrative policy, effective immediately, addressing public assess to a hearing file during the period between the filing of a motion to seal and the ruling on such a motion. During that time period the Clerk of the Commission will treat the file as public, absent a contrary written order from the Chair of the Hearing Panel.
ISSUED BY THE ARDC REVIEW BOARD
It is hereby ordered:
1. In all cases pending before the Review Board, parties shall be allowed to withdraw the certified copy of the record on appeal prepared by the Clerk of the Commission for purposes of preparing their briefs.
2. Whenever a party withdraws the certified record, the party is required to return the record to the Clerk at the time their brief is filed. The Clerk is hereby directed to refuse to accept for filing any brief submitted without the certified record where the party submitting the brief has withdrawn the record and has not previously returned it. In such a case, a party may move for leave to file the brief without returning the record if the party first makes payment to the Clerk for the costs of preparing the record and submits with the motion proof of such payment.
Adopted by the Review Board this 12th day of May, 1995.
Robert J. Downing
Review Board Chair
POLICY ISSUED BY THE ARDC REVIEW BOARD
If an appellant’s brief has not been timely filed, five days thereafter the Clerk shall forward a notice to counsel of record, advising that (1) Commission Rule 302(j) requires that the Review Board strike the Appellant’s exceptions “within the time set by” Rule 302 “or any additional time which the Review Board allows,” (2) Appellant’s Brief has not been filed as provided by that rule, (3) pursuant to the Review Board’s authority under that rule, Appellant is granted an additional 7 days or until ________ (specifying the exact date) to file his or her brief, and (4) and that if it is not filed by that date, Appellant’s exceptions will be stricken pursuant to the rule.
The Clerk shall then, in the name of the Review Board, automatically strike the Appellant’s exceptions if the brief or a motion for a further extension of time is not filed within the seven days, allowing for the necessary extra days to receive the same by mail. If a motion for additional time is filed, the same shall be considered and disposed of on its merits, but such tardy motions shall not be favored. If such a motion is denied, Appellant’s exceptions shall be stricken at that time.
In the event such a tardy motion is allowed, and Appellant’s Brief is thereafter not timely filed, no second notice to counsel of record as previously described shall be forwarded. Instead, the Clerk, in the name of the Review Board, shall automatically strike Appellant’s exceptions as soon as it has been determined that the brief has not been timely filed.
No motion to strike exceptions, based upon an appellant’s failure to timely file a brief, shall be filed.
This policy shall be effective as of April 9th, 2010.
1. PROHIBITING THE
REPRESENTATION OF RESPONDENTS BY BOARD MEMBERS
2. RECUSAL AND DISQUALIFICATION OF BOARD MEMBERS
3. BOARD MEMBERS TESTIFYING AS CHARACTER/EXPERT WITNESSES
4. BOARD MEMBERS PROVIDING EXPERT OR OPINION TESTIMONY IN NONDISCIPLINARY CASES
1. Policy prohibiting representation of respondents by Board members
No Board member shall represent a respondent in any disciplinary proceeding or action, pending or filed during his/her term as a Board member. A disciplinary proceeding includes, but is not limited to, all investigations, all proceedings before the Inquiry, Hearing and Review Boards, and all related proceedings before the Illinois Supreme Court. For purposes of this policy, the term "Board member" shall include all members of the Commission, Hearing Board, Review Board, Inquiry Board, Oversight Committee, and Client Protection Review Panel. (June 17, 2005)
2. Policy for recusal and disqualification of Board members
A Board member shall withdraw from participation in a matter or proceeding in which the member’s impartiality might reasonably be questioned or when there is a substantial showing that the member cannot participate in a fair and reasonable manner, including but not limited to instances where:
- the member has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceedings;
- an attorney-client or other fiduciary relationship exists between a party or party’s lawyer and an attorney member or an individual with whom the attorney member is currently associated in the practice of law. For purposes of this policy a member shall not be disqualified if he is represented by Counsel for the Administrator in any action brought as a result of the member’s actions in a Commission matter;
- a party or a party’s lawyer has a substantial business relationship with a public member or a substantial business relationship with an individual with whom the public member is currently professionally associated;
- a party or party’s lawyer appearing before the member is a co-counsel or adversary counsel of the member in another pending matter in any forum or a party or party’s lawyer and the member have any pending matters in which either has acted as referring counsel. For purposes of this policy a referring counsel is one who receives some economic benefit as defined in Rule 1.5 of the Rules of Professional Conduct;
- the member served as a lawyer in connection with any events relating to the matter or proceeding, or a lawyer with whom the member practices law served as a lawyer in connection with any events relating to the matter or proceeding. For purposes of this subparagraph a lawyer in a governmental agency does not necessarily have an association with other lawyers employed by that agency;
- the member, individually or as a fiduciary, or the spouse of the member, or any child living in the member’s household, has more than a de minimis financial interest in any events relating to the matter or proceeding.
For purposes of this policy, the term "Board member" shall include all members of the Review Board, Hearing Board, Inquiry Board, and Client Protection Review Panel. (June 17, 2005)
3. Policy concerning Board members testifying as character and expert witnesses
No Board member shall voluntarily testify as a character witness in any matter before the Hearing Board. If a Board member is subpoenaed to testify before the Hearing Board, the member shall not lend the authority of his/her position to advance the private interest of others and shall not convey or permit others to convey the impression that they are in a special position to influence the Hearing Board. Further, if a Board member testifies as a character witness, the member shall not discuss any aspect of the case with any other Board member, personnel of the Clerk of the Commission, or Adjudication Counsel. A Board member shall not testify as an expert witness in any matter before the Hearing Board. For purposes of this policy, the term "Board member" shall include all members of the Commission, Review Board, Hearing Board, Inquiry Board, Oversight Committee, and Client Protection Review Panel. (June 17, 2005)
4. Board members providing expert or opinion testimony in nondisciplinary cases
The Commission acknowledges that our Board members may be retained to provide expert or opinion testimony pertaining to the appropriate standard of care expected of an attorney in representing a client in proceedings which do not involve attorney discipline. In order to properly safeguard the integrity of our disciplinary system, the following policy shall apply:
A Board member may provide expert or opinion testimony pertaining to the appropriate standard of care expected of an attorney in representing a client in any nondisciplinary matter provided that the Board member does not use his/her affiliation with the ARDC at any time during the period the Board member is retained to provide such testimony for the purpose of establishing qualification as an expert. The Board member shall not include his/her affiliation with the ARDC on any resume or curriculum vitae submitted in connections with providing such expert or opinion testimony.
For purposes of this policy, the term "testify" shall
include oral and written statements made at any stage of the
proceedings, and the term "Board member" shall include all members of
the Commission, Review Board, Hearing Board, Inquiry Board, Oversight
Committee, and Client Protection Review Panel. (April 16, 2010)
POLICY ON RECUSAL BY ADMINISTRATOR'S COUNSEL
DURING INVESTIGATIONS AND RELATED PROCEEDINGS
1. ARDC Policy regarding Appointment of Special Counsel
The ARDC Commission shall appoint members of the bar pursuant to Supreme Court Rule 751(e)(5) to serve as special counsel. Special counsel shall conduct investigations as assigned. The authority and responsibilities of special counsel shall be the same as Administrator's counsel under Supreme Court and Commission rules, except that special counsel shall not take direction from the Administrator or his or her legal staff. Special counsel shall exercise independent authority to investigate and to refer an investigation to the Inquiry Board. Special counsel shall report to the Commission regarding the status and disposition of investigations assigned. Special counsel may be removed by the Commission at any time, without cause.
Special counsel shall act in matters involving allegations against attorneys associated with the ARDC, including counsel for the Administrator, Adjudication counsel, Commissioners and members of ARDC boards. Special Counsel shall conduct investigations under the related rules of the Supreme Court and the ARDC, as modified by this policy. In determining pursuant to Supreme Court Rule 752 and Commission Rules 51 and 52 whether to investigate a charge that makes allegations related to an attorney's conduct in a disciplinary investigation or proceeding, special counsel shall determine whether the allegations, if true, would constitute misconduct and whether the allegations otherwise meet the requirements of a charge as set forth in Commission Rule 52. In making that determination, special counsel shall take into account the attorney's role and fiduciary obligations in the matter and shall not be required to investigate allegations to the extent that they involve the attorney's exercise of discretion or judgment, the attorney's decision in the matter, or the complainant's general dissatisfaction with the disciplinary process or outcome.
2. Recusal by Administrator's Counsel during Investigations and Related Proceedings
Administrator's counsel must be sensitive to familial or close personal or professional relationships between Administrator's counsel and a respondent or complainant in a pending matter. In determining whether a relationship is of sufficient closeness to implicate this policy, staff lawyers must, of course, comply with applicable conflict provisions of the Illinois Rules of Professional Conduct (e.g., Rule 1.7(a)(2) and Rule 1.11(d)), and should also be guided by the judicial disqualification factors listed in Supreme Court Rule 63(C)(1)(c through e), which is set forth below, to the extent that the judicial rule is more stringent and/or detailed than the conflict provisions of the Illinois Rules of Professional Conduct.
Counsel who learns of such a relationship shall bring those circumstances to the attention of the Administrator or Deputy Administrator, who will review the disclosure and all relevant circumstances. If the Administrator or the Deputy Administrator agrees that the policy is implicated by the disclosure, the Commission Chair will be apprised. The investigation shall be assigned to special counsel. In no event shall the staff lawyer with the relationship have any involvement in or access to the investigation or any related proceeding.
Rule 63(C) provides:
(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge has been a material witness concerning it;
(c) the judge was, within the preceding three years, associated in the private practice of law with any law firm or lawyer currently representing any party in the controversy (provided that referral of cases when no monetary interest was retained shall not be deemed an association within the meaning of this subparagraph) or, for a period of seven years following the last date on which the judge represented any party to the controversy while the judge was an attorney engaged in the private practice of law;
(d) the judge knows that he or she, individually or as a fiduciary, or the judge's spouse, parent or child wherever residing, or any other member of the judge's family residing in the judge's household, has an economic interest in the subject matter in controversy or in a party to the proceeding, or has any more than de minimis interest that could be substantially affected by the proceeding; or
(e) the judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) is acting as a lawyer in the proceeding;
(iii) is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding; or
(iv) is to the judge's knowledge likely to be a material witness in the proceeding.
(2) A judge shall keep informed about the judge's personal and fiduciary economic interests, and make a reasonable effort to keep informed about the personal economic interests of the judge's spouse and minor children residing in the judge's household.
Discussion of ARDC Recusal Policy
The ARDC determined to adopt this recusal policy to dispel the unfounded perception that certain investigations may not be handled evenhandedly in light of relationships between staff counsel and others involved in investigations. The ARDC will make the recusal policy public, to post it to the ARDC website, and to distribute it to members of the ARDC system, to respondent’s counsel, and to those involved in investigations that implicate the policy.
The policy would be triggered when it comes to our attention that a staff counsel has a familial or close personal or professional relationship with a respondent or complainant. Our lawyers must be sensitive to such relationships and alert us when they are aware of such a relationship involving a respondent or complainant in a pending investigation. In determining whether a relationship is of sufficient closeness to implicate this policy, staff lawyers must, of course, comply with applicable conflict provisions of the Illinois Rules of Professional Conduct (e.g., Rule 1.7(a)(2) and Rule 1.11(d)), and should also be guided by the judicial disqualification factors listed in Supreme Court Rule 63(C)(1)(c through e), to the extent that the judicial rule is more stringent and/or detailed than the conflict provisions of the Illinois Rules of Professional Conduct.
The existence of such a relationship shall be communicated to Jim Grogan or me, and we will each review the disclosure and all relevant circumstances. If one of us concludes that the policy is implicated by the disclosure, the Commission Chair will be apprised. We will assign the investigation to staff counsel who does not work under the direct supervision of the lawyer with the relationship with the respondent or complainant, unless such an assignment is not feasible. Such an assignment may not be feasible if the affected lawyer has agency-wide supervisory responsibilities.
In no event shall the staff lawyer with the relationship have any involvement in or access to the investigation or any related proceeding. The assigned staff lawyer will work up the file and present it to the Inquiry Board without a recommendation for disposition. ARDC Inquiry Panels are independent of staff counsel and are comprised of experienced lawyers and non-lawyers who are able to make a decision without the staff’s recommendation.
At the time of the referral to the board, or promptly thereafter if the relationship becomes known during proceedings before the board, the staff lawyer shall disclose to the board and the respondent that a relationship exists between the respondent or complainant and a member of the legal staff, provide a copy of this policy to the board and the respondent, and request that the board review the investigation and Administrator's submission with due regard to the circumstances that implicate this policy.
This policy shall not preclude the assigned staff lawyer from communicating with the Inquiry Board regarding the matter, except as to a recommendation for disposition. In this way staff lawyer, who would not have a relationship with either the respondent or complainant, will be able to provide information to the board so that it has sufficient information to make its decision.
The recusal policy shall not create any rights in a respondent or complainant to seek disqualification of the Administrator or the Administrator's counsel or to communicate with the Commission Chair about the investigation or this policy.
While there is no perfect solution to this infrequent circumstance, the goal of this proposal is to balance several competing interests. The policy would ensure that the matter is assigned to a staff lawyer who is not tainted by any possible conflict. The involvement of the Inquiry Board as an independent decision-maker would also be in service of that goal. The ARDC would communicate that policy, by posting it to our policy section on our website and in response to specific inquiries such as the ones posed by the hearing panel chair.
The ARDC hopes that the communication of the policy would enhance the reputation of the disciplinary process. The party with the relationship to the staff lawyer would not suffer prejudice. At most, a respondent would find him or herself with an investigation pending before the Inquiry Board, but he or she would have an opportunity to argue to the Inquiry Board for the desired disposition and every reason to believe that the board would make a decision unaffected by the relationship of the respondent or complainant with a staff member. A complainant with such a personal relationship could not have any legitimate expectation in any other type of decision-making process.
Adopted by the ARDC Commission on September 16, 2011 and published on December 16, 2011, following review by the Supreme Court.