2010 – A Rules Odyssey

On January 1, 2010, Article III of the Supreme Court Rules – The Illinois Rules of Professional Conduct change. The January 1st changes bring about uniform formatting together with codification of several important changes to protections offered to clients and attorneys.

The changes also include the addition of a welcome comments section to provide insight into the reasoning behind the rules and add clarity and case law where applicable. Fortunately for Illinois attorneys, in addition to reading and comparing the modification to the former rules themselves, there are numerous avenues to explore and understand the rules including CLE programs by organizations such as the ARDC and online at www.ApexCLE.com. A few of the highlights are set out here.

Protections for Clients and Attorneys

The Rules of Professional Conduct also includes several new rules, including Rule 1.18 which broadens the protections provided clients under the Rules to include prospective clients. An individual seeking an initial consultation with an attorney need no longer worry about sensitive information presented during the consultation. An attorney is prohibited from revealing or using the information revealed during a consultation with a prospective client. Further, these prospective clients are protected if an attorney is currently representing a client with interests that are materially adverse to the prospective client.

If the matter is sufficiently related to the representation of the current client and the information could be significantly harmful, the lawyer or firm will be disqualified from representing the current client. However, if both the affected client and prospective client have given informed consent, or the attorney who received the sensitive information took reasonable care to minimize her exposure, timely screened herself off from the client’s matter, and will receive no fees from the current client, then a firm may continue to represent the current client.

Lawyers acting as mediators and arbitrators are addressed within Rule 2.4 which attempts to remedy the potential for confusion within the mediation process. This rule attempts to remove the confusion, requiring attorneys acting as neutrals to inform unrepresented parties they are not acting as an attorney and explain the difference between an attorney as a neutral party and an attorney representing client. The level of explanation and detail of the information required is not yet clear. The comments to the Rules recognize that varying levels of understanding exist and provide that:

… The lawyer should inform unrepresented parties of the important differences between the lawyer’s role as third-party neutral and a lawyer’s role as a client representative, including the inapplicability of the attorney-client evidentiary privilege. The extent of disclosure required under this paragraph will depend on the particular parties involved and the subject matter of the proceeding, as well as the particular features of the dispute-resolution process selected.

Client Property and Retainer Agreements

Rule 1.15, governs the safekeeping of client property and underwent several changes which warrant much more examination than can be provided here. Section b provides that an attorney can deposit their own funds into a client trust account for the sole purpose of paying bank fees, but only in an amount necessary for that purpose. Provisions within Rule 1.15 that allowed for a lawyer to deposit their own funds into a client account to avoid incurring bank service charges have been removed.

Retainer agreements have received extensive court review and commentary over the last few years. The rules establish clear requirements for advanced payment retainer agreements, and limit their use to “only when necessary to accomplish some purpose for the client that cannot be accomplished by using a security retainer.” An advanced payment retainer agreement must be in writing and signed by the client, using the words “advance payment retainer” to describe the retainer.

An advance payment retainer must also include the reason for the advance payment retainer and its particular usefulness to the client; a statement that the retainer will not be held in a client trust account, that it will no longer be the property of the client, and that it will be deposited in the lawyer’s general bank account; a detailed explanation of how the funds will be utilized; and that the client has the option to employ a security retainer, however if the attorney is unwilling to proceed without a security retainer, the agreement must state and provide the attorney’s reasons for not doing so.

Advertising beyond Paper and Pen

The modified Rules now address a wide range of attorney advertising within Rule 7.2. The former rule addressed advertising in telephone directories, legal directories, newspapers or other periodicals, billboards, radio or television but did not include any electronic media existing via the Internet. The rule has been modified to provide that a “lawyer may advertise services through written, recorded or electronic communication, including public media.” For those attorneys posting blind ads for legal services on social networks and boards such as Craigslist, they may wish to review the slightly modified, but continuing, requirement that “Any communication made pursuant to this Rule shall include the name and office address of at least one lawyer or law firm responsible for its content.”

The present day update carries over to Solicitation under Rule 7.3 which has been modified and prohibits live personal contact by an attorney through real-time-electronic means, such as an instant messaging program or text messaging.

The modified Rules address changes in the legal profession that are merely a reflection of the changes in the evolving electronic society. Further information is posted on the Illinois Supreme Court’s website and in the Ethics section at www.ApexCLE.com where there are additional resources for attorneys on Illinois Professionalism and online CLE. The resources include Professionalism CLE, ethics material, and ethics links. In addition, ApexCLE publishes the annual State of The Practice: A Review of Illinois Ethics and Professionalism Investigations.