I’ve blogged before about the ethical implications of practicing law without having registered with the Supreme Court – and the way the ARDC deals with that situation. Today I’ll address a related question: if it happens during litigation, what happens in the case? The Illinois Supreme Court has considered the issue several times, with outcomes that may surprise you.
No Constitutional Violation
Whether lawyer non-registration affected a substantive outcome in a criminal case was raised as an issue of first impression in People v. Brigham, 151 Ill.2d 58, 175 Ill.Dec. 720, 600 N.E.2d 1178 (1992). The attorney representing the defendant had been removed from the master roll of attorneys for failure to pay the annual registration fee. In a postconviction proceeding, the defendant contended that his Sixth Amendment right to counsel had been violated due to the attorney’s lack of registration, i.e., that because the attorney was not registered, he engaged in the unauthorized practice of law, and the defendant was deprived of counsel.
The Supreme Court denied relief, concluding that the defendant was not deprived of “counsel” for Constitutional purposes. The Court noted that “there is an important distinction between (1) an unlicensed person (e.g., an imposter or a disbarred attorney), and (2) an attorney admitted to practice but under suspension for nonpayment of State bar dues.” Brigham, 151 Ill.2d at 67. It cited several cases from other jurisdictions, including the Seventh Circuit in Reese v. Peters, 926 F.2d 668 (7th Cir.1991):
Lawyers who do not pay their dues violate a legal norm, but not one established for the protection of clients; suspensions used to wring money from lawyers’ pockets do not stem from any doubt about their ability to furnish zealous and effective assistance…”
Brigham, 151 Ill.2d at 65, quoting Reese, 926 F.2d at 669-70 (emphasis added).
Well. Quite the juxtaposition there: a useful concept of “legal norms” as either protective of clients or not, paired with a deeply cynical view of attorney regulatory regimes. The Brigham court went on to cite some less tendentious out-of-state cases: Johnson v. State, 225 Kan. 458, 465, 590 P.2d 1082, 1087 (1979) (“Although the payment of the registration fee is a prerequisite to the ethical practice of law in this state, the payment itself has nothing to do with the legal ability of the attorney”); Hill v. State, 393 S.W.2d 901, 904 (Tex.Crim. App. 1965) (although a delinquent attorney is “prohibited” from practicing law, “[h]e only has to pay his dues * * * to resume his status as a `practicing lawyer,’” and he has not thereby become unlicensed.
Same in Civil?
So Brigham held that in Illinois criminal cases, an unregistered lawyer provides ineffective assistance of counsel just by virtue of being unregistered. Is the result any different in civil cases in which similar issues arise?
In a word, no. The Supreme Court has shown the same reluctance to disturb the results of civil cases based on attorneys’ individual or firm registration status as it has the results of civil cases. For example:
In Ford Motor Credit Co. v. Sperry, 214 Ill.2d at 391, 292 Ill.Dec. 893, 827 N.E.2d 422 (2005), the Court reversed a lower court opinion applying the nullity rule to void a judgment awarding attorneys’ fees. The firm had not been registered as a professional services corporation pursuant to Supreme Court Rule 721(c), and the lower court determined that as such, it was not an entity that could properly receive an award of attorney’s fees.
Rule 721 sets up a regulatory scheme that is different from that applied under Rule 756 for individual attorneys, and I’ll discuss the nuances of Rule 721 in a future post. But for the purposes of this discussion, the question raised is similar: if attorneys don’t comply with a regulatory process, should there be a change in a substantive result? Should they be considered non-lawyers, or a non-firm, for civil purposes? The Court says “no” on both counts.
In Applebaum v. Rush University Medical Center, 899 N.E.2d 262, 231 Ill.2d 429, 326 Ill.Dec. 45 (2008), the Court again declined to apply the nullity rule in a wrongful death action where the plaintiff was an attorney who was on inactive status at the time of the filing of the complaint. The plaintiff was also the special administrator, sole beneficiary, and son of the decedent. Also, prior to the hearing on the defendant’s motion to dismiss based on the plaintiff’s registration status, the plaintiff registered as active.
In reversing the lower court’s holding that the plaintiff’s complaint was a nullity, the Court again used language reminiscent of the 7th Circuit – but based its analysis on its own inherent power to regulate the practice of law in Illinois (a power the 7th Circuit does not have). It analyzed Rule 756 as simply creating an “administrative framework” for registration, and even though it provides that inactive, retired, or unregistered attorneys “‘shall no longer be eligible to practice law’ while on inactive status, it is a fundamental error to equate such a status change with stripping the attorney of his or her license to practice law.” Applebaum, 899 N.E.2d at 269. The Court even used a framing of disciplinary issues much disfavored by the Administrator of the ARDC in enforcing any rules: it characterized Rule 756 as imposing “technical requirement[s],” and failure to register as a “technical defect.” Id. at 270 (emphasis added). The Court was simply not willing to deviate from Brigham and Sperry, or otherwise to hold that an unregistered (or inactive) lawyer engaged in the unauthorized practice of law in the same way that an unlicensed person would, or to hold that there should be a severe civil consequence imposed against the lawyer.
Now what?
The Court’s approach seems at odds with the ARDC’s harsh approach to unregistered practice, which involves formal disciplinary complaints (even as it continues to file fewer and fewer of those overall) and, sometimes, charges of dishonesty even in the absence of affirmative, or any, misrepresentations. If the unregistered lawyer inflicts no civil or Constitutional harm, should there be a formal disciplinary consequence? It seems unlikely that this circle will be squared in the near future, but as the ARDC continues to evaluate its role, it can consider its approach and advocacy in light of the Court’s clearly expressed view of registration.
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