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Brass Tacks Post: We Made Up. Now What?

One scenario that’s come up many times on both the prosecution and the
defense sides of the ethics fence is the attorney-client make-up. The
lawyer and client don’t communicate at all, or effectively, for a while; the client has a misimpression of the status of a matter; there is a noticeable, but harmless, period of inactivity in a matter. The client, frustrated, writes to the ARDC and asks for an investigation. Then, prior to the lawyer submitting a response, she fixes the gap in communications is fixed with a status update from the lawyer, or begins the process of wrapping up the delayed matter. The client, realizing that everything has been cleared up with no lasting damage, doesn’t want to make trouble and doesn’t see the need to continue with the ARDC investigation.

Should the client write to the ARDC and say “please drop the investigation” or “I wish to withdraw my complaint”? Should the lawyer tell the ARDC that the client has expressed such sentiments? What (if anything) can be done to let the ARDC know that the situation has been resolved?

It seems logical to want to advise the ARDC that the parties to the dispute no longer are in dispute. And yet to do so inartfully might cause further problems for the lawyer. For example, a lawyer unhappy about having to respond to a now-mooted client complaint might say something in her response to the ARDC like “Having now informed Client of the status of her matter, she has confirmed that she no longer wishes to pursue this complaint. Please confirm that you will close this investigation promptly.”

This kind of response will cause concern at ARDC, partly for its high-handed tone, but more importantly, for its suggestion of the presence of a Rule 8.4(h) problem:


It is professional misconduct for a lawyer to: […]

(h) enter into an agreement with a client or former client limiting or purporting to limit the right of the client or former client to file or pursue any complaint before the Illinois Attorney Registration and Disciplinary Commission.

The lawyer’s response does not per se suggest that she has violated Rule 8.4(h). There is no explicit suggestion that she has entered into an agreement with Client limiting Client’s right to pursue the ARDC matter. But it does create the concern that the lawyer and client have spoken to one another about the client abandoning the ARDC matter. That, in turn, is enough to raise a question for the ARDC about whether the lawyer has in any way – even impliedly – influenced the client’s decision with regard to the ARDC case. The ARDC may also find it irksome as a practical matter, since there is really no way for a client to “withdraw” an ARDC investigation. Only the ARDC itself can determine not to proceed.

The lawyer should not put herself in that position, and it doesn’t serve the client well either. If lawyer and client agree that the professional relationship has been repaired, neither of them would want to prolong the ARDC’s inquiry on a tangential subject. To avoid such problems, a better way for the lawyer to address the client’s newfound satisfaction would be simply to say, in the response, that the relationship has been reestablished, and that communication between lawyer and client is at an appropriate level. The ARDC will send a copy of the lawyer’s response to the client, who can choose to reply to the response, or to ignore it. Lawyers often ask whether they can communicate with the client during this part of the process. The answer is:

  1. Yes, you can.
  2. You should communicate with the client about the representation, even during an ARDC investigation (in most cases).
  3. You should not communicate with the client about the ARDC investigation.

Rather, the lawyer’s best course would be to ensure that it can always be said that the client made her own decision about how to handle the ARDC matter, with no input or influence by the lawyer. If the client chooses not to reply to the lawyer’s response, the ARDC can then proceed to determine what other information may be needed, or, perhaps, to close the investigation.

That is where everyone in this situation should want to be – it works out most palatably and most efficiently for all concerned to avoid discussing “withdrawing the ARDC complaint.” If it’s meant to go away, it will, without unnecessary words being spoken.

photo credit: MicroAssist (CC)

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