by Jim Doppke
As Rhys Saunders recently posted, the ARDC released its 2018 Annual Report a couple of weeks ago. I’m still digesting some of the information in it, but there are some observations about the Illinois disciplinary system that can be gleaned from the basic data.
Number of Investigations Continues to Decline
This year, the Administrator of the ARDC docketed 5,029 investigations. Last year, there were 5,199. The year before that: 5,401. The Report itself notes a downward trend dating back to 2014, when there were 5,835. But despite that downward trend, the number of investigations can fluctuate; as recently as 2011, there were 6,155 investigations docketed, a substantial increase from 2010’s 5,617.
Is the decline in investigations important? If so, what causes it? The Annual Report does not analyze causation; some other states report similar declines, with the Louisiana Attorney Discipline Board attributing it to a “proactive approach to education by many of the stakeholders in the legal profession.”
Our ARDC has initiated a great deal of outreach and education in recent years (including 315 speeches and presentations by ARDC lawyers to various groups in 2018 alone). If lawyers are armed with better education and making fewer missteps, the theory goes, it is possible that there is less misconduct to charge or report.
I have still not found empirical corroboration for a pet theory of mine: might publishing negative online reviews take the place of filing bar grievances for some complainants? It seems intuitive: the complainant can vent, simply and quickly, perhaps without concrete consequences but also without further correspondence or fuss. Yet many complainants I have encountered have wanted, very much, to see a concrete consequence imposed, so why give up on the possibility? The search for a unified field theory on declining investigative and hearing caseloads continues.
Public Disciplinary Complaints: Dishonesty Allegations Still Reign
Of the 59 formal disciplinary complaints filed in 2018, 45 alleged “deceptive or fraudulent activity.” That makes it the most frequently charged kind of misconduct, continuing a years-long trend. But once again, that kind of conduct is not the most often reported to ARDC in initial grievances; at 616 reports, it trails both failure to communicate (642) and, by a large margin, neglect (the leading reported misconduct at 1,917). The Report thus reveals that complainants accuse lawyers of dishonest conduct in 12% of investigations, but the Administrator charges that conduct in 76% of disciplinary prosecutions. That, too, is in keeping with recent trends.
Illinois practitioners should take note of those ratios, as they indicate the risks we face as we navigate often hotly contested matters. An accusation of untimely action or neglect is the kind of accusation most likely to result in a disciplinary investigation, and that investigation will likely be one that can be handled and concluded by the ARDC’s Intake Department. An accusation of dishonest conduct is likely to be scrutinized, often by the ARDC’s Litigation Department, with a view to whether formal discipline is warranted. The latter process takes longer, requires more cooperation by the respondent-attorney, and can give rise to temporal, financial, and emotional costs. Lawyers cannot always know what accusations a disgruntled client, or motivated opponent, may level against them.
Also, a reality not described in the Annual Report is that the Administrator’s staff may decide to pursue a dishonesty charge even when neither the complainant nor any witness has raised or considered the possibility that the attorney acted dishonestly. The dishonesty charge can grow out of the Administrator’s theory of the case, without having been complained of in the initial report. That may, in part, account for the prevalence of dishonesty as charged misconduct despite its lack of prominence in the investigative caseload.
As lawyers observe disciplinary accusations beginning or proceeding to take shape, it is useful to keep in mind how the Administrator handles different kinds of accusations, and to begin to prepare for handling them.
Overdraft Notifications: Declining as Basis for Formal Charges
Banks are required to report overdrafts in IOLTA accounts to the Administrator, resulting in investigations being opened and information being gathered relating to the overdraft.
Chart 14 of the Annual Report describes how those investigations have been handled:
The 2018 totals are notable for being equal: 321 investigations opened, 321 investigations closed. (That does not mean, though, that they were the same 321 investigations.)
But that is in keeping with the broader trend: the Administrator often closes more overdraft notification investigations than are opened. Also, the number of formal complaints filed based on overdraft notifications has steadily declined, from 12 in 2014 to 3 in 2018.
That does not mean that overdraft notification investigations are not important, or that lawyers face little risk in responding to them. It does indicate, though, that lawyers must take the opportunity to respond to the Administrator’s concerns in those investigations by explaining the circumstances of the overdraft clearly and fully. They can demonstrate that the overdraft was not a result of misconduct, or that no client funds were involved. They can also show that they have made, or are making, improvements in their accounting procedures that will help avoid any future issues. Either kind of response, done correctly, can substantially increase the lawyer’s chances of avoiding formal charges.
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