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Ethics Question Of The Week

Q. I know I can’t take a proprietary interest in the subject matter of litigation but does that prevent me from using a lien to secure my fees?

A. IRPC 1.8(i)(1) states that a lawyer “shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may: acquire a lien authorized by law to secure the lawyer’s fee or expenses.”  Comment [16] to that rule reminds a lawyer to check which liens are authorized by law in their jurisdiction. 

ISBA members can browse past ISBA Ethics Opinions, access our Ethics Hotline, and other resources on the ISBA Ethics Page.

[Disclaimer. These questions are representative of calls received on the ISBA’s ethics hotline. The information provided below is meant as an educational tool to highlight potentially applicable Illinois RPC or other ethics resources that might help the lawyer answer the question posed. The information provided isn’t legal advice. Because every situation is different, often complex, and the law is constantly evolving, you shouldn’t rely upon this general information without conducting your own research.]

Q. As we zero in on the 800th Anniversary of Magna Carta, were there professional ethics standards for lawyers at that time?

Q.  In the past I represented a client on a number of different matters. I never sent a formal letter ending the attorney-client relationship. Am I still the client’s attorney?

Q. I currently represent the buyer of a business. Can I represent the business’s seller in a wholly unrelated matter?

Q. Do I have a duty to notify the opposing party when I receive documents that were inadvertently sent to me in discovery?

A. IRPC 4.4(b) states that a “lawyer who receives a document relating to the representation of the lawyer’s client and knows that the document was inadvertently sent shall promptly notify the sender.”  Comment [2] to that rule says any additional steps, such as returning the original document, are beyond the scope of these Rules. 

ISBA members can browse past ISBA Ethics Opinions, access our Ethics Hotline, and other resources on the ISBA Ethics Page.

[Disclaimer. These questions are representative of calls received on the ISBA’s ethics hotline. The information provided below is meant as an educational tool to highlight potentially applicable Illinois RPC or other ethics resources that might help the lawyer answer the question posed. The information provided isn’t legal advice. Because every situation is different, often complex, and the law is constantly evolving, you shouldn’t rely upon this general information without conducting your own research.]

Q. I would like to join the Board of Governors for my local Bar Association. Are there any rules I should be aware of before joining?

Q. I mentioned to a client that I was delegating a portion of her matter to a lawyer outside of my firm and she didn’t respond one way or the other. Do I need something more from her?

A. IRPC 1.2 allows delegation of client work outside of the retained lawyer’s firm with the client’s informed consent. Informed consent is defined in RPC 1.0, Comment [7] as requiring an affirmative response from the client and that a lawyer may not assume consent from a client’s silence (although the Comment also notes that client consent can be inferred from the client’s conduct).

ISBA members can browse past ISBA Ethics Opinions, access our Ethics Hotline, and other resources on the ISBA Ethics Page.

[Disclaimer. These questions are representative of calls received on the ISBA’s ethics hotline. The information provided below is meant as an educational tool to highlight potentially applicable Illinois RPC or other ethics resources that might help the lawyer answer the question posed. The information provided isn’t legal advice. Because every situation is different, often complex, and the law is constantly evolving, you shouldn’t rely upon this general information without conducting your own research.]

Q. I am not sure what is the best defense to assert while defending my client. May I file numerous defenses in the hopes that one of them will work?

A. IRPC 3.1 forbids the filling of frivolous claims. Comment [2] to Rule 3.1 states that “the filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. What is required of lawyers, however, is that they inform themselves about the facts of their clients’ cases and the applicable law and determine that they can make good-faith arguments in support of their clients’ positions. Such action is not frivolous even though the lawyer believes that the clients’ position ultimately will not prevail. The action is frivolous, however, if the lawyer is unable to either make a good-faith argument on the merits of the action taken or to support the action taken by a good-faith argument for an extension, modification or reversal of existing law.” 

ISBA members can browse past ISBA Ethics Opinions, access our Ethics Hotline, and other resources on the ISBA Ethics Page.

Q. If I’m forced to sue my client for a fee, can I disclose in pleadings or in open court the services I rendered to the client or is that breaching a confidence?

A. Rule 1.6 provides broadly that a lawyer shall not reveal “information relating to the representation of a client.”   However, subpart (b)(5) of the Rule allows a lawyer to reveal such information “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client.”  Comment [11] to the Rule notes “a lawyer entitled to a fee is permitted by (b)(5) to prove the services rendered in an action to collect it.” 

ISBA members can browse past ISBA Ethics Opinions, access our Ethics Hotline, and other resources on the ISBA Ethics Page.

Q. I’m about to participate in a trial that may receive some publicity. Do any rules govern what I can and cannot say to the press?