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Ethics Question Of The Week

Q. My client wishes to pursue a course of action that, although it is perfectly legal, may not be in their best interest. Do I have a duty to advise them of this?

A. Rule 2.1 states: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.  In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.” Comment 5 to that rule goes further and states: “In general, a lawyer is not expected to give advice until asked by the client.  However, when a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client, the lawyer’s duty to the client under Rule 1.4 may require that the lawyer offer advice if the client’s course of action is related to the representation. A lawyer ordinarily has no duty to initiate investigation of a client’s affairs or to give advice that the client has indicated is unwanted, but a lawyer may initiate advice to a client when doing so appears to be in the client’s interest.”

Q. Can a lawyer who is “of counsel” to a firm continue to have her name appear in the firm’s title? 

A. Illinois Rule of Professional Conduct 7.5 governs firm names and letterhead and generally provides that they cannot be false or misleading to the public. ISBA Professional Conduct Advisory Opinion 03-02 interprets RPC 7.5 as allowing the names of “of counsel” firm members to be in the firm title (but also provides that their official status must be identified on other firm communications, such as stationery, to avoid misleading the public). 

Q.  I have reason to believe that another lawyer in my firm is filing a frivolous lawsuit. Do I have an obligation to do anything?

A. Rule 5.1(a) states that “a partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rule of Professional Conduct.” It might also be important to remember the words of Abraham Lincoln when his law partner filed a plea that was not factually accurate: “Hadn’t we better withdraw that plea? You know it’s a sham, and a sham is very often but another name for a lie. Don’t let it go on record. The cursed thing may come staring us in the face long after the suit has been forgotten.”

Q. My client recently informed me that they would harm the opposing party if they had the opportunity. Do I have any duty to inform anyone of this?

Q. Can a lawyer avoid disciplinary proceedings by changing his or her registration status to inactive or retired?

A. Supreme Court Rule 756(i) provides that changing registration status will have no effect on disciplinary proceedings.  However, in some cases and with the consent of the ARDC, a lawyer facing certain disciplinary charges can seek to be placed on “permanent retired status” under Supreme Court Rule 756(a)(8) resulting in the closure of any pending disciplinary investigation or dismissal of any pending disciplinary proceeding.  

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

Q.  May I wear a shirt with my firm’s logo on it during a television appearance?

Q.  Although I’m not involved in it in any way, a local news media outlet wants to interview me on air about a very contentious case in my community. Can I?

Q. What should I do if believe my supervising attorney has given me a task that I think violates the Illinois Rules of Professional Conduct?

A. Rule 5.2(a) states that “a lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.” However, the comments to that rule provide some limited protection for a subordinate lawyer in certain circumstances such as when the subordinate attorney files a frivolous motion at the request of a supervising attorney or the “lawyer is acting in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.” For more information, see IRPC 5.2.

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 just received a settlement check in a personal injury matter. Can I go ahead and advance the client’s portion to her before the settlement check clears?

Q. My client is making unreasonable demands and I believe she cannot make rational decisions which will impact the outcome of the case. Am I allowed to withdraw from representation?

A. IRPC 1.16(b)(4) states that a lawyer may withdraw from representation if “the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.”  However, when withdrawing, a lawyer should follow 1.16(c) and (d) and must follow applicable law requiring notice to or permission of a tribunal when terminating representation and take steps to protect the client’s interests, such as allowing time to find new counsel, refunding fees, and returning files.

For more information, consult ISBA Advisory Opinion 12-10

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

[DisclaimerThese 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.]