By Mary F. Andreoni, ARDC Ethics Education Senior Counsel

Over 4,000 calls are made in a typical year to the ARDC Ethics Inquiry phone line from lawyers with questions about a lawyer’s duties under the ethics rules in Illinois. Most of the time, the answer can be readily found in the ethics rules, in particular the Rules of Professional Conduct, but some questions involve Supreme Court Rules that lawyers may not be so familiar with. A violation of the Supreme Court Rules governing the legal profession and judiciary, in addition to the Rules of Professional Conduct, can form the basis for lawyer discipline.

Five rules that lawyers may not know and yet address some of the most asked ethics questions listed below are: Supreme Court Rule 769 Maintenance of Records, Rule 775 Immunity, Rule 766 Confidentiality and Privacy, Rule 761 Conviction of Crime, and Rule 764 Duties of a Disciplined Attorney and Attorneys Affiliated with Disciplined Attorney.

• How long do I have to keep client files and law firm records?

• Can I be sued if I make a “Himmel” report?

• Who knows about an ARDC investigation? Can someone use it? Can I use it?

• If I’ve been arrested, do I have to report myself to the ARDC?  

• Can I hire a lawyer who’s been suspended or disbarred to work as a paralegal or law clerk in my firm?

#1 How long do I have to keep client files and law firm records?

Record Retention Rules: Supreme Court Rule 769 (as well as Supreme Court Rules 756(e) and 796(f), and RPC 1.15)

This is one of the most frequently asked questions to ARDC Ethics Inquiry. Lawyers are somewhat surprised to learn that there is no rule that specifically requires how long a lawyer or law firm is required to retain client files. There are certain rules, however, that set minimum retention periods, primarily covering law firm records, that lawyers must know. Failure to comply, particularly for client trust account records, could subject a lawyer to discipline. See, e.g., In re Salgado, M.R. 030538, 2019PR00073 (Mar. 16, 2021) (lawyer suspended with probation for conversion and failure to maintain required trust accounting records under RPC 1.15 and S.Ct. Rule 769).

Supreme Court Rule 769 requires two types of law firm records to be maintained: 1) records identifying the name and last known address of the attorney's clients and whether the representation is ongoing or concluded, and because there is no defined retention period, presumably kept for the duration of an attorney’s practice; and (2) all financial records relating to the attorney's practice for a period of not less than seven years after the representation is concluded. The financial records required to be maintained are bank statements, time and billing records, checks, check stubs, journals, ledgers, audits, financial statements, tax returns and tax reports from the past seven years. Included in financial records are all records of trust account funds and other property of clients or third persons, as required by RPC 1.15, that also must be retained for at least seven years after termination of a representation[1]. These rules allow lawyers to maintain original, copies, or computer-generated images of these records.

Additional record retention requirements are found in Supreme Court Rule 756(e), which requires a lawyer to maintain all documentation of malpractice coverage for a period of seven years after coverage is reported to the ARDC during the registration process, and Supreme Court Rule 796(f), under which lawyers must retain copies of CLE certificates of attendance as well as sufficient documentation necessary to corroborate CLE activity hours for three years after the end of the lawyer’s applicable reporting period.

The prudent lawyer should always err on the side of caution when deciding whether to destroy client files or business records, especially considering the wide availability of reliable, cost-effective electronic file storage options. A firm recordkeeping system should be in place at the outset of a lawyer’s practice. The basics of a good recordkeeping system are that it: 1) should be easy to use, 2) provides adequate storage, 3) is readily retrievable and, most importantly, 4) is implemented and consistently followed.

Resources: Guidance on record retention and establishing a record retention system: ARDC webcast, Record Retention (PMBR (2020-2021) Module); ARDC publication, The Basic Steps to Ethically Closing a Law Practice, at p. 8-10.

#2 Can I be sued if I make a “Himmel” report?

Immunity from Civil Liability: Supreme Court Rule 775

Supreme Court Rule 775 provides that “[a]ny person…who communicates a complaint concerning an attorney or allegations regarding the unauthorized practice of law to the [ARDC], or its administrators, staff, investigators or any member of its boards, shall be immune from all civil liability which, except for this rule, might result from such communications or complaint…”[2]

Lawyers fearful of making a report because they believe they might be risking legal exposure to suit, are immune from all civil liability that, except for Rule 775, might result from such a report so long as the lawyer confines such communications to the ARDC. See Lykowski v. Bergman, 299 Ill.App.3d 157, 700 N.E.2d 1064 (Ill. App. Ct. 1st Dist. 1998) (lawyer making a report to the ARDC of another lawyer’s alleged misconduct lost immunity under S.Ct. Rule 775 in defamation suit against lawyer when he forwarded copies of the ARDC charge to a newspaper). Rule 775 “afford[s] an absolute privilege to all communications made to the ARDC in a complaint”. Jackson v. Hehner, 2021 IL App (1st) 192411, ¶ 37 (Ill. App. Ct. Sep. 30, 2021) (lawyer’s civil complaint for tortious infliction of emotional distress against defendant lawyers properly dismissed based on absolute immunity for ARDC reporting under Rule 775), citing Casamento v. Berendt, 2018 IL App (2d) 180086 ¶ 17, 127 N.E.3d 211 (Ill. App. Ct. Sept. 18, 2018) (lawyer’s complaint for libel against complaining witness for statements made in her ARDC filing alleging lawyer engaged in the unauthorized practice of law are immunized under S.Ct. Rule 775).

A lawyer can be disciplined, however, for knowingly making a false “Himmel” report to the ARDC. See, e.g. In re Olivero, M.R. 17228, 1998PR00054 (Mar. 22, 2001) (lawyer suspended six months for engaging in dishonest conduct in violation of Rule 8.4(c) by intentionally making a false complaint to the ARDC about another attorney and testifying falsely before the ARDC in its investigation of that charge); In re Montgomery, M.R. 27443, 2014PR00101 (Sept. 21, 2015) (lawyer suspended eight months and until further order for, inter alia, presenting a professional disciplinary action to obtain an advantage in a civil matter in violation of Rule 8.4(g)).

Resource: ARDC publication, Answering the Top 10 Questions About a Lawyer’s Duty to Report Misconduct (June 2021).

#3 Who knows about an ARDC investigation? Can someone use it? Can I use it?

Confidentiality of ARDC Investigations: Supreme Court Rule 766

Supreme Court Rule 766(a) states that ARDC investigations are “private and confidential”. This means that an investigation, pending or closed, is not public, is not displayed on the ARDC website, and is not otherwise disclosed by the ARDC unless allowed under the narrow exceptions set forth in paragraph (b) of the rule.

While the ARDC and its staff are required to ensure confidentiality, Rule 766 is silent on whether a respondent-lawyer or complaining witness must also keep investigations, and the materials they generate, private and confidential. Disclosure to those outside the ARDC investigation, however, can open the door to losing Supreme Court Rule 775 immunity. See ISBA Op. 91-19 (Jan. 1992) (Supreme Court Rule 766 does not prohibit attorneys who report misconduct, or are the subject of it, from making statements to the press about ARDC proceedings where such statements are not in violation of RPC 3.6., but such statements would not qualify for the absolute immunity from civil liability granted under Rule 775).

#4 If I’ve been arrested, do I have to report myself to the ARDC?  

Self-Reporting Requirements: Supreme Court Rule 761(a) (and RPC 8.3(d))

Supreme Court Rule 761(a) requires a lawyer to report to the ARDC a conviction of a felony or a misdemeanor within 30 days of the entry of judgment of conviction. The written notification is required: (1) whether the conviction results from a plea of guilty or of nolo contendere or from a judgment after trial; and (2) regardless of the pendency of an appeal or other post-conviction proceeding. Lawyers have been disciplined as a result of their failure to report. See, e.g., In re DeGrave, M.R. 030625, 2020PR00044 (Mar. 16, 2021) (felony aggravated domestic battery); In re DiCiaula, M.R. 030427, 2020PR00019 (Sept. 21, 2020) (misdemeanor DUIs); In re Prendergrast, M.R. 029343, 2017PR00012 (Sept. 20, 2018) (aggravated felony DUI); In re Yard, M.R. 27796, 2014PR00136 (Jan. 21, 2016) (misdemeanor DUIs and driving on a suspended license).

An arrest does not trigger the self-reporting requirement of Rule 761(a). It sometimes may be prudent for a lawyer to self-report their own misconduct to the ARDC, however, particularly where it is likely others will be filing a report with the ARDC about that lawyer’s conduct or in circumstances where the lawyer is required to make a report of the misconduct of another lawyer or judge under Rule 8.3(a) or (b) even if the lawyer risks implicating himself or herself. See, e.g., In re Arnold, M.R. 10462, 93PR00436 (Nov. 30, 1994) (attorney suspended one year and ordered to participate in a drug abuse program for failure to report an associate judge, and long-time friend, of their illicit drug relationship); In re Daley, M.R. 17023, 98PR00002 (Nov. 27, 2000) (lawyer suspended nine months for failure to report his firm partner’s creation of a false court order in order to lure an Illinois Liquor Control Commission agent to be served with a subpoena). It may be also necessary for a lawyer to report his or her conduct to the lawyer’s supervisor under RPCs 5.1 and 5.2, the lawyer’s malpractice carrier, and, most importantly, the client, where the lawyer’s conduct impacts the representation. See RPC 1.4, Comment [7] a lawyer “may not withhold information to serve the lawyer’s own interest or convenience, or the interests or convenience of another person.”

In addition to Supreme Court Rule 761(a), RPC 8.3(d) requires a lawyer who has been disciplined as a result of a lawyer disciplinary action brought before any entity other than the ARDC to report that fact to the ARDC. A lawyer licensed to practice law in Illinois and another jurisdiction, and who is disciplined in the other jurisdiction, may be subject to the same or comparable discipline in Illinois as set forth in Supreme Court Rule 763. See, e.g., In re Holst, M.R. 18175, 2001PR00012 (Sept. 19, 2002) (lawyer suspended, inter alia, for failure to report discipline imposed by Michigan disciplinary authority).

#5 Can I hire a lawyer who’s been suspended or disbarred to work as a paralegal or law clerk in my firm?

Hiring a Disbarred/Suspended Lawyer: Supreme Court Rule 764

Supreme Court Rule 764(b) mandates that a “disciplined attorney shall not maintain a presence or occupy an office where the practice of law is conducted...” and must remove “any indicia of the disciplined attorney as lawyer, counsellor at law, legal assistant, legal clerk, or similar title.”

The Illinois Supreme court has warned the bar against employing a disbarred and suspended lawyer during the lawyer’s period of discipline. In In re Discipio, 163 Ill.2d 515, 645 N.E.2d 906 (1994), the Court suspended a lawyer for two years for assisting a disbarred lawyer in activities constituting the unauthorized practice of law under Rule 3-101(a) (now RPC 5.5(a)), writing:

 "Without a doubt, a disbarred or suspended attorney should not serve as a law clerk or a paralegal during his disbarment or suspension.      The line of demarcation between the work that a paralegal or a law clerk may do and those functions that can only be performed by an attorney is not always clear and distinct. The opportunity for a disbarred or suspended attorney who is serving as a paralegal or a law clerk to violate that line of demarcation is too great and too inviting. Also, the public is not aware of the differences between the work of a paralegal and that of an attorney. For a disbarred attorney to be seen as performing what the public may perceive as legal functions can only lessen the public's regard for the effectiveness of our attempt to discipline errant attorneys and would foment the belief that the public was not being protected from unethical attorneys."

163 Ill 2d 515, 526, 645 NE2d 906, 911 (1995), quoting In re Kuta, 86 Ill 2d 154, 161-62, 427 NE2d 136, 140 (1981).

Therefore, a suspended or disbarred lawyer cannot work as a paralegal, law clerk or legal assistant, cannot be employed to do legal research or writing, and cannot otherwise be employed in a position that could facilitate the unauthorized practice of law. Lawyers thinking about employing a disbarred or suspended lawyer are warned to be “especially circumspect about entering into a business or professional arrangement with a lawyer whose license has been suspended or revoked." Id.

Resource: To find out if an attorney is authorized to practice law in Illinois, go to the ARDC website (www.iardc.org) under “Lawyer Search”.