“Basel Train,” Masakazu Matsumoto (CC-by- 2.0)
It’s been a hard and confusing time for so many, in so many ways, that it almost seems like folly to write a blog post sorting out the ethics of the difficulties of practicing law. We’re all trying to survive out here, not really thinking about Rule 3.2. Not even ethics lawyers; your correspondent has been quite honestly grappling with a kind of analysis paralysis, trying to figure out the best way to contribute to the life of a profession on lockdown. For starters, it makes sense to look at the Illinois regulatory environment right now.
Getting a read on what’s happening in the Illinois legal ethics space is not easy. For a while, the Illinois ARDC was continuing to operate as normal; now the lawyers and staff are working from home, and will do so for the foreseeable future. At first, it was not immediately apparent what would happen to scheduled disciplinary hearings, prehearings, and other proceedings typically requiring personal appearances; now they’ve all been continued until further notice. The agency is asking for email communications only; yet it still receives many, many communications via regular mail, and as a result it remains a captive to paper files to some degree.
Investigations in the COVID Era
Illinois lawyers should know, though, that both investigations and formal cases can proceed and are proceeding. ARDC staff lawyers are sending requests for information via email that used to be sent via regular mail; they are also forwarding lawyers’ responses to complainants via email. In a way, this is a heartening development, one that would make ARDC more efficient in the future. It does, however, alter the timing and dynamics of investigations in a way that can even knock experienced practitioners for a loop.
Complainants’ replies to lawyers’ responses can now be nearly instantaneous, and can more immediately affect the way in which the ARDC staff lawyer sees the case or interprets the evidence. Complainants who may have put off assembling and mailing a reply can now simply dash one off and hit “send,” and the ARDC can as quickly ask for further information from the lawyer.
In the many thousands of investigations that do not result in formal disciplinary charges, the acceleration can be a good thing, as it can lead to a faster determination to close an investigation. But it also makes the complainant less distant, more urgent – a different kind of adversary, leading potentially to the respondent-attorney feeling the presence and existence of the investigation more deeply. The increase in speed can increase the stress.
Formal Disciplinary Cases in the COVID Era
Traditionally, the ARDC Annual Report is published toward the end of April every year. That is our main source of official tallies of the number of investigations initiated every year, and the number of formal disciplinary cases that follow from those investigations. It’s reasonable to guess that the Annual Report will be delayed this year, although we don’t know for sure.
We have seen a declining trend in the number of formal cases over several years. We’ve written about what we expect the 2019 statistics to reveal: further and continuing declines in the numbers of both investigations and cases. You might think that COVID-19 and its effects would hasten or magnify that decline for 2020 – but thus far, has it? The Administrator has already filed 11 formal complaints in 2020, with 4 of them coming on or after March 18. That’s only one off from the number of filings during the same time frame in 2019.
There will surely be a lag in the shutdown’s effects on the disciplinary system. March 18 was, after all, two days before Gov. Pritzker’s stay-in-place order was issued. The Administrator’s system of seeking permission to file formal complaints can be and often is conducted remotely; but like hearing and appellate proceedings, it depends on the time that volunteer lawyers can give to it, and on what work ARDC staff lawyers can complete while working remotely. That system may experience delays, which may lead to future slowdowns in new case filings – that is, new cases will be put on hold while older cases are dealt with. Also, with in-person proceedings delayed indefinitely, the cases that are filed will likely not move forward in a meaningful sense until after the stay-in-place order is lifted.
But the message is: the ARDC may be, like the rest of us, coping with a new normal. But it hasn’t closed up shop, and lawyers – and all stakeholders in the Illinois legal system – should be aware of how its work is continuing. Stay tuned.
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