“Tea Leaves,” Manu Sankerms (CC-BY-SA 2.0)
The ARDC recently released its 2019 Annual Report. The tale it tells is a familiar one – declines in investigations and prosecutions, the latter down to 44. (For some reason, my search of the ARDC’s website only brings up 42.) The Illinois Supreme Court entered 96 sanctions limiting or removing Illinois lawyers’ right to practice. That number is higher than the complaints filed partly because the cases ARDC files can be litigated for a year or more before reaching the Court, and partly because some matters are filed directly with the Court rather than via a complaint before the Hearing Board.
Like the Report itself – which shunts all the charts and stats off to an appendix – I want to focus on the story I think the numbers tell, and what might come next (my personal opinions only, no one else’s).
A New Role
With this Annual Report, the ARDC is readjusting its role in the life of the Illinois legal profession. It’s a registration system and educator first. Discipline is at most coequal with the educational function. Its role as educator is described before its role as disciplinary agency in both the Annual Report and the shorter Highlights.
According to the Report, the ARDC’s reduced litigation attorney staff (which, after much recent turnover, now numbers only 15 statewide, down from 24 in 2008) is meant to focus on “serious cases.” That will include those rare cases seeking immediate interim suspensions of the lawyer prior to a formal hearing. Such cases typically involve lawyers who have been convicted of, or at least charged with, extremely serious crimes involving “moral turpitude”.
So ARDC will produce seminars and educational materials, and it will still provide information via Ethics Inquiry calls. But ARDC staff attorneys still can’t give legal advice or advisory opinions during those calls. That’s because the ARDC is an agency of the Supreme Court, which can’t and won’t do those things either.
That’s true of the seminars and other materials, too. They’re not legal advice. ARDC presenters can discuss and analyze legal ethics issues. They illuminate national trends. They tell stories from their and other agencies’ caseloads that may suggest what not to do. But they can’t advise you what to do (or not do) in your particular situation.
Expectations
I don’t expect the statistical trends to change. The ARDC will likely investigate just under 5,000 of Illinois’ nearly 100,000 lawyers this year, and it is on the exact same pace of filing formal disciplinary complaints this year as it was in 2019. The Court may enter a similar number of disciplinary orders this year, or perhaps fewer, due to the COVID-19 crisis. The ARDC only recently green-lighted remotely-conducted contested hearings, so fewer cases may make it to the Court during 2020.
Despite the declining numbers, Illinois lawyers will always face a risk of disciplinary investigation or formal action. Even more importantly, lawyers will always face ethical dilemmas and questions, even if they don’t cause or involve an interaction with the disciplinary system.
And if that interaction does happen, it may be more protracted than before. The outcome may be less certain, too. Whether ARDC becomes involved or not, lawyers should continue to think carefully about their ethical obligations — and to seek assistance of counsel to bolster them as they do. A well-timed and thoroughly researched opinion letter or consultation could make the difference between an encounter with the ARDC, or none at all. Now more than ever, you are your own ethical center, and we are here to support you. Don’t hesitate to contact us.
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