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Ethics Question Of The Week

Q. I just sold my private practice, but now a friend wants me to serve on the staff of a legal aid clinic actively representing clients in our area. Can I?

Q. Do my duties of confidentiality to former clients continue even after I leave my firm?

A. Comment 7 to IRPC 1.9 states that a lawyer changing professional association has a continuing duty to preserve confidentiality of information about a client formerly represented. However, this duty may not preclude a lawyer from using generally known information about that client. (IRPC 1.9, comment [8]). Comment [9] to the rule also allows for the provisions of 1.9 to be waived if the client gives informed consent. For a full understanding, please see IRPC 1.9.

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.

Q. Do I need to get my client’s informed consent to have another lawyer (not in my firm) attend a routine status conference because I’ve got a scheduling conflict?

A. RPC 1.2(e) provides that a lawyer can’t delegate to another lawyer not in that lawyer’s firm the responsibility for performing work for the client without the client’s informed consent. Comment [14] to that Rule clarifies that it is designed to prevent a lawyer from transferring “complete or substantial responsibility” of a matter to another lawyer.  The Comment goes on to say it is not intended to “prevent lawyers from engaging lawyers outside of their firm to stand in for discrete events in situations such as personal emergencies, illness, or schedule conflicts.” For further insight on the increasing use of “coverage attorneys” see this month’s Illinois Bar Journal.     

Q.  As a criminal defense attorney, do I have to give my client copies of the discovery?

A. Illinois Rule of Professional Conduct 1.4 imposes an ethical obligation on an attorney to maintain reasonable communication between an attorney and a client to keep the client informed and able to participate in representation. However, in People v. Davidson, 292 Ill. App. 3d 981, 686 N.E.2d 1231 (4th Dist. 1997) the Court determined that the defendant has no Constitutional right to read discovery. For further discussion, see ISBA Professional Opinion 13-10

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.

Q. I’m settling a case with plaintiff’s counsel in a matter that I know involves other potential claimants. Can I include a provision in the settlement agreement that precludes plaintiff’s counsel from soliciting, or representing, other claimants?

A. RPC 5.6(b) provides that a lawyer may not offer or make an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy. Comment [2] to that Rule clarifies that it “prohibits a lawyer from agreeing not to represent other persons in connection with settling a claim on behalf of a client.”

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. Can I charge a client for services such as making copies?

A. IRPC 1.5 addresses fees and expenses. Comment [1] states that “lawyer may seek reimbursement for the cost of services performed in-house, such as copying, or for other expenses incurred in-house, such as telephone charges, either by charging a reasonable amount to which the client has agreed in advance or by charging an amount that reasonably reflects the cost incurred by the lawyer.”  1.5(b) also notes that fees should be communicated to the client before representation. See the full text of 1.5 for further explanation.

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

Q. Can I enter into a fee agreement with a client to lobby the legislature on a proposal where my fee is contingent upon the passage of the proposal?

A. RPC 1.5(d) expressly prohibits contingent fees in only two types of cases (certain domestic relations matters and criminal cases). However, by case law and statute, charging a contingent fee in a lobbying matter is prohibited. See In re Browning 23 Ill.2d 483 (1962) and 25 ILCS 170/8.

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

Q. My client gave false information in an administrative hearing. Do I have to inform the tribunal?

A. Comment [3] to Illinois Rule of Professional Conduct 3.3 states that an advocate is responsible for pleadings and other documents prepared for litigation, but is usually not required to have personal knowledge of matters asserted therein, for litigation documents ordinarily present assertions by the client, or by someone on the client’s behalf, and not assertions by the lawyer. However, Rule 3.3(a)(3) states that a lawyer shall not knowingly “offer evidence that the lawyer knows to be false.”  If the lawyer learns the information was false, the lawyer “shall take reasonable measures, including, if necessary, disclosure to the tribunal.”   For further information see ISBA Ethics Opinion 13.05.

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

Q. I committed legal malpractice in a small dollar case. Can I settle my client’s claim against me directly with the client?

A. Comment [15] to Rule 1.8 explains that such settlement agreements are not prohibited.  However, Rule 1.8(h)(2) expressly provides that a lawyer cannot settle a malpractice claim (or potential claim) by a former or unrepresented client unless the client is advised in writing of the desirability of seeking the advice of independent legal counsel and is given a reasonable opportunity to do so.

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.]

Q. I sometimes refer clients to another law firm. Can I be compensated by that firm for the referral?

A. Rule 1.5(e) states that a division of fees between lawyers who are not in the same firm can only be made if the division of fees is in proportion to the work done by each lawyer, the client agrees in writing, and the fee is reasonable. If the primary service performed is the referral, the fee can only be divided if each lawyer assumes financial responsibility for the representation, the fee is reasonable, and the client consents in writing.  See also ISBA Professional Conduct Advisory Opinion 90-18 and Donald W. Fohrman & Assocs, Ltd. V. Marc D. Alberts, P.C.,2014 IL App(1st) 123351 (Ill. App., 2014).

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.