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I. A Play in Four Acts

A. The Difficult Client-Scene One

A lawyer named Gilbert, licensed in both Wisconsin and Illinois, began representing a

63-year-old Wisconsin man suffering from congestive heart disease and chronic depression for

which he was receiving disability benefits. Following a heart attack, he was placed in a nursing

home. At the time, he had a $254,000 stock portfolio, a $95,000 condominium, and a $75,000

wristwatch collection. The man’s prior attorney wanted no further dealings with him because he

was a difficult client. Gilbert agreed to represent him at a rate of $125 per hour. Thereafter, she

charged $112,000 for services rendered over a six-month period. The Wisconsin Supreme Court

determined that the fees were excessive and unreasonable in light of the work that was

performed, much of it in the nature of running errands for the client which were termed by the

hearing referee as “fetching” services. Further she used the client’s credit card to purchase items

that were not for his benefit such as a video cassette recorder, a dehumidifier, and cologne. She

allowed the client’s bank account to become overdrawn because she used the client’s debit card

to make purchases for him with the mistaken belief that it was a credit card. Finally, she was

told that the client’s big screen television was not working. After going to his residence and

unsuccessfully trying to turn on the television with the remote control, she obtained a $3,000

cashier’s check written on client funds and made it payable to a local appliance store. When the

salesman at the store suggested that the problem with the client’s television might be due to dead

batteries in the remote control, she bought new batteries, returned to the client’s home, and was

able to operate the television with the remote control. She later returned to the store and used the

$3,000 cashier’s check to buy a large screen television for herself and her family. There are two

interesting aspects to the case. First, the disciplinary authority called an elder-law expert witness

to the stand to refute the reasonableness of the fees in issue. Second, she had introduced into

evidence a videotape that she took of her client that she claimed supported her position that the

client knew and understood the terms of their fee relationship. The videotape, however, showed a

man with obvious physical and cognitive problems. On camera, she paged through the written

fee agreement, saw that it had already been signed, but then pretended that there was no problem.

She then turned off the camera. When taping resumed, she was heard directing the client to sign

his name “right above the line” and to “fill in the date.” In re Jill Star Gilbert, M.R. 16461, 99

RC 1513 (Ill. March 22, 2000). The Illinois Supreme Court imposed reciprocal discipline and

2

suspended Gilbert for two years and until she was reinstated in Wisconsin. The original

Wisconsin case is In re Disciplinary Proceedings against Jill S. Gilbert, 227 Wis.2d 444, 595

N.W.2d 715 (July 2, 1999).

B. The Difficult Client-Scene Two

An Ohio-based criminal defense lawyer named Witt was hired by a difficult client (Witt

was her sixth attorney) to represent the client’s elderly mother who was in a nursing home. Witt

was paid $10,000 in installments. Not all of the payments were properly deposited into the

clients account until earned. Several of the payments were deposited directly into his operating

account. Not surprisingly, the client ultimately fired him, and filed a complaint over the fee.

Disciplinary Counsel subpoenaed his bank records, and the trust account discrepancies came to

light. Witt was not motivated by greed, and has hired a CPA to handle his finances. He received

a six month stayed suspension. Of note, Witt usually charges a “flat fee” in criminal cases, which

he deems “earned upon receipt”, and deposits those funds into his operating account. The court

frowns on a claim of “earned upon receipt”, as that implies the fee is non-refundable. The court

does allow deposit of flat fees into the operating account, provided that provisions are made for a

partial refund if they attorney is discharged. Cincinnati Bar Association v. Jeffrey A. Witt, 103

Ohio St.3d 434 (Ohio, October 27, 2004).

C. The Difficult Client-Scene Three

In re David M. Druten, 982 P.2d 978 (Kansas, July 9, 1999). Kansas attorney Druten

began representing his former high school basketball coach and teacher. They had maintained a

social relationship since high school. The coach ran a Kansas City carpeting business and

referred collection matters to Druten after he was licensed to practice. In the late 1980’s the

coach sold the carpet business but retained some fifteen account receivable files that he turned

over to Druten for collection. The claims were in the aggregate amount of about $105,000 and

only eight to ten files were worthy of pursuit, although the statute of limitations might have

applied and been a bar to some accounts. Between 1992 and 1997, Druten represented the coach

in a D.U.I. matter, a civil case, and an insurance dispute and came to learn of several instances in

which the coach had been untruthful. In discussing the collection files and Druten’s concern

about the statute of limitations, the coach offered to create false testimony. Druten noted that the

coach was becoming “stronger and more belligerent.” Although he never filed any claims on the

account receivable matters, sometime in 1993 he began to let the coach think that suits had been

filed and were progressing in an appropriate manner. The coach found out the true facts in 1998

and filed a malpractice action against Druten that was eventually settled for approximately

$100,000. Druten reported himself to disciplinary authorities and withdrew as a shareholder from

his law firm. Since early 1998, he has not engaged in the private practice of law but has done pro

bono work for various charities. At the disciplinary hearing, a clinical psychologist testified that

the Druten had “difficulties with insight and understanding how certain consequences might

unfold for certain behavior.” Druten’s long-term relationship with his coach “set the stage,

creating a conflict between wanting to do the right thing and not wanting to damage the

friendship.” Although the Court noted that Druten’s behavior after his misconduct was a

testament to his character, it did not nullify a five-year pattern of deceit. He was censured.

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D. The Difficult Client-Scene Four

In re Joseph Rosin, 118 Ill.2d 365, 515 N.E.2d 85 (1987). A woman named Julia was

driving on Roosevelt Road through West Chicago when her auto was struck by a semi-trailer

truck. She suffered personal injuries, which required her admission to Central DuPage Hospital

with head wounds, multiple contusions, speech difficulty, quadriparesis, and bladder

incontinence. She was unconscious for about a week after the accident and suffered from

amnesia for several weeks. She also suffered chronic post-traumatic organic brain disturbance

that caused intellectual defect and a reduced capacity to deal with daily stresses and strains. The

day after the accident, while Julia was still unconscious at the hospital, attorney W. Jason Mitan

appeared at Julia’s brother's home, uninvited and unannounced. Mitan persuaded the brother that

he would protect Julia’s welfare and make sure that her children were taken care of. Julia’s

brother then signed a retainer agreement empowering Mitan to represent his sister in any

personal injury claim she might assert. Later, Mitan filed suit on Julia’s behalf against the parties

liable for her injuries. After suit was filed, Mitan referred Julia’s case to Rosin, a Chicago

personal injury lawyer. Rosin had a long-standing relationship with Mitan and the two men were

personal friends. Rosin represented Mitan during attorney disciplinary proceedings that

eventually culminated in Mitan’s disbarment for misconduct unrelated to this case. After being

retained, Rosin learned that Julia had severe psychological problems and was diagnosed a

schizophrenic following post-accident examinations by several psychiatrists and psychologists.

She was raised in rural southern Illinois and completed an 11th-grade education. Prior to her

accident, she was estranged from her husband and ostracized by her family. She was responsible

for raising four young children while earning less than $7,000 a year working on an assembly

line at a Batavia factory. Within eighteen months after the accident, Julia incurred $43,871.51 in

medical bills and had been hospitalized or received out-patient care at seven different hospitals

and psychiatric facilities for recurrences of depression and attempted suicides. Following her

accident, she was frequently under the influence of Valium, Darvon, and Placidyl, which were

prescribed to her on a regular basis. Rosin considered her to be a "pill-taker." In synergism with

her physical and mental condition, the drugs would cause Julia to suffer from poor memory,

dizziness, fainting spells and blackouts. Rosin was able to negotiate a settlement of her personal

injury claim and guaranteed her that she would net $200,000 after the payment of all fees and

expenses. Before she received the guaranteed funds, however, one-half of the promised money

was invested in a closely-held collectors stamp company, Chambers Stamp Company, managed

by a Circuit Court of Cook County Law Division Judge who happened to be a social friend of

Rosin. The investment agreement had been drafted by the Rosin. Although he did not speak with

Julia before preparing the document, he admitted that he did not undertake any investigation of

the company on her behalf other than asking the judge for an opinion. Rosin later said that he

knew the judge “to be in the business, and I just thought that would be for the benefit of the lady,

would serve her purpose and serve the purpose of this company." Needless to say, Julia lost her

money. The Supreme Court found that, by drafting the investment agreement without properly

advising the client as to the risks of the speculative venture and without revealing his own ties to

the enterprise, he had engaged in a conflict of interest warranting sanction. His failure to take

into account the client’s “precarious emotional condition” aggravated the misconduct. The Court

suspended him for two years and he was also ordered to repay the client the amount of money

4

she lost in the investment, plus interest, even though Rosin never directly benefited from the

scheme.

II. Proposed IRPC Rule 1.14 (Draft of November 13, 2007

as Revised June 10, 2008)

CLIENT WITH DIMINISHED CAPACITY

(a) When a client's capacity to make adequately considered decisions in

connection with a representation is diminished, whether because of minority,

mental impairment or for some other reason, the lawyer shall, as far as reasonably

possible, maintain a normal client-lawyer relationship with the client.

(b) When the lawyer reasonably believes that the client has diminished capacity,

is at risk of substantial physical, financial or other harm unless action is taken and

cannot adequately act in the client's own interest, the lawyer may take reasonably

necessary protective action, including consulting with individuals or entities that

have the ability to take action to protect the client and, in appropriate cases,

seeking the appointment of a guardian ad litem, conservator or guardian.

(c) Information relating to the representation of a client with diminished capacity

is protected by Rule 1.6. When taking protective action pursuant to paragraph (b),

the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about

the client, but only to the extent reasonably necessary to protect the client's

interests.

Comment

[1] The normal client-lawyer relationship is based on the assumption that the client, when

properly advised and assisted, is capable of making decisions about important matters. When the

client is a minor or suffers from a diminished mental capacity, however, maintaining the ordinary

client-lawyer relationship may not be possible in all respects. In particular, a severely

incapacitated person may have no power to make legally binding decisions. Nevertheless, a

client with diminished capacity often has the ability to understand, deliberate upon, and reach

conclusions about matters affecting the client's own well-being. For example, children as young

as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions

that are entitled to weight in legal proceedings concerning their custody. So also, it is recognized

that some persons of advanced age can be quite capable of handling routine financial matters

while needing special legal protection concerning major transactions.

[2] The fact that a client suffers a disability does not diminish the lawyer's obligation to treat the

client with attention and respect. Even if the person has a legal representative, the lawyer should

as far as possible accord the represented person the status of client, particularly in maintaining

communication.

5

[3] The client may wish to have family members or other persons participate in discussions with

the lawyer. When necessary to assist in the representation, the presence of such persons generally

does not affect the applicability of the attorney-client evidentiary privilege. Nevertheless, the

lawyer must keep the client's interests foremost and, except for protective action authorized

under paragraph (b), must to look to the client, and not family members, to make decisions on

the client's behalf.

[4] If a legal representative has already been appointed for the client, the lawyer should

ordinarily look to the representative for decisions on behalf of the client. In matters involving a

minor, whether the lawyer should look to the parents as natural guardians may depend on the

type of proceeding or matter in which the lawyer is representing the minor. If the lawyer

represents the guardian as distinct from the ward, and is aware that the guardian is acting

adversely to the ward's interest, the lawyer may have an obligation to prevent or rectify the

guardian's misconduct. See Rule 1.2(d).

Taking Protective Action

[5] If a lawyer reasonably believes that a client is at risk of substantial physical, financial or other

harm unless action is taken, and that a normal client-lawyer relationship cannot be maintained as

provided in paragraph (a) because the client lacks sufficient capacity to communicate or to make

adequately considered decisions in connection with the representation, then paragraph (b)

permits the lawyer to take protective measures deemed necessary. Such measures could include:

consulting with family members, using a reconsideration period to permit clarification or

improvement of circumstances, using voluntary surrogate decisionmaking tools such as durable

powers of attorney or consulting with support groups, professional services, adult-protective

agencies or other individuals or entities that have the ability to protect the client. In taking any

protective action, the lawyer should be guided by such factors as the wishes and values of the

client to the extent known, the client's best interests and the goals of intruding into the client's

decisionmaking autonomy to the least extent feasible, maximizing client capacities and

respecting the client's family and social connections.

[6] In determining the extent of the client's diminished capacity, the lawyer should consider and

balance such factors as: the client's ability to articulate reasoning leading to a decision,

variability of state of mind and ability to appreciate consequences of a decision; the substantive

fairness of a decision; and the consistency of a decision with the known long-term commitments

and values of the client. In appropriate circumstances, the lawyer may seek guidance from an

appropriate diagnostician.

[7] If a legal representative has not been appointed, the lawyer should consider whether

appointment of a guardian ad litem, conservator or guardian is necessary to protect the client's

interests. Thus, if a client with diminished capacity has substantial property that should be sold

for the client's benefit, effective completion of the transaction may require appointment of a legal

representative. In addition, rules of procedure in litigation sometimes provide that minors or

persons with diminished capacity must be represented by a guardian or next friend if they do not

6

have a general guardian. In many circumstances, however, appointment of a legal representative

may be more expensive or traumatic for the client than circumstances in fact require. Evaluation

of such circumstances is a matter entrusted to the professional judgment of the lawyer. In

considering alternatives, however, the lawyer should be aware of any law that requires the

lawyer to advocate the least restrictive action on behalf of the client.

Disclosure of the Client's Condition

[8] Disclosure of the client's diminished capacity could adversely affect the client's interests. For

example, raising the question of diminished capacity could, in some circumstances, lead to

proceedings for involuntary commitment. Information relating to the representation is protected

by Rule 1.6. Therefore, unless authorized to do so, the lawyer may not disclose such information.

When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized to

make the necessary disclosures, even when the client directs the lawyer to the contrary.

Nevertheless, given the risks of disclosure, paragraph (c) limits what the lawyer may disclose in

consulting with other individuals or entities or seeking the appointment of a legal representative.

At the very least, the lawyer should determine whether it is likely that the person or entity

consulted with will act adversely to the client's interests before discussing matters related to the

client. The lawyer's position in such cases is an unavoidably difficult one.

Emergency Legal Assistance

[9] In an emergency where the health, safety or a financial interest of a person with seriously

diminished capacity is threatened with imminent and irreparable harm, a lawyer may take legal

action on behalf of such a person even though the person is unable to establish a client lawyer

relationship or to make or express considered judgments about the matter, when the person or

another acting in good faith on that person's behalf has consulted with the lawyer. Even in such

an emergency, however, the lawyer should not act unless the lawyer reasonably believes that the

person has no other lawyer, agent or other representative available, except when that

representative’s actions or inaction threaten immediate and irreparable harm to the person. The

lawyer should take legal action on behalf of the person only to the extent reasonably necessary to

maintain the status quo or otherwise avoid imminent and irreparable harm. A lawyer who

undertakes to represent a person in such an exigent situation has the same duties under these

Rules as the lawyer would with respect to a client.

[10] A lawyer who acts on behalf of a person with seriously diminished capacity in an

emergency should keep the confidences of the person as if dealing with a client, disclosing them

only to the extent necessary to accomplish the intended protective action. The lawyer should

disclose to any tribunal involved and to any other counsel involved the nature of his or her

relationship with the person. The lawyer should take steps to regularize the relationship or

implement other protective solutions as soon as possible. Normally, a lawyer would not seek

compensation for such emergency actions taken.

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III. Disciplinary Statistics and the Grievance Process

Illinois has the sixth largest attorney population in the United States. New York

(221,872), California (205,217), Texas (92,418), the District of Columbia (85,651), and

Pennsylvania (87,215), have larger lawyer numbers than Illinois.1

Although the lawyer population in Illinois is substantial, its combination of urban, suburban

and rural practice environments makes it an archetype for the study of the disciplinary process as

it relates to the sanctioned lawyer.

A. Types and Numbers of Grievances Filed against Lawyers

The Attorney Registration and Disciplinary Commission (ARDC) is the lawyer

regulatory authority in Illinois. During 2007, the ARDC docketed 5,988 investigations, a 3.2%

increase from 2006. Those 5,988 investigations involved charges against 4,190 different

attorneys, representing about 5% of all registered attorneys. About 22% of these 4,190 attorneys

were the subject of more than one investigation docketed in 20072

The classification of charges docketed in 2007, based on an initial assessment of the type

of legal context in which the facts apparently arose, appears on page eight. Consistent with prior

years, the top areas of practice most likely to lead to a grievance of attorney misconduct include:

criminal law (23.7% of all grievances), domestic relations (15.7% of all grievances), tort (10% of

all grievances), and real estate (9.2% of all grievances). As a general rule, a little more than five

percent of disciplinary investigations result in the filing of formal disciplinary charges annually.

1 Source: International Survey of Attorney Licensing Fees, Office of Attorney Ethics of New Jersey (July

2007).

2 The number of grievances varies widely among the jurisdictions. For example, in 2004, South Dakota, with

an active practitioner base of 2105, fielded 81 grievances. California, with an active practitioner base of 149,440 (as

opposed to the total number of licensed lawyers), received 14,168 grievances. The average number of grievances

received by disciplinary regulators in this country is 2,271 per agency. The median number is 1385. See ABA,

Survey on Lawyer Discipline (2004) http://www.abanet.org/cpr/discipline/sold/sold-home.html

8

Classification of Grievances Docketed in 2007 by Area of Law

Area of Law Number*

Criminal/Quasi-Criminal ................................. 1,421 Domestic Relations ............................................ 945

Tort (Personal Injury/Property Damage) ............ 604

Real Estate/Landlord-Tenant.............................. 552

Probate ............................................................... 351

Labor Relations/Workers’ Comp ....................... 271

Contract .............................................................. 231

Bankruptcy ......................................................... 225

Debt Collection .................................................. 173

Criminal Conduct/Conviction ............................ 137

Immigration ........................................................ 118

Civil Rights ........................................................ 109

Corporate Matters .............................................. 103

Local Government Problems ................................ 50

Personal misconduct............................................. 40

Tax ....................................................................... 23

Patent and Trademark .......................................... 23

Adoption .............................................................. 20

Social Security ..................................................... 13

Mental Health ......................................................... 3

Other .................................................................... 39

Undeterminable .................................................. 197

No misconduct alleged ....................................... 322

*Totals exceed the number of charges docketed in 2007 because

in many charges more than one area of law is involved.

The chart that appears on page nine reports the classification of investigations docketed

in 2007 based on an initial assessment of the nature of the misconduct alleged, if any. If an

investigation fails to reveal sufficiently serious, provable misconduct, the ARDC Staff will close

the investigation.

If an investigation produces evidence of serious misconduct, the case is referred to the

Inquiry Board, unless the matter is filed directly with the Supreme Court under certain specific

situations. The Inquiry Board operates in panels of three, composed of two attorneys and one

non-lawyer, all appointed by the Commission. An Inquiry Board panel has authority to vote a

formal complaint if it finds sufficient evidence to support a charge, to close an investigation if it

does not so find, or to place an attorney on supervision. The Administrator cannot pursue formal

charges without authorization by an Inquiry Board panel. Information concerning the type of

misconduct alleged in formal proceedings filed before the Hearing Board, as well information

regarding the practice area of the attorneys charged in a formal complaint during 2007, are found

in the charts appearing on page ten.

9

Classification of Charges Docketed in 2007 by Violation Alleged

Type of Misconduct Number*

Neglect .......................................................................................... 2,712

Failing to communicate with client, including failing to

communicate the basis of a fee ............................................... 1,207

Fraudulent or deceptive activity, including lying to clients, knowing

use of false evidence or making a misrepresentation to a tribunal or non-client ........................... 1,027

Excessive or improper fees, including failing to refund unearned fees .................................................................... 854

Improper management of client or third party funds, including commingling, conversion, failing to

promptly pay litigation costs or client creditors or

issuing NSF checks ...................................................................... 390

Improper trial conduct, including using means to

embarrass, delay or burden another or suppressing evidence where there is a duty to reveal ....................................... 360

Conduct prejudicial to the administration of justice, including conduct which is the subject of a contempt

finding or court sanction .............................................................. 323

Conflict of Interest: .......................................................................... 322 Rule 1.7: Concurrent conflicts .......................................................... 228

Rule 1.8(a) Improper business transaction with client ......................... 21

Rule 1.8(c) Improper preparation of instrument benefiting lawyer ........ 5

Rule 1.8(d) Financial assistance to client .............................................. 6

Rule 1.8(e) Improper aggregate settlement for multiple clients ............. 4

Rule 1.8(h): Improper agreement to limit/avoid

disciplinary action ............................................................................. 2

Rule 1.8(i): improper acquisition of interest in client mater .................. 3

Rule 1.9: Successive conflicts ............................................................. 47

Rule 1.10: Imputed disqualification ...................................................... 4

Rule 1.11: Former government lawyer .................................................. 2 Filing frivolous or non-meritorious claims or pleadings ................... 276

Failing to properly withdraw from representation, including failing to return client files or documents ..................... 153

Criminal activity, including criminal convictions, counseling illegal conduct or public corruption ........................... 139

Failing to provide competent representation ..................................... 125

Not abiding by a client’s decision concerning the

representation or taking unauthorized action on the

client’s behalf............................................................................... 101

Practicing in a jurisdiction where not authorized ................................ 94

Improper commercial speech, including inappropriate

written or oral solicitation ............................................................ . 73

Prosecutorial misconduct .................................................................. . 64

Type of Misconduct Number*

Improper communications with a party known to be

represented by counsel or with unrepresented party ..................... 62

Failing to preserve client confidences or secrets ............................... 53

Threatening criminal prosecution or disciplinary

proceedings to gain advantage in a civil matter ............................ 39

Practicing after failing to register ...................................................... 29

Aiding a nonlawyer in the unauthorized practice of law ................... 25

Failing to supervise subordinates ...................................................... 17

Improper division of legal fees with another lawyer ......................... 14

Improper division of legal fees/partnership with nonlawyer ..................................................................................... 12

Failing to report misconduct of another lawyer or judge ................... 11 Incapacity due to chemical addiction or mental

condition....................................................................................... 11

Sexual harassment/abuse or violation of law prohibiting discrimination ............................................................ 10

Bad faith avoidance of a student loan ................................................. 8

False statements in a bar admission or disciplinary matter .................. 8

Improper ex parte communication with judge .................................... 8

Improper employment where lawyer may become a witness .............. 6

Improper extrajudicial statement ......................................................... 6

Failing to comply with Rule 764 ......................................................... 5

Failing to maintain an appropriate attorney-client relationship

with disabled client ......................................................................... 4

Failing to report lawyer’s discipline in another jurisdiction ................ 3

Assisting a judge in conduct that violates the judicial code ................ 2

Investigation of bar applicant .............................................................. 2

Improper agreement restricting a lawyer’s right to practice ................ 2

Failing to pay tax obligation in bad faith............................................. 1

Failing to pay child support ................................................................ 1

No misconduct alleged .................................................................... 287

*Totals exceed the number of charges docketed in 2007 because in

many charges more than one type of misconduct is alleged.

Types of Misconduct Alleged in Complaints Filed Before Hearing Board in 2007

Number % of

of Cases

Type of Misconduct Cases* Filed*

Neglect/lack of diligence .............................. 41 ............ 31%

In many cases where neglect was

charged, the neglect was accompanied by

one or both of the following: Misrepresentation to client .......................... 19

Failure to return unearned fees .................... 17 Failure to communicate with client ............... 40 ............ 30%

Fraudulent or deceptive activity .................... 38 ............ 29%

Improper handling of trust funds .................. 34 ............ 26%

Criminal conduct/conviction of lawyer ......... 34 ............ 26%

False statement or failure to respond

in bar admission or disciplinary matter ....... 27 ............ 20%

Conflict of interest ........................................ 20 ............ 15% Rule 1.7: concurrent conflicts ...................... 12

Rule 1.8(a): improper business

transaction with client ................................. 5

Rule 1.8(d): improper financial

assistance to client ....................................... 1

Rule 1.9: successive conflicts ........................ 2

Falsifying evidence or making false

statements to tribunal .................................. 14 ............ 11%

Pursuing/filing frivolous or

non-meritorious claims or pleadings ........... 13 ............ 10%

Excessive or unauthorized fees ..................... 10 ..............8%

Failure to provide competent

representation ................................................. 7 ............ 5%

Number % of

of Cases

Type of Misconduct Cases* Filed*

Improper withdrawal from employment

without court approval or avoiding

prejudice to client ........................................ 7 ............... 5%

Not abiding by client’s decision or taking

unauthorized action on client’s behalf ....... 6 ... ........... 5%

Unauthorized practice after discipline ............. 5 ............... 4%

Misrepresentation to third persons .................. 4 ............... 3%

Assist client in criminal/fraudulent conduct .... 3 ............... 2%

Unauthorized practice after

failure to register ......................................... 3 ............... 2%

Aiding in the unauthorized practice of law ..... 2 ............... 2%

False statement about judge ............................ 2 ............... 2%

Improper ex parte communication with judge . 2 ............... 2%

Improper commercial speech, including

improper direct solicitation ....................... 2 ............... 2%

Prosecutor’s failure to disclose

exculpatory evidence ................................. 2 ............... 2%

Failure to comply with Rule 764 ..................... 1 ............... 1%

Failure to supervise employees ....................... 1 ............... 1%

Improper communication with

a represented person .................................. 1 ............... 1%

Improper employment where lawyer may

become witness ......................................... 1 ............... 1%

Induce/assist another to violate rules ............... 1 ............... 1%

*Totals exceed 133 disciplinary cases and 100% because most complaints allege more than one type of misconduct.

........................................................................

Area of Law Involved in Complaints Filed Before Hearing Board in 2007

Number % of

of Cases

Area of Law Cases Filed*

Real Estate .............................................. 21 .................. 16%

Tort ......................................................... 19 .................. 14%

Domestic Relations ................................. 16 .................. 12%

Criminal .................................................. 16 .................. 12%

Probate .................................................... 15 .................. 11%

Bankruptcy .............................................. 13 .................. 10%

Contract .................................................. 10 ....................8%

Number % of

of Cases

Area of Law Cases Filed*

Immigration ........................................... 4 .................... 3%

Workers’ Comp/Labor Relations ........... 4 .................... 3%

Civil Rights ............................................ 2 .................... 2%

Tax ......................................................... 2 .................... 2%

Corporate Matters .................................. 2 .................... 2%

Debt Collection ...................................... 1 .................... 1%

*Totals exceed 133 disciplinary complaints and 100% because many complaints allege several counts of misconduct

arising in different areas of practice.

Practice Setting for Lawyers Sanctioned 1998 – 2002

IV. How to Manage a Grievance

Lawyer disciplinary agencies typically fall into one of two models. They are either stand-

alone entities, operating under the ultimate administrative authority of a state supreme court, or

they are part of a unified bar association. Under either model, the primary goals of a lawyer

disciplinary agency include investigating allegations of misconduct by lawyers and prosecuting

cases where a lawyer's misconduct suggests a threat to the public or to the integrity of the legal

profession. Lawyer disciplinary agencies are structured to provide substantive and procedural

due process. The procedural rules of the disciplinary agencies are matters of public record and it

is important for any prosecutor to be familiar with the disciplinary system in each jurisdiction

where they are licensed.

Most lawyer disciplinary agencies investigate any complaint that has even marginal

validity, not just the most serious charges. That policy is, in part, the result of the fact that the

legal professional is largely self-regulating. Complaints are typically filed by a lawyer’s client or

an opposing party in litigation. Most regulatory authorities have the ability to generate

investigations without the benefit of a grievance. Newspaper accounts of alleged misconduct are

usually sufficient to generate a disciplinary investigation.

In the larger jurisdictions, most agencies have an intake division or a section that screens

all incoming complaints and performs the initial inquiry into the facts. Intake staff members are

usually, but not always, lawyers. Intake staff screens written submissions from complainants to

determine whether the submission, read liberally, describes some misconduct by a lawyer. If not,

Intake staff will close the file, many times explaining the decision in a letter to the complainant,

and notifying the lawyer in writing that a complaint was received but that no response will be

requested.

12

In most cases where staff decide some inquiry is warranted, the inquiry commences with

a letter to the attorney named in the grievance, enclosing a copy of the complainant's submission

and asking the lawyer to submit a written response within a certain number of days. The lawyer's

written response is usually forwarded for comment to the complainant, and the file will be

reviewed by Intake counsel after the complainant's reply is received or past due.

If, at that stage, the submissions and any back-up documentation obtained demonstrate

that the lawyer did not violate professional conduct rules, or at least that a violation could not be

proved, the file will be closed. In most states, files are closed where certain transgressions have

not resulted in harm to a client or a third party and there are no good policy reasons to prosecute

the lawyer. Matters are typically concluded where the lawyer has made a simple mistake, where

the responding lawyer has acknowledged that mistake, and where the lawyer indicates an

understanding of the rules and a willingness to honor them in the future. If the lawyer regulator

concludes that substantial additional investigation is warranted, or that the evidence gathered at

the initial review stage suggests provable misconduct, the file usually assigned to an agency

litigation counsel.

While every case differs, there are certain patterns seen in the grievances submitted

against lawyers that have resulted in the development of some principles to determine which files

can be summarily closed and which grievances should be answered by the lawyers or otherwise

investigated. Following are some of the more commonly invoked guidelines.

A. The Duty to Respond

One must timely respond to a disciplinary inquiry, whether the inquiry is about the

lawyer's own conduct or that of a colleague. That duty is consistent with a lawyer's responsibility

to provide complete and accurate information to admissions authorities for purposes of the

individual is own licensing or that of another. Compliance with those obligations is critical to the

effectiveness of the profession's effort to monitor itself within reasonable cost constraints.

Most lawyers honor those duties. Some, however, avoid their obligations, seemingly in

the hope that ignoring a disciplinary inquiry will make it go away. A disciplinary agency never

goes away until it obtains the answers it needs to resolve an inquiry.

A failure to respond will result in the issuance of a subpoena requiring the lawyer's

appearance at the regulator’s offices for a sworn statement and/or the issuance of subpoenas to

third party sources (e.g., a lawyer's bank) for production of documentation or other information

needed to review the complaint. In many states, the lawyer can be assessed costs associated with

those measures (e.g., the court reporter's fee, bank copying costs) whether or not discipline is

eventually imposed if the subpoena was issued because of the lawyer's failure to respond. In

addition, failure to cooperate in the investigative stages of a case is a separate ethical offense

which can and often does lead to additional discipline.

Reasonable requests for additional time to respond to an inquiry are usually honored.

Indeed, in the long run, taking the time necessary to answer carefully and to provide any back-up

documentation that will help clarify areas of disagreement will often expedite the resolution of

13

the file. A lawyer who wants additional time to respond should call or write the staff attorney

who signed the letter asking for the response.

B. Substance of Response

A good response will provide appropriate background information and legal context,

while addressing as explicitly as is feasible the complaints voiced by the client or other

complainant, all with as little anger and sarcasm as possible. To avoid charges of favoritism,

lawyer discipline agencies resist crediting a lawyer's account over that of a client due solely to

the lawyer's professional status.

If there is a disagreement between a lawyer and a complainant as to any important fact,

disciplinary staff lawyers are expected to test the assertions by reviewing documentation or

interviewing other witnesses with knowledge. A good response will include copies of critical

documents and information on how to contact witnesses with knowledge of disputed facts.

If a response is confusing or incomplete, the staff lawyer will have to do additional

independent analytical and investigative work, and resolution will take longer. Obfuscation that

seems intentional can raise suspicions that expand and prolong the investigation.

While it can be difficult to leave any hint of bitterness out of any response, there are a

number of reasons to try. Emotional attacks on a complainant or the disciplinary system rarely

clarify any issue that will have to be resolved to conclude the file, and, more often than not,

responses that are structured around emotion tend to confuse the issues. Vituperative responses

are unprofessional and they make the lawyer appear unprofessional. As with any legal writing, a

response should be drafted to accomplish the desired result. Lawyers who want the inquiry

ended, as opposed to a prolonged battle with the discipline staff, are well advised to delete

personal or institutional insults from the final draft.

C. Should a Lawyer Retain Counsel to Handle a Response?

Discipline staff is often asked if it is important for a lawyer to secure representation when

responding to a disciplinary inquiry. The answer depends both on the nature of the inquiry and

the comfort level of the lawyer who has become the subject of the grievance.

If a lawyer knows an inquiry involves something serious, he or she should retain counsel

at the earliest possible opportunity. Examples of potentially serious problems include instances

where lawyers (1) have allowed a cause of action to be lost, a default judgment to be entered

against a client, or an appeal to be dismissed because of their failure to take appropriate action;

(2) have become involved in business transactions with clients without appropriate disclosures or

independent representation for the client; (3) have been convicted of a criminal offense, whether

misdemeanor or felony; (4) have been accused of mishandling funds; or (5) have been accused of

fraud or dishonest conduct, including false statements to a court, client, or some other party, or

fraudulent or deceitful conduct that does not involve the practice of law.

14

Even in cases that are not likely to result in disciplinary charges, many lawyers are well

served by securing representation. A fair number of lawyers who represent themselves make

their problems worse by not admitting the obvious, being afraid to acknowledge an error where

the acknowledgment is all the disciplinary staff needs to close the file, or obstinately avoiding

answering questions that have to be resolved. Representation can help avoid those problems

while providing the respondent lawyer with some peace of mind upon receiving informed legal

advice on what is likely to happen. At a minimum, it would be wise to ask a trusted colleague to

review a response to a disciplinary inquiry before it is submitted.

D. Pitfalls and Dilemmas Arising in Responding to an Inquiry

A very few lawyers make the mistake of falsifying documents or misrepresenting facts in

their responses. This is another area in which the disciplinary system is rigid. If discovered,

those lawyers will face formal discipline charges and probably some suspension, even if the

underlying conduct they tried to hide was not itself serious.

A related phenomenon is the dishearteningly frequent tendency of lawyers to try to

conceal their failings from their clients by pretending to have filed cases that were never filed,

pretending to have court dates on cases that have been dismissed, and even pretending to have

secured settlements or judgments on cases that have been lost through the lawyer's dereliction.

Evidence of such a misrepresentation to a client will often turn a case that might have been

resolved informally into a case with formal charges and some sanction.

Lawyers also sometimes make the mistake of trying to settle the underlying controversy

with the client without appropriate disclosures and/or with the improper request that the client

agree to withdraw the disciplinary complaint. Rule 1.8(g) prohibits a lawyer from settling a civil

claim against the lawyer by an unrepresented client or former client without first advising the

person in writing that independent representation is appropriate. Rule 1.8(h) prohibits a lawyer

from entering into an agreement purporting to limit a client's or former client's pursuit of a

disciplinary complaint against the lawyer. Violating those rules in the midst of attempting to

defend a disciplinary inquiry can add to a lawyer's disciplinary problems.

On the other hand, some lawyers view the pendency of a discipline inquiry as preventing

them from addressing legitimate client demands or claims. The rules do not preclude lawyers

from refunding unearned fees, paying out disputed settlement funds, or even settling malpractice

claims of clients while a disciplinary inquiry is pending. Instead, the rules constrain the terms of

any agreements concerning such payments or settlements as described above.

Lawyers often ask what their duties are with respect to ongoing representation of clients

who have filed bar complaints. The fact that the complaint was filed does not automatically

require a lawyer to withdraw from representing the client. On the other hand, the particulars of a

given complaint may mandate or at least strongly advise withdrawal. In such cases, lawyers

should be careful to honor the dictates of Rule 1.16 concerning notice to the client,

accomplishing withdrawal to avoid prejudice to the client's rights, securing permission of the

tribunal when an appearance has been filed, and refunding any unearned portion of a fee paid

prior to the withdrawal.

15

Another issue that arises when lawyers respond to disciplinary inquiries is the scope of

the attorney-client privilege. In most states, there is an ethics rule that permits a lawyer to use or

reveal client confidences or secrets necessary to defend the lawyer or the lawyer's associates or

employees against an accusation of wrongful conduct. From time to time, lawyers pay too little

heed to the rule's limitation that the information can be revealed only when necessary to defend

against the accusation. This self-defense exception to the privilege rule should not be seen as an

invitation to engage in character assassination of a grievant. By the same token, the lawyer

cannot use the attorney-client privilege as an excuse for not turning over information sought in a

disciplinary investigation.

Except in but a few jurisdictions, any information gathered in investigating a disciplinary

complaint is confidential and cannot be revealed to outside sources absent court order. Many

files, however, require that disciplinary staff verify information by asking persons with

knowledge to confirm or deny matters asserted by others. Staff appreciates being informed

whenever there are specific reasons for not communicating information to particular persons. For

instance, revelation of particular information to a party in a case that arose from a physically

abusive relationship could endanger another, and staff will avoid making such a disclosure if

forewarned. If there is pending civil litigation related to the matter at issue in the inquiry, the

agency will attempt to avoid allowing its investigative resources to be used by the parties to the

civil suit, and disclosures to persons connected with the litigation can be restricted to prevent

misuse.

Note: Much of the information above was taken from Mary Robinson’s Avoiding ARDC

Anxiety: A Disciplinary Primer, 84 ISBA Journal 452 (September 1996) found at:

http://www.iardc.org/article_avoidanxiety.html.

V. Is a Disciplinary Tribunal the Appropriate Forum of Review for

Every Ethics Violation?

No. A violation of professional responsibility guidelines subjects a lawyer to scrutiny in a

number of different ways. The attorney could be liable in a malpractice context, face criminal or

civil sanction, or be named as a respondent in a lawyer disciplinary proceeding. Lawyer ethics

codes are promulgated and applied primarily for the purpose of establishing mandatory standards

for the assessment of a lawyer’s conduct in the course of a professional discipline proceeding

brought against the lawyer. See generally, ALI Restatement of the Law Third, The Law

Governing Lawyers at §1, Comment (b)(2001). Not every violation of an ethics code warrants

the imposition of discipline. Even though a failure to comply with an obligation or a prohibition

imposed by an ethics rule is a basis for invoking the disciplinary process, the rules presuppose

that any disciplinary assessment of a lawyer’s conduct will be made on the basis of the facts and

circumstances as they existed at the time of the conduct in question and in recognition of the fact

that an attorney often has to act upon uncertain or incomplete evidence of the situation.

Moreover, the Rules presuppose that whether or not discipline should be imposed for a violation,

and the severity of a sanction, depend on all the circumstances, such as the willfulness and

seriousness of the violation, extenuating factors and whether there have been previous violations.

See ABA Model Rules of Professional Conduct, Scope ¶19 (2002). Often times, disciplinary

regulators conclude investigations initiated against lawyers without recommending the filing of a

16

formal complaint even where there has been an acknowledged or demonstrated violation of the

ethics rules. Formal charges can be avoided where the misconduct is isolated, moral turpitude is

not involved, and where there are no aggravating factors. Atypical errors and omissions might

therefore result in an informal and private admonition rather than a public proceeding against the

lawyer because the regulator believes that the matter might be better resolved in a non-

disciplinary context.

The case of In re Mason, 122 Ill.2d 163, 522 N.E.2d 1233 (1988) is instructive. There,

the Supreme Court of Illinois considered disciplinary charges brought against a lawyer who

essentially neglected a legal matter entrusted to him. In considering the formal disciplinary

charges, the Court ruled:

In determining whether the failure to file the statutory notice constitutes neglect or

incompetence warranting discipline, it is important to note that we are not

determining whether the conduct was negligence sufficient to provide one of the

elements of a malpractice suit. The ultimate determination which a court or jury in

a malpractice action makes is whether the cost of an attorney's error (if that error

has been proven) is to be borne by the attorney or the client who relied upon him.

The objective of a disciplinary proceeding is, however, entirely different. Its

purpose is to protect the public, to maintain the integrity of the profession, and to

protect the administration of justice from reproach…For this reason, we need not

determine whether respondent's failure to file the notice could be a basis for

holding him liable for any proximately resulting damages, and we likewise need

not determine whether (in view of the notice which the CTA did receive) the

failure to strictly comply with the statutory provision would have barred the suit.

There can be no doubt that the most prudent course of conduct would have been

to strictly comply with the statutory notice provision, in order to avoid any risk of

forfeiting the client's claim. However, regardless of whether respondent's failure

in this respect was "negligence" in the malpractice sense, this oversight, standing

alone, simply cannot be deemed neglect or incompetence within the meaning of

the pertinent rules of the Code. We recognize that attorneys have been disciplined

in the past in part for failing to file a claim within the applicable limitations

period. (See, e.g., In re Levin (1979), 77 Ill.2d 205, 32 Ill. Dec. 870, 395 N.E.2d

1374; In re Milwid (1978), Docket No. 49718 (unpublished order).) However,

these cases have typically involved situations in which the attorney had set the

case aside in favor of other matters. By contrast, respondent herein was generally

actively pursuing the case at all relevant times and was frequently in touch with

his client. Moreover, he was well aware of the limitations period, which generally

any competent attorney would either be familiar with or would routinely check

upon accepting a case. What this young, relatively inexperienced sole practitioner

did not recognize was the much less widely known "notice" requirement of the

Metropolitan Transit Authority Act. While fairness requires a reasonable degree

of consistency and predictability in attorney discipline, each matter is unique and

must be decided upon its own facts…Given the facts of this case, we conclude

that respondent's isolated oversight, although certainly not to be condoned, is

simply not sufficiently culpable to warrant discipline.

17

VI. The Himmel Doctrine-IRPC Rule 8.3-One State’s Experience

On September 22, 1988, the Illinois Supreme Court suspended a sole practitioner for one

year for failing to report the misconduct of another attorney. In re James H. Himmel, 125 Ill.2d

531, 533 N.E.2d 790. Rehearing was denied the following January.

The Court’s decision was not without precedent, as it had previously considered the

reporting requirement in the context of a lawyer reinstatement proceeding. During May Term

1988, the Court released an opinion in In re Frank A. Anglin, Jr., 122 Ill.2d 531, 524 N.E.2d

550. There, a disbarred attorney refused to answer questions during the reinstatement proceeding

about the involvement of other persons to the criminal activity that led to his disciplinary

sanction. The Court ruled that the Petitioner’s code of silence indicated that he was not fully

rehabilitated or fit to practice law.

Himmel was prosecuted under old Rule 1-103 of the Illinois Code of Professional

Responsibility. During the course of the disciplinary proceeding, the Respondent was pro se.

Rule 1-103 was superseded in 1990 by Rule 8.3 of the Illinois Rules of Professional Conduct , a

rule at some variance with existing national standards that are incorporated in Rule 8.3 of the

American Bar Association Model Rules of Professional Conduct.

The full text of Illinois Rule 8.3 appears as follows:

IRPC 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.

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Since the issuance of the Himmel opinion, the Illinois ARDC has received more than

10,000 Himmel reports filed by lawyers and judges against members of the Illinois Bar. The

vast majority of these reports do not involve allegations of moral turpitude-type offenses.

Investigations opened as a result of attorney reporting is usually concluded without the need of

formal disciplinary action. Notwithstanding the fact that many grievances filed by lawyers are

not subject to formal action, a significant percentage of the formal disciplinary caseload over the

past several years was generated as a result of a lawyer or judge filing a Himmel report. In 2007,

for example, more than one out of every four formal complaints was the product of an attorney

report.

As noted above, the Court disciplined Himmel under former Rule 1-103(a) of the Illinois

Code of Professional Responsibility, a provision that Illinois rule drafters believed was

substantively identical to ABA. Model Code 1-103(a). In 1990, the Court had the opportunity to

adopt Model Rule 8.3(a) but declined to do so, instead opting for a provision identical to old

Illinois Rule 1-103(a). In adopting a new ethics code in 1990, however, the Court noted the

widespread interest in its Himmel ruling by adopting Rule 1.2(e). Rule 1.2(e) provides that 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. A statistical summary

of twenty years Himmel reports filed with the ARDC appears as follows:

19

Year

Number of

Grievances

Numbers of

Attorney

Reports

Percent of

Attorney

Reports to

Grievances

Number of

Formal

Complaints

Voted

Number of

Attorney

Reports for

Complaints

Voted

Percent of

Attorney Reports

to Formal

Complaints

1988 est. 5,817 154 + 2.6 214 - -

1989 est. 6849 922 13.4 343 - -

1990 est. 7634 681 8.9 349 - -

1991 est. 7,022 539 7.6 325 - -

1992 7,338 554 7.5 277 50 18.0

1993 6,345 594 9.4 241 48 19.9

1994 6,567 578 8.8 247 54 21.8

1995 6,505 555 8.5 277 38 13.7

1996 6,801 549 8.0 300 60 20.0

1997 6,293 591 9.4 342 64 18.7

1998 6,048 539 8.9 259 54 20.8

1999 5,877 517 8.8 231 54 23.0

2000 5,716 512 8.9 224 31 13.8

2001 5,811 201 3.5 273 27 9.8

2002 6,182 346 5.6 334 53 15.8

2003 6,325 510 8.1 353 44 12.5

2004 6,070 503 8.3 320 42 13.1

2005 6,082 505 8.3 317 47 14.8

2006 5,800 435 7.5 217 35 16.1

2007 5,988 525 8.8 284 82 28.9

Totals

for 1988-

2007

127,070

10,310

8.1

5,727

-

-

Totals

for 1992-

2007

99,748

8,014

8.0

4,496

783

17.4

Average

For 1992-

2007

6,234

501

8.0

281

49

17.4

Two subsequent decisions have reaffirmed the Supreme Court’s Himmel ruling. First, the

law firm of Altheimer & Gray filed a grievance with the ARDC alleging that the firm had

inadvertently filed a forged document in the Circuit Court of Cook County and revealing that an

unknown person in the firm, possibly a lawyer, had created the bogus document. After an

+ Reporting statistics were not kept until October 4, 1988. * The method of tracking attorney reports changed in these years and as a result a number of attorney reports were

not recorded. Therefore, the number of attorney reports is likely underreported for 2000 and 2001.

20

investigation, the disciplinary authority publicly charged Kenneth A. Skolnick, an equity partner,

with causing the false document to be filed. A Hearing Board determined that a forged document

had been filed, but concluded that there was no clear and convincing evidence that Skolnick was

the responsible actor. Thereafter, Skolnick filed suit in state court against the firm and a young

firm associate alleging that they had defamed him in front of clients and others. An agreed

protective order was entered and applied to all information learned during the course of

discovery. The defendants later asked the trial court to modify the protective order because,

during the course of discovery, they received records generated by non-party entities indicating

that Skolnick had engaged in purported misconduct unrelated to the initial disciplinary

proceeding. The defendants wanted to report this further information to the ARDC but the trial

court declined to modify the protective order. The Illinois Supreme Court eventually ruled on

the matter and unambiguously and unanimously affirmed the Himmel doctrine, holding that the

reporting obligation is absolute. The Court defined the necessary degree of knowledge that

triggers a Rule 8.3 obligation, namely that a lawyer must have “more than a mere suspicion” of

another lawyer’s misconduct, but that it need not amount to “absolute certainty.” Further, the

Court ruled that the tribunal to report misconduct is the ARDC in Illinois, not a trial court.

Finally, the Court noted:

We have examined the documents filed under seal…We will not divulge the

contents of the documents, but we are satisfied that the information contained in

the documents raises more than a mere suspicion of misconduct by Kenneth

Skolnick…We emphasize, however, that while we conclude that [the young

associate] had a duty to report the suspected misconduct to the ARDC, we do not

render an opinion as to the merits of any charges that may or may not be filed

against Kenneth Skolnick as a result of the information the ARDC receives in

relation to this matter.

Kenneth Skolnick et al., v. Altheimer & Gray, et al., 191 Ill.2d 214, 730 N.E.2d 4 (March 23,

2000), reh’g denied (May 30, 2000). Subsequently, formal disciplinary charges were lodged

against Skolnick charging that he had, during 1993 and 1994, submitted a series of applications

to commercial lenders that misstated his financial condition. Skolnick, who was licensed in 1972,

was suspended for three years. In re Kenneth A. Skolnick, M.R. 17529, 00 CH 92 (Ill. June 29,

2001).

In another case, a downstate lawyer was suspended for nine months for failing to report

the misconduct of another lawyer and for conflicts of interest. Thomas Daley represented seven

criminal defendants, all bartenders whose businesses had been raided for allowing illegal

gambling on the premises. He never consulted these clients about his representation or secured

their knowing consent to potential conflicts of interest. Daley undertook six of these cases at the

behest of his employer, lawyer Amiel Stephen Cueto, and the owner of the gambling devices,

Thomas Venezia, a Cueto client. The seventh case came to him directly from Venezia. Out of the

seven clients, Daley only spoke with one of them, and only because that bartender telephoned

him, but even then he signed a jury waiver in that client’s case without discussing the issue with

the client. While Daley was representing one of the bartenders, Cueto arranged for a hearing on

an alleged motion to dismiss in that case, although Daley, who was representing the bartender,

had never filed a motion to dismiss the charge. In fact, Cueto obtained a court order in the

21

bartender’s case requiring an Illinois Liquor Control Commission agent who had been raiding

the bars to appear in court for a hearing on a motion to dismiss. Daley learned of this phantom

order when, as they walked to the courthouse together, Cueto told him that the order was a

pretext to lure the agent to the courthouse. At the courthouse, the agent appeared in compliance

with the false court order and was immediately served with a subpoena in another case, filed by

Cueto. The subpoena required the agent to appear at a hearing for injunction at 9:30 a.m. before a

judge. Cueto was seeking to enjoin the agent from harassing Venezia and arresting bartenders.

Although he had not been served with a summons or petition for a preliminary injunction, the

appeared and, despite his requests for an attorney, was forced to testify and disclose the existence

of an ongoing undercover FBI investigation concerning the illegal gambling operations of

Venezia. Daley never reported Cueto’s use of the false court order to the ARDC or to any

tribunal. In re Thomas Michael Daley, M.R. 17023, 98 SH 2 (Ill. Nov. 27, 2000).

On a related issue, the Illinois Supreme Court recently imposed discipline against a

lawyer who attempted to use the threat to report an ethics violation to secure an advantage in a

civil matter. See In re Peter Michael Soble, M.R. 21558, 07 RC 1502 (Ill. May 18, 2007).

Finally, any report filed with the ARDC must be truthful. An Illinois attorney was

suspended for six months for filing a false disciplinary grievance against another attorney and

then lying about his conduct, under oath, to the disciplinary authority. In re David Warren

Olivero, M.R. 17228, 98 SH 54 (Ill. March 22, 2001). Olivero used the name of one of his

former clients without the former client’s knowledge and used a false address. There was

absolutely no legitimate basis for the information recited in the complaint. The hand-written

complaint form purported to be from a person named Louis of Spring Valley, Illinois. The

grievance stated that Louis had been approached at a local hospital by his physical therapist who

suggested that he employ a local attorney named Scott to file a claim on his behalf. The

grievance further alleged that Louis was told by the therapist that Scott "takes care of me when I

send him patients" and that Scott was using "the physical therapy department to get business."

Based upon the grievance, the ARDC initiated an investigation of Scott, who was required to

respond to the matter. It was not until much later that Olivero admitted his misconduct on the eve

of his appearance, under subpoena, to provide a handwriting exemplar to the disciplinary

authority. In reviewing Olivero’s misconduct, the ARDC Review Board noted:

We have carefully reviewed the cases cited by the parties and carefully considered

all the evidence presented. We have also considered the duty of attorneys to report

unprivileged knowledge of misconduct by other attorneys...In essence, Olivero

was attempting to bring to the attention of the ARDC suspected professional

misconduct by another attorney. This is a legitimate purpose. However, Olivero

engaged in misconduct, and is subject to discipline, because of the manner in

which he did so. Instead of truthfully indicating, in a document submitted in his

own name, that he had heard information which caused him to suspect that

Ganassin was engaged in improper solicitation, Olivero submitted a false report,

using someone else's name, and thereby deceived the ARDC. Additionally,

Olivero acted based upon very little information, and without any personal

knowledge of the matters alleged or any prior investigation. While an attorney's

obligation to report misconduct under Himmel is absolute…we believe attorneys

22

making Himmel reports must give information accurately and in context. The

disciplinary system cannot countenance the intentional making of false reports,

nor the making of reports based solely on unfounded suspicion. (ARDC Review

Board Report in 98 SH 54 (October 30, 2000).

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