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Ethics Question of the Week

  • June 26, 2014 | Practice News
    Ethics Question of the Week: Is client consent required when outside lawyer fills in at status conference?

    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.     

  • June 18, 2014 | Practice News
    Ethics Question of the Week: Are criminal defense attorneys required to give clients copies of discovery?

    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.

    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.

  • June 11, 2014 | Practice News
    Ethics Question of the Week: Can I block opposing counsel from representing other claimants?

    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.]

  • June 5, 2014 | Practice News
    Ethics Question of the Week: Can I charge a client for making copies?

    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.

    2 comments (Most recent June 5, 2014)
  • May 28, 2014 | Practice News
    Ethics Question of the Week: Can I charge a contingent fee to lobby for a client?

    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.

  • May 22, 2014 | Practice News
    Ethics Question of the Week: Do I have to inform tribunal if client gives false information?

    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.

  • May 15, 2014 | Practice News
    Ethics Question of the Week: Can I settle a malpractice claim directly with client?

    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.

    [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.]

    1 comment (Most recent May 15, 2014)
  • May 7, 2014 | Practice News
    Ethics Question of the Week: Can I earn a fee for referring a client to another lawyer?

    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.

    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.

  • April 30, 2014 | Practice News
    Ethics Question of the Week: Can I take a security interest in a client's property to guarantee a fee?

    Q. Can I take a security interest in property my client owns (but not involved in the representation) to guarantee my fee?

    A. IRPC 1.8(i) provides that a lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation a lawyer is conducting for his client. See Supreme Court Rule 1.8.  Comment [16] to that Rule provides additional guidance on acquiring security interests from clients.  That Comment says: “When a lawyer acquires by contract a security interest in property other than that recovered through the lawyer’s efforts in the litigation, such acquisition is a business or financial transaction with a client and is governed by the requirements of paragraph (a)” of RPC 1.8 (which requires: objectively fair and reasonable terms; written disclosure of the terms; written notice that the client should seek review by another lawyer; and informed client consent in writing).

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

    2 comments (Most recent May 1, 2014)
  • April 23, 2014 | Practice News
    Ethics Question of the Week: Can I participate in an Ask A Lawyer Day event?

    Q. Can I participate in a one day non-profit organization sponsored “ask a lawyer” type event?

    A. Illinois Rule of Professional Conduct 6.5 allows lawyers to for participate in certain programs under the auspices of a nonprofit organization or court.  Comment [1] to that rule elaborates further by stating that when participating in a program such as a “legal advice hotline” or “pro se counseling program,” “a client-lawyer relationship is established, but there is no expectation that the lawyer’s representation of the client will continue beyond the limited consultation.”  For more information about these events, consult Rule 6.5.

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