Tawfiq is proud to be an appointed member of the Illinois State Bar Association’s (ISBA) Standing Committee on Professional Conduct. The Committee provides advisory opinions on various ethical questions to Illinois lawyers. While the opinions are not binding on courts or disciplinary authorities, they are often considered by them in assessing lawyer conduct. The summaries below are provided by Ali Law Practice LLC (not the ISBA) for educational purposes only. Review the full opinions in their entirety and consult a qualified attorney about your specific case before settling on any legal strategies or conclusions.
Summaries of January 2012 Illinois State Bar Association Ethics Opinions
ISBA Ethics Opinion 12-01: Threatening Criminal Prosecution. Citing Illinois Rule of Professional Conduct (“Rule”) 8.4(g), the opinion holds that a lawyer representing a client in a suit to recover on an NSF check may not participate in presenting or threatening criminal charges to obtain an advantage in the suit. The lawyer may advise the client that the client (on his or her own accord) may press criminal charges. But the lawyer should advise the client that threatening criminal charges to obtain payment may itself constitute a crime known as “compounding a crime” under 720 ILCS 5/32-1.
ISBA Ethics Opinion 12-02: Fees and Expenses. The opinion holds that an estate attorney’s determination of a fee based solely on the size of the estate is improper under Rule 1.5(a) (providing a non-exclusive list of factors to be considered). Among several factors, the time expended (though not necessarily the most important factor) must be considered in determining whether the fee is reasonable under the circumstances.
ISBA Ethics Opinion 12-03: Referrals; Networking; Confidentiality. The opinion deals with a lawyer’s participation in networking groups with nonlawyer professionals. Among other things, the opinion holds that under Rule 7.2, any referral arrangements with nonlawyer professionals must be nonexclusive, disclosed to the client, and not interfere with the lawyer’s professional judgment in providing the referral or other services. Further, in making a referral, the lawyer must not divulge the client’s identity (which is confidential under Rule 1.6) without the client’s consent. The opinion also provides guidance on advertising and communications with prospects.
ISBA Ethics Opinion 12-04: Solicitation. Under Rule 7.3(c), the opinion holds that, in general, direct written, recorded, or electronic solicitations to prospects known to be in need of legal services must be labeled “Advertising Material.” The label “promotional materials” (a popular alternative) is insufficient. The labeling requirement does not apply to contacts with attorneys or persons with whom the lawyer has a familial, close personal, or prior professional relationship.
ISBA Ethics Opinion 12-05: Conflict of Interest. Under Rule 1.18(c), an attorney may not represent a client with interests “materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in that matter.” What constitutes “significantly harmful” must be considered on a case-by-case basis. A lawyer may avoid disqualification by obtaining appropriate informed consent from the affected parties. Also, effective screening under Rule 1.18(d)(2) may permit a partner in the firm to accept the representation.
ISBA Ethics Opinion 12-06: Records. The opinion contains guidance on records retention under Illinois Supreme Court Rule 769 and various Rules of Professional Conduct (especially Rule 1.15). Some records should be kept indefinitely (such as “conflict cards” identifying the name and last known address of each current and former client and the status of representation). Many financial and accounting records of the lawyer’s practice must be kept for a period of at least seven years. Records concerning trust account funds and other client or third-party property held by the lawyer must be kept for at least seven years following the end of representation. The opinion notes that because the statute of repose for malpractice claims is six years, it may be advisable to keep routine case file materials for some reasonable period beyond six years (e.g. seven years) following the end of representation, even if not specifically required under any rule.
ISBA Ethics Opinion 12-07: Candor to the Tribunal. Rule 3.3 prohibits a lawyer from knowingly failing to disclose to a tribunal (1) adverse legal authority in the controlling jurisdiction or (2) offering false evidence. A lawyer, however, is not generally required to disclose “facts” contrary to the client’s position in non-ex parte proceedings. For example, a lawyer need not disclose the fact of a signed agreement that may constitute a defense for the opposing party, where the lawyer has a good faith belief that the agreement is unenforceable.