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Closing the Books on 2019?

The new year is well underway, and lawyers are already looking ahead, planning and executing and looking to grow. One thing our firm always does at this time of year is look around at the regulatory environment. We analyze what we’ve seen and heard, what our experiences have been, and what data – especially the data representing we know about ARDC’s enforcement efforts over the past year – can tell us.

It can be hard to tell exactly when we know the number of formal disciplinary complaints that the Administrator of the ARDC has filed during a given calendar year. It seems like an easy calculation: how many were filed as of December 31? But often it’s sensible to wait until mid- or even late January to start counting. ARDC can and does file complaints in December. But service of those complaints on the respondent-attorney is often not completed until January. Sometimes that’s due to difficulties in contacting the respondent-attorney. Other times, the Administrator chooses to wait until after the holiday season to serve the complaint. Either way, it’s a significant decision, because the complaint does not become public until after the proof of service is filed with the Clerk of the Commission. You won’t see a complaint on the ARDC website, or anywhere else, until that happens.

So even as I write this, we still don’t know if the final 2019 complaint has been served, and if the next complaint we see will have a 2020 case number. But if that’s the case, then we can say that the Administrator filed 41 formal disciplinary complaints in 2019. That number includes only formal complaints filed under Supreme Court Rule 753 (alleging a violation of the Rules of Professional Conduct) or Supreme Court Rule 761 (alleging that the respondent-attorney was convicted of a criminal offense). It doesn’t include filings relating to reciprocal discipline, motions that lawyers file to disbar themselves voluntarily, or petitions for discipline on consent. Just the complaints – the documents filed before the Hearing Board of the Commission that begin the public process of seeking to affect an attorney’s right to practice law.

The Administrator filed 59 complaints last year, a low number in keeping with a multi-year decline. If this year’s number is indeed 41, that too is in line with the declining trend. Before that trend began, it was common for the Administrator to file more than 100 complaints in a calendar year.

During each year of the declining trend, we try to understand it and give the profession our best analysis of the reasons for it and the prospects for its future. The profession should know and understand the regulatory landscape, and the Administrator’s methods of enforcement are a large part of that. We have previously noted that the number of disciplinary investigations the Administrator receives has also been in decline, from an average just over 6,000 per year to about 5,000 per year over the past few years. In one sense, that means that the Administrator has had fewer potential cases to examine, less information on which to determine whether a given case requires formal prosecution.

We’re often jokingly asked if that means that lawyers are behaving better than they used to. It’s a question meant in jest, but it runs deep: the Administrator’s enforcement authority is being used more sparingly. Why? It can’t be that the public and the profession truly have fewer grievances about attorney conduct. From my vantage point, lawyers’ conduct is questioned and criticized now as much as it ever was.

One of my personal theories on the drop in requests for investigations is the prevalence and power of online reviews and commentary: it may be that people who may otherwise have become complainants in the disciplinary system are now making their voices heard on Yelp, Avvo, and other sites. They know that lawyers’ reputations can take a hit from hard-hitting language and one-star reviews on those sites, and the whole process is free from detailed investigation, burdens of proof, and accountability for complainants’ misstatements. (Not that disciplinary systems themselves impose consequences for those misstatements.) It seems reasonable to think that complainants seeking out those or other forums could result in a 17% reduction of the usual number of investigations.

But that reduction can’t be the sole explanation for the more precipitous drop in the number of formal complaints filed. Also, keep in mind that the number of investigations does not depend solely on the Administrator receiving requests for investigation from third parties. The Administrator has the authority to initiate investigations based on any information from any source. Self-initiated investigations would not likely make up the full difference between the previous and current norms, but if the Administrator thinks there is a regulatory priority unaddressed in an existing investigation, a new investigation can be initiated without waiting for someone to walk it in the door.

We will have to wait for the ARDC’s Annual Report (typically filed at the end of April) to know the final number of 2019 investigations. The Report will also break down the complaints filed in more detail, noting the number and frequency of different types of disciplinary charges. That will shed more light on what the Administrator has found to be worthy of the highest level of enforcement. As practitioners, what we know for now is that fewer cases than in recent years have been deemed worthy of that attention.

The Administrator has also recently been hiring new attorney staff. That may address the low number of complaints from a practical perspective: more staff lawyers can handle more matters that may have otherwise remained pending as investigations. But as that happens, we will look to see not just how many, but what kinds of cases are brought and pursued. In future posts, we’ll look at trends in the subject areas of disciplinary enforcement – including and especially the recent standby of heavily weighting formal cases toward charges of dishonesty – and what that means for Illinois lawyers looking toward the future.

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