Unfounded

vital to the protection of the profession

“Closed,” Steve Snodgrass (CC-BY-2.0)

by Jim Doppke

Sometimes when I read about ever-accelerating innovations in legal tech, I come across articles about apps and programs dating from a few years ago. Not every one of them took off, of course, or even got up and running. I recently came across an article about an app that would have connected lawyers to other lawyers. The creators said that they would determine whether the lawyers involved were “being investigated” by the ARDC. I don’t know what ultimately happened to that app, but I know one thing: it could never tell anyone if a lawyer was “being investigated” by the ARDC. That’s because Supreme Court Rule 766 prohibits the ARDC from informing anyone of the existence of investigations of any Illinois lawyers. That rule is vital to the protection of the profession. But wait: doesn’t the ARDC protect the profession (and the public) by doing its investigatory and prosecutorial work? Doesn’t “protection” mean keeping the profession safe from wrongdoers?

Yes, but there’s another side to it. Keeping investigations strictly confidential protects the profession by minimizing the risk that meritless claims about lawyers and their conduct will be made in public. It helps to prevent those claims from being reported and repeated as if they are true. That is as damaging to the profession as other lawyers breaking the rules. The profession does not need to have tall tales told about it, or to have those tales given credence.

And when people tell tall tales about individual lawyers to disciplinary authorities, the lawyers definitely do not need to labor under a cloud. The existence of the investigation should not be a stain on their record. That’s the rationale behind Rule 766: the agency charged with investigating claims about lawyers shouldn’t broadcast them, especially if they’re unsubstantiated.

What We Talk About When We Talk About Rule 766

I’ve written before about the risks created by the gaps in Rule 766’s protections. Complainants and other motivated parties should have the same confidentiality requirements as the ARDC does, and there should be a penalty for breaching that.

But lawyers should be careful, too, in thinking about and describing (where necessary) meritless claims in investigations. When the staff of the Administrator of the ARDC closes an investigation, they typically issue a letter to the lawyer that says only that the Administrator has determined to proceed no further. They send closure letters to complainants that often contain brief explanations – saying, for example, that the available evidence was insufficient to establish that the lawyer engaged in misconduct. The lawyer is usually not privy to that level of analysis.

What if a voluble complainant makes a request for investigation public? What if the lawyer must disclose its existence (e.g., on a legal malpractice insurance application)? Can the lawyer say that she was “cleared of wrongdoing”? Can she say there was an “unfounded complaint”? Or that the “allegations were found to be untrue”?

It’s best to steer clear of those words. In the first place, it wasn’t really a complaint, and there likely weren’t any allegations. I’ve been using the term “complainants” throughout this post because there’s really no other good term for that role. But the document they submit does have another title: “Request for Investigation.” The Administrator does not require matters raised in a request for investigation to be made under oath, and usually, they aren’t.

The word “complaint” is a term of art. It denotes a public complaint filed by the Administrator before the Hearing Board. I often advise lawyers to be careful not to suggest that they were the subject of one of those.

I Didn’t Do It

Also, as the Administrator’s closure letters say, the end of an investigation does not come with factual findings or a determination of innocence. The closure letters never use the word “unfounded.” The information in the investigation may well have revealed the attorney’s total innocence, but the Administrator’s staff will never tell the lawyer that they have concluded that.

So it’s better for the innocent lawyer not to suggest anything about that. The closure of the investigation is good enough. And the Administrator will expunge it three years afterwards, which is even better. Explain your innocence if you need to, but stay away from suggesting it was or is a finding of fact. Let the good result stand for what it is, and let that cloud dissipate.

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