ARDC Rule Changes and Updates: Costs and Intermediaries

by Jim Doppke

In this post, we’ll take a look at two orders recently entered by the Supreme Court that affect the ARDC and its operations. One of the orders also affects lawyers who are being or have already been prosecuted, and the other affects lawyers who may be at risk of becoming the subject of an investigation.

Amendments to Supreme Court Rules 767 and 773

In its May 23, 2019 order, the Court amended Rules 767 and 773 to increase the amounts that disciplined lawyers are required to pay in two contexts. Rule 767 pertains to reinstatement petitions, which must be filed by any lawyer who wishes to resume practice after being disbarred or suspended until further order of court. Previously, Rule 767(c) required the petitioner to deposit $500 with the Clerk of the Commission upon filing the petition, “to be applied against the costs, as defined in Rule 773, necessary to the investigation, hearing and review of the petition.” The amended Rule increases the amount of the cost deposit to $1,500.

Rule 773 has always set forth the obligation of a disciplined lawyer to pay some portion of the costs derived from the prosecution that resulted in the discipline, but the nature of that obligation has changed over time. The most recent amendment to the Rule, in 2000, fixed the minimum amount of the lawyer’s payment at $1,000, with the Administrator required to petition the Court for approval to seek amounts in excess of that. Now, with the Court’s May 23 amendment, the minimum amount has been raised to $1,500. The recent amendment also eliminated copying costs as a category of expenses for which the Administrator will be able to seek reimbursement. The latter amendment may reflect the Court’s expectation that the litigation of disciplinary matters will continue to progress toward being fully paperless, or at least, paperless enough that copying costs will be negligible.

Many lawyers who have the unfortunate experience of being disciplined are surprised to learn about the costs obligation; and many lawyers who seek to re-enter the profession struggle with the financial burdens of doing so. It’s important, therefore, to publicize those obligations as they increase.

Commission Intermediary Program

The Court’s June 4, 2019 order approving the establishment of “an intermediary program pursuant to Rule 1.6(d) of the Illinois Rules of Professional Conduct” is not as clear-cut as the Rule amendments. The ARDC has not, to my knowledge, promulgated any materials setting forth the scope of its “intermediary program,” or describing how it will work.

The provisions of Rule 1.6(d) relating to “intermediary programs” in general are:

Information received by a lawyer participating in a meeting or proceeding with a trained intervener or panel of trained interveners of an approved lawyers’ assistance program, or in an intermediary program approved by a circuit court in which nondisciplinary complaints against judges or lawyers can be referred, shall be considered information relating to the representation of a client for purposes of these Rules.

Emphasis added. Rule 1.6(d) thus protects communications that lawyers make when they are seeking treatment or support, and it includes “intermediary programs…in which nondisciplinary complaints against judges or lawyers can be referred” in the scope of its protections.

But what are “nondisciplinary complaints against judges or lawyers”? In the February 2019 issue of Bench & Bar, the Hon. Michael S. Jordan sheds light on 40 years’ worth of efforts toward establishing an intermediary program involving judges, including an informal effort in the 1970s that addressed “non-ethical concerns by lawyers to judges to better ease the administration of justice allowing judges to know when their actions brought discomfort or disrupted rather than aided the administration of justice and civility.”

So: a way to informally, but confidentially, let judges know that their behavior had crossed lines, but not in a way that implicated the Code of Judicial Conduct. How might that work with respect to lawyers, who are – theoretically and in reality – subject to being reported to the ARDC for any and every kind of conduct? Judge Jordan continues:

The Bench & Bar Section Council concluded that a variation of the program ongoing in Champaign would be useful in all other counties and circuits and that it might be useful if the messages could be two-directional allowing lawyers to continue to convey messages of concern on non ethical issues not dealing with the merits of cases to judges, but also to allow judges to convey similar matters to lawyers in a non-confrontational manner and, where possible, without attribution to any particular judge.

Emphasis mine. Judge Jordan lamented the unsuccessful effort to establish a statewide intermediary program administered by the ISBA; now, it appears that something like that may be soon to be developed under the auspices of the ARDC.

Without knowing the precise features of an ARDC-led program, it is difficult to predict an outcome; but even at a distance I can see both benefits and pitfalls. I would be heartened if some matters that currently become the bases for disciplinary investigations or prosecutions are instead diverted to a more confidential, less formal process, one that need not be reported to insurers or disclosed to other agencies. I would be more than heartened if the availability of an intermediary program helped to diminish mindsets that take pleasure in using the ARDC to cause trouble for other lawyers, or that see the ARDC as an omnipotent actor that can help steer toward a desired result.

At the same time, though, I would worry that an intermediary program would generate yet more work for ARDC of a type with which it is already swamped: confidentially examining situations that, while problematic, do not rise to the level of violations of the Rules of Professional Conduct. I caution that I do not know what structures would be or will be put in place to handle that work, or what ARDC will do to assist in allaying the concerns brought to it in an informal way. I look forward to seeing those aspects of the program develop, and I do share Judge Jordan’s hope that a statewide program can assist in the efficient administration of justice.

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