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Ethics Question Of The Week

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.]

Q. How much supervision must I give to our paralegals and secretaries?

A. Illinois Rule of Professional Conduct 5.3 requires a lawyer with supervisory authority to make reasonable efforts to ensure the nonlaywer’s conduct is compatible with the professional regulations of the lawyer.  A nonlawyer may include any secretary, investigator, intern, or paralegal. Comment [2] to Rule 5.3 states supervising lawyers should be responsible for the nonlawyer’s work product and maintain supervision over the legal aspects of their employment.

Q. Many years ago I represented a husband in a divorce. The ex-wife just came to me and wants me to represent her in a personal injury matter. Can I?

A. RPC 1.9 prohibits a lawyer from representing someone in a matter that is the same or substantially related to a matter in which the lawyer previously represented a client. Although there are many facets of this rule when applying it to specific situations, one of the major concerns is to protect confidential information that may have been gained in the prior representation that could be used to the detriment of the former client.

For a discussion of this point see In re Estate of Klehm, 363 Ill.App.3d 373, 299 Ill.Dec. 825 (1st Dist. 2006). View the case on Fastcase

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

Q. There is a ghost haunting my law office. What ethical implications might arise from this?

A. The presence of a ghost may cause many complications. For one, if the ghost can communicate, you need to be mindful of confidentiality issues in Rule 1.6. It might be a good idea to alert clients of your situation and to get informed consent. Also, be careful not to let the ghost regulate or interfere with your professional judgment as that may be a violation of Rule 5.4(c) which states: “A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.”

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. If I run for judicial office, as a lawyer (and not a sitting judge) do I have to comply with the Code of Judicial Conduct?

A. RPC 8.2(b) provides that a lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct. In addition, Rule 67 of the Code of Judicial Conduct makes it applicable to candidates as well as sitting judges.

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

Q.  I was appointed as the receiver of a recently deceased lawyer’s files. What are my duties?

A.  IRPC 1.3, Comment [5] suggests that lawyers prepare a plan that designates another competent lawyer to review their files in case of death or disability. If no other lawyer is appointed, Illinois Supreme Court Rule 775 allows the presiding judge in the judicial circuit to appoint a receiver. The duties of the receiver include taking custody and making an inventory of files; contacting clients; take steps to sequester funds; and take whatever action necessary to protect the interests of the attorney, his clients, and other parties.

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

Q. I serve as in-house counsel for an organization and its President wants me to represent him in a small personal matter. Can I?

Q. What ethical obligations should I be aware of if I wish to employ a nonlawyer assistant?

A.  IRPC 5.3 requires that nonlawyer assistants be adequately supervised.  It states: “With respect to a nonlawyer employed or retained by or associated with a lawyer:…a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.” 

For more information, consult ISBA Advisory Opinion 13-08.