Illinois Appellate Court Holds that Violations of the Rules of Professional Conduct are Only Enforceable in Disciplinary Proceedings
Last month, on July 7, 2021, the Illinois Appellate Court for the Second District held that the Circuit Court of DuPage County erred in ordering the disgorgement of $16,313 in attorney’s fees and the forfeiture of an additional $125,472 in outstanding fees related to a complicated divorce proceeding. The case began on November 6, 2015, when Sara C. Weber, represented by Botti Law Firm, P.C. (“Botti Law”), filed a petition for dissolution of her marriage to Karl Weber.
During the proceeding, Mr. Weber alleged that Mrs. Weber’s caregiver was exerting undue influence over his wife and misusing the parties’ marital and business assets. On June 9, 2016, Mr. Weber subpoenaed the caregiver’s bank records. In response, Botti Law appeared on behalf of the caregiver and began representing her.
On March 9, 2017, Mrs. Weber terminated Botti Law’s representation, but the firm continued to represent the caregiver. Later, Botti Law filed a petition for the setting of final fees and costs pursuant to sections 508(a) and 508(c) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/508(a). In ruling on Botti Law’s petition, the trial court reasoned that the firm “was made aware of allegations that [the caregiver] was unduly influencing Sara Weber …” and therefore should have clearly recognized there was “at least a potential of a conflict” between Mrs. Weber and her caregiver.
The trial court concluded, there was “… no doubt that there was a conflict between Sara Weber and Mary Barton …” and decided the conflict arose when Botti Law filed its appearance on behalf of the caregiver on June 12, 2016. The court asserted that this action violated the Illinois Rule of Professional Conduct 1.7. Because the firm violated Rule 1.7, Botti Law was barred from collecting any billings after June 13, 2016. The trial court added that Botti Law’s fees were not “unreasonable, unnecessary or—and/or excessive” and that the firm would be entitled to recover its fees accrued through June 12, 2016.
On appeal, the Appellate Court disagreed. The Court held that disciplinary proceedings are the only appropriate forum for enforcing the Illinois Rules of Professional Conduct. The Court reasoned that disciplinary proceedings provide attorneys with protections not available in district courts including due process protections (e.g., removal of evidentiary obstacles like the Dead-Man’s Act) and a heighten burden of proof. As the Court summarized: “Again, the focus therein is on the ARDC proving attorney misconduct, and the burden is not on the attorney to prove that he or she did not commit misconduct.” In re Est. of Weber, 2021 IL App (2d) 200354, ¶ 28. In scolding the trial court, the Appellate Court stated:
This case is precisely the type of case that subverts the purpose behind the Rules. See Ill. R. Prof’l Conduct (2010), Scope ¶ 20 (eff. Jan. 1, 2010). The trial court’s decision completely violates the supreme court’s stated philosophy behind the Rules: “The fact that a Rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule.” Id. In re Est. of Weber, 2021 IL App (2d) 200354, ¶ 24.
The Court remanded the case with directions to enter judgment in favor of Botti Law on all of its claimed fees.
(This is for informational purposes only and not legal advice.)
Illinois Law Firm Recovers No Attorney’s Fees After Trial Court Concluded The Firm Breached Its Fiduciary Duties
Scot and Patricia Vandenberg (the “Vandenbergs”) retained the McNabola Law Group, P.C. (“MLG”) to represent them in a lawsuit against RQM, LLC (“RQM”), Brunswick Corporation, and Brunswick Boat Group (together “Brunswick”). The Vandenbergs promised to pay all of MLG’s expenses, plus a contingency fee. The Vandenbergs agreed that, if they dropped MLG as counsel, they would pay MLG an hourly rate or contingency fee for services rendered up to that point, whichever was greater. Id. at ¶5. Mark McNabola (“McNabola”) of MLG represented the Vandenbergs during the trial of their case.
While the jury deliberated, Charles Patitucci (“Patitucci”), a representative for Brunswick, presented a settlement offer to McNabola. The Vandenbergs instructed him to accept that same day at 3:40 p.m. Before McNabola could reach Patitucci, the judge’s clerk called McNabola at 3:52 p.m. to tell him that the jury had sent the judge a note asking if they could find fault with RQM alone. McNabola said the answer to the jury’s question was “no,” but to “hold-off, don’t do anything yet, I’m going to try to settle this.” Id. At 4:01 p.m., he called the clerk back to say that he still could not reach Patitucci. The clerk responded that the judge wanted all parties back in court. McNabola then called Brunswick’s lead counsel, John Patton (“Patton”), to get Patitucci’s cell phone number and did not mention the note. McNabola finally reached Patitucci at 4:03 p.m. and accepted the settlement offer, still not mentioning the note. McNabola informed Patton of the settlement at 4:11 p.m. At 4:19 p.m., the clerk called Patton to say that the judge wanted the parties to come to court to discuss the note. This was the first Patton or Patitucci had heard of it. At approximately 4:40 p.m., the judge informed the parties about the note which went out “at approximately 3:50 p.m.” Id. at ¶11. All counsel present viewed it. At 4:50 p.m., the settlement was entered on the record and the case was dismissed. The jury was still allowed to deliberate and reached a verdict in Brunswick’s favor at approximately 5:00 p.m. Patton then informed the judge that the settlement had occurred without him having knowledge of the jury’s note or the clerk’s call to McNabola. Brunswick therefore moved to vacate the settlement and for judgment to be entered on the jury’s verdict instead. A new judge did so on the grounds of fraud in the inducement, unilateral and mutual mistake, absence of due process, and public policy, noting however that the Vandenbergs had “clean hands.” Id. at ¶16. Moreover, the parties did not dispute that the Vandenbergs “formed this intent [to accept Brunswick’s settlement offer] prior to the 3:50 p.m. note.” Id.
Ultimately, the Circuit Court entered judgment in favor of Brunswick and against the Vandenbergs due to alleged misconduct by McNabola. Months later, the Vandenbergs discharged MLG and with new counsel moved to vacate and enforce the original settlement. A third judge did so, finding that prior to the settlement being entered, all parties were made aware of the content of the jury’s note and the time at which it was published and had an opportunity to participate in discussion as to how to respond to it. Brunswick appealed, but was unsuccessful. The Vandenbergs then moved to adjudicate any claimed attorney’s liens MLG had for fees and expenses. They argued that McNabola engaged in misdeeds that caused their initial loss of the settlement and that “to reward him with fees out of the reinstated settlement would be wholly unfair and contrary to public policy.” Id. at ¶20. MLG responded that it was entitled to one-third of the settlement plus interest and a deferred fee, but excluding the Vandenbergs’ current attorney’s quantum meruit. Id. at ¶21. The circuit court determined that McNabola breached his fiduciary duties to the Vandenbergs by violating the professional rules of conduct in eleven specific ways. In addition, it found that he “failed to provide any evidence of the total number of hours his firm engaged in the underlying case, thus failing to properly plead and prove Quantum Meruit fees for his hourly rate.” Id. at ¶22. The circuit court denied McNabola’s petition for fees and adjudicated his lien to nothing.
On appeal, MLG argued that the only proper award was the full contingency amount given how much work it had performed prior to being discharged, less the hourly fees earned by it’s successor counsel. The Appellate Court disagreed, explaining that contingency fee arrangement requires a firm “bear the full risk of loss” and “often bear[s] little relation to the true value of the time a firm has spent on a case.” Id. at ¶36. MLG also contended that the Circuit Court erred in denying fees based on the eleven alleged breaches of the firm’s fiduciary duty to the Vandenbergs, which can be broadly categorized as “improperly charging legal fees as expenses, failing to obtain the Vandenbergs’ consent for bringing in other lawyers, putting the $25 million settlement at risk, and putting the firm’s interests ahead of the Vandenbergs in the posttrial proceedings.” Id. at ¶38. The Appellate Court disagreed here as well, explaining that these were “serious breaches that the circuit court was entitled to consider.” Id . It continued that although “adjudication of a firm’s fees to zero dollars is relatively uncommon, […] this was an unusual case” in that the firm “had repeatedly breached its duty to the Vandenbergs throughout the attorney-client relationship.” Id. at ¶40. The fact that the Vandenbergs had clear cause for terminating their representation by MLG weakened the firm’s position. Ultimately, MLG failed to make any showing of the hours it spent in connection with the Vandenberg’s claims as expressly required in the parties’ contract. The Appellate Court did rule in MLG’s favor regarding litigation expenses, explaining that “to the extent that the circuit court might have had some discretion to deny these requested payments despite the contracts, the court provided no explanation for its actions,” which seemed “to be an abuse of any discretion the court might have had.” Id. at ¶55.
Scott Vandenberg and Patricia Vandenberg v. RQM, LLC, Brunswick Corporation and Brunswick Boat Group, 2020 IL App (1st) 190544, June 26, 2020
(This is for informational purposes only and not legal advice.)
A great article that provides an update on a lawyer’s ethical obligations when a client asks for his or her file relating to the lawyer’s representation of the client appears in a recent issue of the CBA Journal. Link. Entitled “Extent of Client Access to Lawyer’s File,” the article was written by Novack and Macey attorney Shelby L. Drury. We thought it might be of interest.
The article discusses the American Bar Association’s Committee on Ethics and Professional Responsibility’s Formal Opinion 471 issued on July 1, 2015 “in which it concluded that the ‘end product’ approach is consistent with the ethical requirements of the ABA Model Rules of Professional Conduct. The pertinent Illinois and ABA ethics rules are the same (Illinois and ABA Rules of Professional Conduct 1.4(a), 1.15(d), 1.16(d)). The ABA Opinion cited the ISBA Opinion, among other authorities.”
(This is for informational purposes and is not legal advice.)
By Timothy J. Miller and Matthew J. Singer
Reprinted with permission of the Chicago Bar Association’s CBA Record, September 2015. Link
For American litigators, witness preparation is an important part of the job. Before deposition, trial, or hearing, lawyers typically meet with witnesses to discuss their recollections, go over key documents, rehearse testimony, and explain appropriate attire, demeanor and potential pitfalls. See generally John S. Applegate, Witness Preparation, 68 Tex. L. Rev. 277, 298-324 (1989). Although these are everyday activities for litigators, there are surprisingly few authorities in Illinois and nationwide addressing the ethical boundaries governing such activity. Which tactics cross the line from acceptable witness preparation to unacceptable witness coaching? Is it permissible for lawyers to suggest that witnesses use certain words, instead of others, to describe their recollections? To recommend that witnesses adopt a confident demeanor in the courtroom? To aggressively challenge a witness’s initial recollection of certain facts, in hopes of securing more favorable testimony?
DRAWING THE LINE BETWEEN ETHICAL AND unethical witness preparation is more than just an interesting theoretical question; a lawyer who errs in placing the line may face real-world consequences that include sanctions, bar discipline, disqualification, or even prison. See, e.g., Knox v Hayes, 933 F. Supp. 1573, 1575 (S.D. Ga. 1995) (sanctions); In re Foley, 439 Mass. 324, 339 (2003) (bar discipline); Ibarra v. Baker, 338 F. App’x 457, 460 (5th Cir. 2009) (unpublished) (disqualification); Sheriff, Clark County v. Hecht, 710 P.2d 728 (Nev. 1985) (criminal prosecution). Indeed, an Illinois criminal defense attorney recently was indicted by a federal grand jury based on allegations that he coached a witness to lie in a drug prosecution. See Indictment, United States v. Brindley, (No. 14CR 468) (filed August 2 1, 2014); Jason Meisner, Defense Attorney Indicted on Perjury, Obstruction Charges, Chicago Tribune, Aug. 21, 2014, available at http://www. chicagotribune.com/news/local/breaking/ chi-defense-attorney indicted-on-perjury-obstruction-charges-20140821-story.html.
This article will examine existing authorities and attempt to distill some of the key takeaways for litigators seeking to effectively represent their clients without running afoul of ethical and legal prohibitions.
Illinois Rules of Professional Conduct
The Illinois Rules of Professional Conduct provide only slight guidance to Illinois attorneys about the ethics of witness prepara tion. Rule 3.4(b) states what should be obvious: lawyers may not “counsel or assist a witness to testify falsely.” Ill . R. Prof. C. 3.4(b). Illinois lawyers also are barred from offering “evidence that the lawyer knows to be false.” Ill. R. Prof. C. 3.3(a)(3) . When the lawyer “reasonably believes” that a witness’s planned testimony is false, however, the lawyer has the option to refuse to offer the testimony (unless the testimony is of a criminal defendant). Ill. R. Prof. C. 3.3(a)(3) . Because this rule gives an attorney the choice to refuse to offer the testimony, it suggests by implication that a lawyer is ethically permitted to offer testimony that he reasonably believes (but does not know) is false; indeed, in the case of a criminal defendant’s testimony, the lawyer may be obligated to offer such testimony. See People v. Calhoun, 351 Ill.App. 3d 1072, 1081-82 (4th Dist. 2004) (criminal defense attorney who refused to present his client’s testimony provided ineffective assistance of counsel where he did not have good-faith basis for believing client would commit perjury); Gerald L. Shargel, Federal Evidence Rule 608(b): Gateway to the Minefield of Witness Preparation, 76 Fordham L. Rev. 1263, 1285-88 (2007). In addition, Rule 8.4(c) establishes that it is professional misconduct to “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Ill. R. Prof. C. 8.4(c). Yet, apart from directly encouraging a witness to lie, it is not readily apparent which witness preparation tactics could be deemed to involve “dishonesty, fraud, deceit, or misrepresentation.”
Significantly, the Rules of Professional Conduct also establish that a lawyer has a duty of competence. Ill. R. Prof C. 1.1. This duty certainly includes a responsibility to adequately prepare witnesses. See, e.g., United States v. Rhynes, 218 F.3d 310, 319 (4th Cir. 2000). Thus, a lawyer cannot avoid the ambiguities involved in witness preparation by refusing to prepare witnesses.
Illinois’ lack of ethical guidance on witness preparation is typical of jurisdictions across the nation. Given the dearth of author ity, scholars and practitioners have weighed in and attempted to provide guidelines for proper witness preparation. These sources reflect a fundamental tension between a lawyer’s responsibility to provide the best possible representation and the justice system’s truth-seeking function. Indeed, the very tactics identified by some as best practices for effective witness preparation are criticized by others as potentially unethical. Illustrative examples include:
Appearance and Demeanor. Lawyers preparing witnesses typically instruct witnesses about appropriate courtroom attire and behavior and encourage witnesses to adopt a calm, confident demeanor. See Restatement (Third) of Law Governing Lawyers § 116, cmt. n.b ; Applegate, supra, at 298-300; Brian Haynes, Preparing Your Witness for Deposition, 28 The Advoc. (Texas) 6, 10 (2004). Yet, some criticize these practices because they may mislead the fact-finder by inac curately portraying the witness and exag gerating the witness’s level of confidence in the testimony. See Robena K. Flowers, Witness Preparation: Regulating the Profes sion’s “Dirty Little Secret’: 38 Hastings Const. L. Q. 1007, 1020-21 (2011); Liisa Renee Salmi, Don’t Walk The Line: Ethical Considerations in Preparing Witnesses for Deposition and Trial, 18 Rev. Litig. 135, 163-65 (1999); Joseph D. Piorkowski, Jr., Professional Conduct and the Preparation of Witnesses for Trial: Defining the Acceptable Limitations of “Coaching,” 1 Geo. J. Legal Ethics 389, 404-09 (1987).
Suggesting Word Choice. Witnesses can be sloppy with their word choice or imprecise in their recounting of events. So, according to the Restatement of the Law Governing Lawyers, a “lawyer may suggest choice of words that might be employed to make the witness’s meaning clear.” Restatement (Third) of Law Governing Lawyers § 116, cmt. n.b. But, some believe that this tactic can amount to encouraging false testimony because the witness is using the lawyer’s words rather than the witness’s own. See Salmi, supra,v at 160-63; Piorkowski, supra, at 402.
Reviewing Relevant Documents. In a witness preparation session, a witness often will review relevant documents. This exercise both refreshes a witness’s recollection of events and ensures that a witness is not blindsided by an unexpected document during cross-examination. See Restatement (Third) of Law Governing Lawyers § 116, cm t. n.b; Applegate, supra, at 304-07; Haynes, supra, at 8; John M . Maciejczyk, Effective Deposition Witness Preparation, 39-Mar Res Gestae 28, 30-31 (1996). Critics note that this approach risks that a witness will testify based on the documents and not an independent recollection of the events at issue. See Salmi, supra,v at 144-45.
The bottom line is that virtually all witness preparation tactics-even those routinely utilized by lawyers-can raise ethical questions. But, as discussed above, simply punting the issue by refusing co engage in serious witness preparation is not an option either; such behavior would violate an attorney’s duty to provide competent representation.
Key Case Law
Despite the concerns raised in the scholarly literature, the few cases to directly address the issue of witness preparation generally set a high bar for what constitutes improper witness coaching. Because there are no Illinois authorities directly on point, this article will examine relevant cases from other jurisdictions .
The prototypical example of improper witness preparation is directly encouraging or enabling the witness to offer false testi- mony. Knox v. Hayes, 933 F. Supp. 1573 (S.D. Ga. 1995), illustrates this kind of misconduct. In Knox, the estate of a bicyclist killed in a collision with a truck filed a civil suit against the truck driver. Knox, 933 F. Supp. at 1575. The truck driver’s attorney prepared an affidavit for a witness to the accident that included a statement averring that the bicycle had attempted to pass the truck. When the witness reviewed the affidavit, he told the attorney that he had never seen the bicycle. In response, the attorney told the witness that “we can change [the statement] now, or we can just leave [it] like that.” The witness did not object to leaving the statement as it was, but told the attorney chat if he was later asked about whether he saw the bicycle attempting to pass the truck, he would deny that he saw the bicycle. Nonetheless, the attorney said it was appropriate to leave the statement in the affidavit, the witness signed it, and it was notarized.
The court sanctioned the attorney, ordered him to pay plaintiff’s fees and costs spent litigating the false affidavit issue, and disqualified the attorney and his law firm from further representing defendants in the case. Although the attorney argued that the affidavit relied on the witness’s “impressions” of the scene of the accident, and therefore was not false, the court determined that the affidavit was worded as “the testimony of a person who witnessed an event” and concluded that the attorney “knew that [the witness] witnessed no such thing, but drafted [the affidavit] as if he had.” The court concluded that the affidavit contained “a blatant falsehood of which” the attorney was aware. The court emphasized that the lawyer’s interaction with the witness after the witness disputed the statement in the affidavit was especially inappropriate. Once the witness pointed out that the statement was false, the attorney “had a professional obligation to prevent [the witness] from signing the affidavit” that included the false statement. Instead, the lawyer inappropriately “helped the process along” by giving the witness a choice between changing the affidavit or leaving it as is.
Two Fifth Circuit cases emphasize the ambiguous line between proper and improper witness preparation. In Ibarra v. Baker, 338 F. App’x 457 (5th Cir. 2009) (unpublished), an attorney was sanctioned for improperly coaching a witness even though the attorney never directly met with the witness. The plaintiffs in Ibarra were arrested after recording and photo graphing the execution of a search warrant at a neighboring home. After they were acquitted of resisting arrest they brought a false arrest suit against the arresting officers. Ibarra, 338 F. App’x at 461. The attorneys for the officers hired an expert witness who prepared a preliminary report opining, among other theories, that the officers had reasonable suspicion because the arrests occurred in a “high-crime area.” Significantly, this theory was unsupported by any prior testimony in the suit or the criminal case against plaintiffs.
The expert met one-on-one with a defendant officer the day before the officer’s deposition. The officer then showed up at his deposition with a set of notes prepared during his meeting with the expert that tracked the expert’s preliminary report, point-by-point, including the “high crime area” theory. The officer’s deposition testimony about his meeting with the expert was evasive, and he claimed not to remember details of the meeting that occurred just one day prior. Moreover, although the offi cer testified that he had been briefed before the arrest that the relevant neighborhood was a “high crime area,” he “was unable to provide even a single detail” about that briefing.
After the deposition, the plaintiffs moved for sanctions, and they later discovered billing records indicating that defendants’ attorneys had met with the expert the day before he met with the officer. After holding two hearings, the district court concluded that the purpose of the meeting between the expert and the officer was to “coach” the officer to testify consistently with the expert’s report. Based on the attorneys’ meeting with the expert the previous day, the court also concluded that the attorneys were involved in the witness-coaching scheme, sanctioned them $10,000, and disqualified them.
The Fifth Circuit affirmed the district court’s decision to sanction the attorneys for improper witness coaching. The court emphasized that there was no factual support for the “high crime area” theory prior to the officer’s deposition testimony; that theory first appeared in the expert’s report, and then the officer-with the aid of the notes from his meeting with the expert mentioned it for the first time in his deposition. The court held that the sudden appearance of this theory in the officer’s deposition testimony, based on a purported briefing of which the officer could not recall “a single detail,” supported the district court’s conclusion that the expert had improperly coached the officer to falsely testify consistently with his expert report. The court acknowledged that the evidence of the attorneys’ involvement was a “bit scant,” but emphasized that the attorneys met with the expert the day before his meeting with the officer. Applying a deferential standard of review, the court refused to overturn the district court’s ruling that the attorneys, “acting through [the expert], improperly” coached the officer to testify consistently with the expert’s report.
In contrast, another Fifth Circuit case, Resolution Trust Corp. v. Bright, 6 F.3d 336 (5th Cir. 1993), determined that attorneys had not crossed the line into improper witness coaching. Plaintiff ‘s attorneys conducted a series of interviews with a witness, and after the last interview, they prepared an affidavit for the witness to sign. The attorneys specifically told the witness that the affidavit contained a few assertions that the witness had not previously made, but that the attorneys believed to be true; they also instructed the witness to “very carefully” review the affidavit. The witness made several changes to the draft affidavit, and deleted certain facts of which she believed she did not have personal knowledge. The attorneys aggressively attempted to persuade her co include the facts in her affidavit by describing their understanding of the course of events and showing the witness independent evidence supporting their theories. After the witness refused to alter her revisions to the affidavit, the attorneys prepared a final affidavit incorporating the witness’s changes. When defense counsel became aware of the situation, they moved for sanctions. The district court granted the motion based on its conclusion that plain tiff’s attorneys had improperly attempted to tamper with or manufacture evidence against defendants.
The Fifth Circuit reversed, concluding that plaintiff’s attorneys did not engage in sanctionable misconduct. The court emphasized that plaintiff’s attorneys did not ask the witness to make statements that they knew were false; instead, they attempted to convince her to adopt statements that they believed were true. Given the attorneys’ good faith basis for believing in the truth of the statements, the court determined that the attorneys’ conduct could not accurately be described as manufacturing evidence or encouraging false testimony. Moreover, although the attorneys were “persistent and aggressive in presenting their theory of the case to [the witness],” they “nevertheless made sure that [the witness] signed the affidavit only if she agreed with its contents.” In fact, the court emphasized, the attorneys specifically brought to the witness’s attention that their draft affidavit contained some new state ments, and instructed her to read them carefully. Ultimately, the court concluded that the attorney’s actions were permissible advocacy and it reversed the district court’s sanctions order. •
Although the above authorities hardly provide comprehensive guidance for attorneys who are preparing witnesses, there are some key lessons to be gleaned.
• An attorney should never encourage a witness to provide testimony that the witness says, or the attorney knows, is false. This is the golden rule of witness preparation and one that even the vague ethical rules make clear.
• An attorney should emphasize repeatedly that the witness must tell the truth .Attorneys who are interviewing and preparing witnesses should emphasize explicitly and repeatedly that the witness should tell the truth and then act in accordance with that instruction. By doing so, the risk that ordinary witness preparation techniques could lead to false testimony can be minimized. See Haynes, supra, at 8; Maciejczyk, supra, at 33. And this is a key distinction between Knox and Resolution Trust. In Knox, after the witness identified an untrue statement in the draft affidavit, the attorney gave the witness the option of signing the affidavit containing the untrue statement or changing it. Meanwhile, in Resolution Trust, the lawyers repeatedly emphasized that the witness must tell the truth, even while aggressively challenging the witness’s perception of events and asking her to change the substance of her affidavit. The lawyers’ emphasis on candor-even as they attempted to persuade the witness to make changes to her affidavit-was a key consideration in the court’s decision to overturn sanctions against the lawyers.
• An attorney should work to ensure that witnesses are well prepared to testify. An attorney must not encourage a witness to lie, but an attorney generally “enjoys extensive leeway in preparing a witness to testify truthfully:” Ibarra, 338 F. App’x at 465. Thus, for example, an attorney can, and should, critically examine a witness’s testimony, discuss with the witness other relevant evidence, work to refresh the witness’s recollection, and prepare the witness for questioning on direct and cross-examination. Moreover, it is appropriate to prepare a witness to testify by emphasizing appropriate demeanor and behavior in the courthouse, working with the witness to choose words that accurately reflect the witness’s intended meaning, and reviewing key documents so the witness can give thoughtful and informed testimony. The ethical concerns that some scholars have raised about these tactics-or the possibility for abuse in the hands of an unscrupulous lawyer-can be reduced by emphasizing to the witness the need to testify truthfully. Moreover, these concerns should not prevent an attorney from doing what is necessary to effectively prepare a witness. Indeed, a lawyer would not be providing competent representation if the lawyer did not fully prepare witnesses to testify.
Timothy J. Miller, General Counsel at Novack and Macey, is experienced in matters concerning attorneys’ and other professionals’ liability. Matthew J. Singer is an Associate at Novack and Macey, concentrating in commercial litigation.
Legalized Medical Marijuana Leads to Proposed Change To Illinois Rules of Professional Conduct — Public Hearing On Change Set For July 22
In response to the passage of the Illinois Compassionate Use of Medical Cannabis Pilot Program Act (the “Marijuana Act”) effective January 1, 2014, legalizing the use of marijuana in certain circumstances, the Illinois Supreme Court Committee on Professional Responsibility (the “Committee”) has proposed an amendment to the Illinois Rules of Professional Conduct. The proposed amendment is intended to address the conflict between Illinois and federal law with respect to the use of marijuana. In particular, the proposed amendment would provide an express exception to Illinois Rule of Professional Conduct 1.2’s prohibition on a lawyer counseling or assisting a client to engage in criminal conduct and clarify any uncertainty with respect to whether an Illinois lawyer may provide legal advice on the matters covered by the Marijuana Act.
The proposed amendment is consistent with the Illinois State Bar Association’s Advisory Opinion No. 14-07, issued in October 2014 (the “ISBE Opinion”) on the issue. In fact the ISBE Opinion concluded that “the provision of legal advice to clients involved in the medical marijuana trade falls squarely within” the exception already provided in Rule 1.2(d), which allows a lawyer to “discuss the legal consequences of any proposed course of conduct with a client” and “to counsel or assist a client to make a good-faith effort to determine the validity, scope, meaning or application of the law.” ISBE noted that to reduce any uncertainty, “contemporaneously with the publication of [the ISBE Opinion], it is recommending to the Illnois Supreme Court Rules Committee” that it amend Rule 1.2(d) along the lines of a similar amendment to the Connecticut Rules of Professional Conduct. The Committee’s proposed amendment is similar to the Connecticut amendment.
The Committee’s proposed changes to Rule 1.2(d) are below (changes are noted by striking through deletions and underlining additions):
“Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may
- discuss the legal consequences of any proposed course of conduct with a client,
- and may counsel or assist a client to make a good-faith effort to determine the validity, scope, meaning or application of the law, and
- counsel or assist a client in conduct expressly permitted by Illinois law that may violate or conflict with federal or other law, as long as the lawyer advises the client about that federal or other law and its potential consequences.
See www.illinoiscourts.gov/SupremeCourt/Public_Hearings/Rules/. In addition, the Committee has proposed 2 additional, but alternative comments to Rule 1.2 which are also found at the link provided above:
“ Paragraph (d)(3) was adopted to address the dilemma facing a lawyer in Illinois after the passage of the Illinois Compassionate Use of Medical Cannabis Pilot Program Act effective January 1, 2014. The Act expressly permits the cultivation, distribution, and use of marijuana for medical purposes under the conditions stated in the Act. Conduct permitted by the Act may be prohibited by the federal Controlled Substances Act, 21 U.S.C. §§801-904 and other law. The conflict between state and federal law makes it particularly important to allow a lawyer to provide legal advice and assistance to a client seeking to engage in conduct permitted by Illinois law. In providing such advice and assistance, a lawyer shall also advise the client about related federal law and policy. Paragraph (d)(3) is not restricted in its application to the marijuana law conflict. A lawyer should be especially careful about counseling or assisting a client in other contexts in conduct that may violate or conflict with federal, state, or local law.”
“Alternative–Comment Only–Limited to Marijuana Law Conflict
 A lawyer does not violate Rule 1.2(d) by counseling a client regarding the validity, scope, and meaning of the Illinois Compassionate Use of Medical Cannabis Pilot Program Act effective January 1, 2014, or by assisting a client in conduct that is permitted by the Act. The lawyer shall also advise the client regarding related federal law and policy.”
A public hearing on the foregoing proposed changes as well as other changes to the Illinois Rules of Professional Conduct and Illinois Supreme Court rules is set to take place on July 22, 2015 at 10 a.m. in room C-500 of the Michael A. Bilandic Building, 160 N. LaSalle Street, Chicago.
The “Notice of Public Hearing” issued by the Committee states that it “invites public comments on the proposals. Written comments should be submitted Wednesday, July 8, 2015, to firstname.lastname@example.org or mail to: Committee Secretary, Supreme Court Rules Committee, 222 N. LaSalle Street, 13th Floor, Chicago, Illinois 60601. To be scheduled to testify at the public hearing, please send an e-mail or written request to the Rules Committee Secretary, as noted above, by no later than Wednesday, July 15, 2015.”
Visit this blog after the hearing for an update.
(This is for informational purposes and is not legal advice.)
Illinois Attorneys Cannot Threaten To Report Opposing Counsel, But Researching The Issue Teaches Important Lessons
By Tim Miller, General Counsel, Novack and Macey LLP
Recently, a client asked, “can I tell opposing counsel that I will report counsel’s misdeeds to the ARDC if the case does not settle on favorable terms?” I responded, “probably not, but let me do some quick research to make sure.” The subsequent research confirmed that, in Illinois, it is unethical to threaten to report counsel to the ARDC to gain an advantage in a civil matter, but I (re)learned valuable lessons along the way.
My initial answer to the client was based on my recollection of an explicit ethical rule that forbids threatening criminal prosecution in order to gain advantage, but I could not recall which rule I was thinking of. So, as I frequently do, I started my research by going to my copy of the ABA’s Annotated Model Rules of Professional Conduct. The index to the Model Rules contains an entry for “threat of disciplinary action.” The reference in the index is to an annotation to ABA Model Rule 4.4, “Threatening to Prosecute or Report.” The annotation reports that the old Model Code expressly barred a lawyer from threatening to present criminal charges, but that this requirement was removed from the Model Rules. As a result, ABA Formal Ethics opinion 94-363 (1994) concludes that, under current Rule 4.4, while many threats may violate one or more other provisions of the Rules, some threats of criminal prosecution may be proper. The Model Rule annotation also references a 1988 Illinois State Bar Association Ethics Opinion (87-7). According to the annotation, the ISBA Opinion concludes that threatening to report somebody to the ARDC violates the Model Code.
I then looked at Illinois Rule 4.4 and noted that it has no prohibition against threats. Nor did the index to the Rules have a relevant entry.
In light of the age of the ISBA Opinion referenced in the ABA annotation, I decided that I would see if it had been cited in any Illinois cases. I did a Westlaw search for “Illinois State Bar Association Opinion 87-7.” While I did not see any cases citing the ISBA Opinion, that search told me that there was another more recent ISBA Opinion whose topic is “Participation in Presentment of Criminal Charges to Obtain Advantage in Civil Matter.” (No. 93-05.) In turn, that opinion notes that Illinois Rule 1.2 (e) provides that “A lawyer shall not present, participate in presenting, or threaten to present criminal charges or professional disciplinary actions to obtain an advantage in a civil matter.” In short, I learned that Illinois carried the old Model Code prohibition against threats into the Model Rules and made it expressly applicable to ARDC complaints.
I next reviewed Illinois Rule 1.2 and saw that, as of January 1, 2010, there is no section (e) in the Rule. Further, on Westlaw, the notes of decisions for Illinois Rule 1.2 have an entry for “threatening act.” That entry refers to one case, Skolnick v Altheimer & Gray, 191 Ill. 2d 214, 234, 730 N.E.2d 4, 17 (2000). When I reviewed Skolnick, I saw that it contains the following statement: “The Skolnicks correctly observe that an attempt by a lawyer to blackmail an opponent through the threatened use of ARDC proceedings violates the Rules of Professional Conduct. 134 Ill.2d R. 1.2(e).” Id. According to Westlaw, however, there are no later cases that cite Skolnick for this proposition.
I had not reviewed the older ISBA Opinion referenced in the ABA Annotation because it was issued when Illinois followed its version of the Model Code. Nonetheless, at this point, I decided to review the ISBA Opinion itself. Significantly, the second paragraph of the Opinion contains the statement that “This opinion was AFFIRMED by the Board of Governors in July 2010.” The next sentence of the ISBA Opinion states “Please see the 2010 Illinois Rule of Professional Conduct 8.4(g).
So, I went to Illinois Rule 8.4(g). Sure enough, Illinois Rule 8.4(g) states that it is professional misconduct to “present, participate in presenting, or threaten to present criminal or professional disciplinary charges to obtain an advantage in a civil matter.” In other words, the prohibition at issue had moved from the Model Code to Illinois Rule 1.2(e) and from Rule 1.2(e) to Illinois Rule 8.4(g) in 2010.
After all of this, it was clear that my initial advice to my client was correct and that threats to report counsel to the ARDC are improper. I called my client and told him so.
So, what lessons did I (re)learn? First, I was reminded that legal ethics research is not always straightforward in Illinois, and that it is especially prudent to pay particular attention to the differences between Illinois’ Rules of Professional Conduct and the ABA’s Model Rules. Illinois has adopted almost all, but not the entirety, of the Model Rules and it also has adopted provisions that vary from the Model Rules. Moreover, neither Illinois Rule 1.2 — where the prohibition at issue used to reside — nor Illinois Rule 4.4 — where the ABA discussed the prohibition — reference Rule 8.4(g). Thus, it required careful research to locate Illinois Rule 8.4. Second, I was reminded that it is dangerous to promise “quick” research or assume that a research question is easy.
(This is for informational purposes and is not legal advice.)