ISBA Ethics Opinions by Year

Under Rule 4.2, a lawyer, even one who is acting pro se, is not permitted to have contact with a party who is represented in one aspect of a case and unrepresented in another aspect of the case, without the consent of that party’s lawyer, or the authorization of law or court order.

Rule 1.13 of the Illinois Rules of Professional Conduct governs when and whether an in-house lawyer is required to report possibly fraudulent conduct of the entity’s employees, officers, or other individuals to higher authorities within the organization and to others outside the organization. Even if such reporting is not required, an in-house lawyer may be permitted to disclose such information within the organization, subject to the lawyer’s obligations to maintain client confidences under IRPC 1.6 and 1.9.

A lawyer in possession of funds whose ownership is disputed is required to hold those funds until the dispute has been properly resolved, or to initiate an interpleader action to have the court decide the proper disposition of the money.

A lawyer who won a verdict for a client in litigation that is being appealed may allow the client to obtain financing and assist the client in obtaining financing from a third party during the pendency of such litigation. Although the Rules do not prohibit the lawyer’s assistance or cooperation, the lawyer’s assistance and cooperation are governed by several ethical limitations including the lawyer’s duty to render independent professional judgment and candid advice to the client free of third party interference, to maintain confidentiality of the client’s information and to obtain the client’s informed consent for the lawyer’s disclosure of any information to the finance company.

A lawyer must maintain records that identify each client and reflect whether the client’s representation is active for an indefinite period of time. A lawyer must maintain all financial records related to the lawyer’s practice as well as complete records of trust account funds and other property of clients or third parties held by the lawyer for at least seven years. For other records and materials, if appropriate steps are taken to return or preserve actual client property or items with intrinsic value, it is generally permissible for a lawyer to dispose of closed file materials within a “reasonable” time after conclusion of a matter; and seven years should generally be considered a reasonable time. Sending former clients notice of the proposed disposal of a closed file generally should not be required. Any method of disposal must protect the confidentiality of client information.

A lawyer may not withhold controlling legal authority from a tribunal as a trial strategy to insure reversible error on appeal. Lawyers reading about the contemplated strategy on an online discussion group have no duty to report the posting lawyer.

A law firm may continue to represent a city in municipal matters even though a paralegal employed by the firm is a member of the city council and the council has authority over the work and whether the firm’s bills get paid.

A lawyer may share court-awarded legal fees with a nonprofit organization that referred the matter to the lawyer. However, in the absence of court-awarded fees, the lawyer may not share fees with the organization, and may not pay a referral fee to the organization except as may be permitted under Rule 7.2(b)(2).

In any criminal proceeding, a prosecutor may convey a plea offer to a pro se defendant prior to a court proceeding, regardless who initiates the contact. The communication must simply convey the plea offer and not make any recommendations as to the value of the offer. The communication must also identify that the prosecutor is not disinterested, clarify any misconception the person may have about the prosecutor's role and advise the person about the right to secure counsel.

A lawyer who is interviewed on television may wear clothing bearing the lawyer’s firm’s logo and type of law practiced.

A lawyer ordinarily represents a partnership as an entity for conflicts of interest purposes. Where a lawyer has represented a partnership and all individual partners in various matters in a common representation, and one partner subsequently files an arbitration matter against another partner, whether the lawyer may represent the defending partner with informed consent will depend on the circumstances. Similarly, whether the lawyer can continue to represent the partnership or any of the partners in other matters with informed consent will depend on the circumstances.

When a lawyer discovers that his or her client in an administrative hearing has previously submitted false material evidence to the tribunal, the lawyer must attempt to persuade the client to correct or withdraw the false evidence, but if that fails and if the effect of the false evidence cannot otherwise be undone, the lawyer must disclose the false evidence.

An out-of-state lawyer may practice immigration law in Illinois with the use of a properly supervised nonlawyer in Illinois who collects information to be used by the lawyer in filling out immigration forms.

It is improper for an estate planning attorney to charge a fee calculated solely as a percentage of the value of the estate.

Labeling communications to solicit professional employment as "promotional" materials does not comply with requirements of the Illinois Rules of Professional Conduct to label such materials as "Advertising Material.”

A lawyer must maintain records that identify the name and last known address of each client, and reflect whether the client’s representation is active or concluded, for an indefinite period of time. A lawyer must keep complete records of trust account funds and other property of clients or third parties held by the lawyer and must preserve such records for at least seven years after termination of the representation. A lawyer must also maintain all financial records related to the lawyer’s practice for not less than seven years. For other materials, if appropriate steps are taken to return or preserve actual client property or items with intrinsic value, then it is generally permissible for a legal services program to dispose of routine case file materials five years after case closing. Other considerations, such as administrative expense and the six-year Illinois statute of repose, suggest a general retention period for most lawyers of at least seven years. Any method of disposal must protect the confidentiality of client information.

A lawyer not admitted in Illinois may not primarily practice in this state, physically or through a virtual office, even if the co-owner of the law firm is a lawyer, licensed in Illinois, who has direct supervision of the non-admitted lawyer on matters involving Illinois clients.

A lawyer may not continue to represent a school district against which the lawyer’s partner has initiated an adverse proceeding. Recusal from consideration of the partner’s adverse proceeding will not remove the conflict of interest. However, the school board may give informed consent to the lawyer’s continued representation in unrelated matters if the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation despite the conflict of interest. The notion of avoiding the “appearance of impropriety” is no longer a standard of lawyer professional conduct in Illinois.

After departure, an associate who has left a law firm may contact clients of the firm with whom he had an attorney-client relationship. The Rules of Professional Conduct do not preclude him from informing such clients that he has departed and that they have the right to continue with the firm or transfer the file to him. Notice to the client is mandatory where a departing associate has been involved in representing the client in such degree or kind that the departure could reasonably affect either the client’s decisions regarding the representation or the means of accomplishing the client’s objectives. In such case, the associate must ensure that he or the firm (or both) timely inform the client of his departure. Whether such notice must issue before the associate’s departure will depend on the circumstances.

An attorney may not encourage a client to engage in the practice known as “taint shopping,” whereby a prospective client meets with an attorney for the sole purpose of disqualifying the attorney from representing an opponent. An attorney who participates in an initial consultation with a prospective client, but who is not retained by the prospective client, is not prohibited from later representing a client with materially adverse interests in the same or in a substantially related matter if: (a) before the consultation, the attorney obtained the prospective client’s informed consent of any conflict that might arise from the information disclosed by the prospective client; (b) even in the absence of an informed consent, the attorney did not receive information that could be significantly harmful if used in the matter; or (c) the attorney can establish that the prospective client revealed information to the attorney with no intention of retaining the attorney.

A conflict of interest would be created between Lawyer’s representation of one client and other similar clients if Lawyer were to sign a confidentiality agreement required by an accounting firm that would prohibit Lawyer from divulging a package of ideas developed by the accounting firm that would reduce the client’s tax obligations. For purposes of the Illinois Rules of Professional Conduct, a lawyer cannot agree to keep confidential interpretations of the law.

A lawyer who is disqualified by reason of his or her likely being called as a necessary witness may continue the representation until commencement of trial. Representation of multiple clients in a single matter is not prohibited, although a number of special concerns must be addressed. Representation of multiple clients in the same matter will ordinarily require the informed consent of the clients.

A law firm’s name may not imply partnership where no actual partnership arrangement exists. A law firm’s name may not mislead the public. A law firm’s name may not contain the name of a partner who withdraws from the firm to join another law firm. A law firm’s name may contain the name of a retired partner or one who has an “of counsel” relationship to the firm, provided the firm takes reasonable steps to show that partner’s status.

A law firm generally has no ethical obligation to file a lawsuit on behalf of a missing client to satisfy an impending statute of limitations. There may be exceptions, however, if the client specifically authorizes the filing of a lawsuit prior to the client’s disappearance and provides the law firm with sufficient information with which a complaint can reasonably be prepared and filed.

Lawyer may properly terminate representation if client's conduct makes it unreasonably difficult for lawyer to carry out employment effectiveness or client fails to substantially fulfill agreement to pay lawyer's fees or expenses; however, lawyer must take reasonable steps to avoid foreseeable prejudice to client as a result of termination. Discarding client's files if client does not retrieve them after 30 days due notice will not likely comply with lawyer's duty to avoid prejudice to client upon termination of representation.

A lawyer for a lender has an obligation to correct a home loan applicant's misunderstanding that the lawyer also represents the applicant in the home financing transaction if the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter.

A lawyer who, without notice of the inadvertent transmission, receives and reviews an opposing party’s confidential materials through the error or inadvertence of opposing counsel, may use information in such materials. A lawyer who knows of an inadvertent transmission before confidential materials of an opposing party have been opened and reviewed should return such materials without examination. A lawyer has a duty to advise a client that confidential information was inadvertently transmitted to and read by opposing counsel.

Lawyer may represent husband against wife in divorce where wife is not represented; but lawyer may not, at same time, represent husband and wife jointly in filing for bankruptcy.

A lawyer may not participate or assist in any way in a business operating as a for-profit lawyer referral service.

A lawyer who has been formally discharged by a client in favor of new counsel may not thereafter contact the former client (except through his new counsel) where the purpose is to further the lawyer's claim for fees and expenses; statements by the lawyer made for the purpose of soliciting the former client's case and which are false or misleading violate the Rules of Professional Conduct; such statements, however, are not subject to mandatory reporting if knowledge thereof is obtained as a result of a privileged communication.

A third party may not offer anything of value to secure legal business for a lawyer with the lawyer's knowledge and acquiescence.

It may be professionally improper for a lawyer to represent both a renouncing spouse and a claimant in the same proceedings.

It is not professionally improper for a lawyer to represent the same person in a representative capacity as executor and in an individual capacity as debtor to the estate, especially where a special administrator has been appointed to collect the debt.

Absent a narrowly drawn power of attorney, Law Firm cannot negotiate a check on behalf of a missing client and must keep safe any such check.

A lawyer's representation of a corporate client does not necessarily prohibit the lawyer from accepting another representation adverse to a subsidiary or other affiliate of the corporate client in an unrelated matter; but such representation may not be undertaken without appropriate disclosure and consent where the particular circumstances require that the affiliate should also be considered the lawyer's client or where the representation of either the corporate client or the prospective client will be materially limited by the representation of the other.

A lawyer no longer with a law firm may have access to closed files of that firm where the lawyer was in an attorney-client relationship with the client of the file in question.

Lawyer may represent university as legal counsel even though faculty member with dispute against the university had previously discussed that dispute with the lawyer; provided, however, that the lawyer take appropriate action to avoid being placed in a conflict of interest situation, and , if such a situation develops, that the lawyer follow Rules regarding conflicts.

Individuals may complete and file corporate documents; however, if the individual receives any assistance or advice from nonlawyers in completing the forms, such as forms for filing articles of incorporation, even those provided by the Secretary of State, the person providing the assistance is unlawfully engaged in the unauthorized practice of law. This determination includes assistance provided by accountants.

Upon termination of representation, a lawyer is required to return all papers and property received from the client, but may retain copies at the lawyer's expense. If the client requests copies of other parts of the lawyer's file, the lawyer should make copies of those materials in the lawyer's file to which the client is entitled to access available at the client's expense.

An attorney's failure to advance payment for or collect payment from a client to satisfy a court reporter's fee is not a violation of the Rules of Professional Conduct.

It is not per se improper for a lawyer to sue a current client (a public body) in an unrelated matter if both clients consent after full disclosure.

Whether an attorney "reasonably believes" his dual representation will not adversely affect his relationships is determined by an objective, not subjective, standard based upon what the "reasonable attorney" would believe.

A lawyer or law firm may participate in a seminar relat­ing to Advance Direc­tive Ser­vices in which a health care organi­zation (HCO) assists in prep­ara­tion of mate­ri­als so long as any payment by the lawyer or firm to the HCO is limited to the costs of prepa­ration of the materi­als, those mate­ri­als and their distri­bu­tion comply with the rules on adver­tising, and all legal servic­es are rendered solely by the lawyer.

It is professionally improper for a lawyer to participate in an arrangement with a non-lawyer whereby the latter engages in conduct which constitutes the unauthorized practice of law and where the lawyer obtains referrals in return for the payment of "marketing" or "consultation" fees and other things of value by the lawyer to the non-lawyer.

It is professionally improper for a law firm to participate in a cellular telephone service offering legal advice where, based on the facts presented: the promotional materials are misleading; the promotional materials fail to include the name of a lawyer responsible for the contents; the firm may be participating in improper fee splitting and a partnership with a nonlawyer; there is no apparent avoidance of conflicts of interest; and client confidences may not be preserved.

1. As a general rule, an attorney should avoid appearing both as the advocate and as witness in the same case.
2. An attorney may act as a witness and have another attorney of the same firm act as advocate in a trial.
3. An attorney may be both advocate and witness if substantial hardship will result to the client if the attorney is disqualified as counsel.

An attorney may be retained to render services for a client by a third party. The party must be authorized to retain the attorney and the attorney's judgment must not be directed or regulated by the third party. The third party must be paid on either an hourly or contingent fee basis by the client and the attorney must not share fees with a non-attorney third party.

Employment agreement providing for execution of promissory note by attorney/employee payable only if he/she competes after terminating employment is professionally improper.

An attorney must hold property of clients or third persons separate from the attorney's own property. All nominal or short-term funds of a client must be deposited into an interest bearing trust account, with the Lawyers Trust Fund of Illinois designated as income beneficiary. An attorney may transfer such funds to pay his attorney's fees only after reasonable notice to and consent by the client.

A settlement proposal to sign a release and confidentiality agreement as an alternative to projected media publicity if a judgment is obtained against the defendant is not per se professionally improper.

Attorney report is not mandatory under Rule 8.3 unless the attorney has knowledge, which is not otherwise protected, of a violation of Rule 8.4(a)(3) or (4).

Attorney is required by Rule 1.15(c) to hold in a separate account, the funds disputed by the client and the client's former attorney.

An interpleader action is not inconsistent with Rule 1.15.

An attorney may report the issuance of an NSF check to the State's Attorney's Office in circumstances where such reporting is not to obtain an advantage in a civil matter.

1. A law firm may hire or retain individual attorneys to cover court call motions and depositions.
2. An attorney hired by a law firm on an hourly basis to handle motions and depositions, should procure the client's informed consent (Rules 1.1(c) and 1.4) not necessarily in writing (1.5(f)).
3. An attorney hired on an hourly basis is considered an associate attorney to a law firm.

Attorney may ethically assist clients in obtaining loans for payment of attorney fees, providing the attorney protects the client's confidences and meets his fiduciary obligation of complete disclosure.

1. Attorney generally should not be witness and advocate in the same trial.
2. Attorney's suit for fees from former client is an express exception to the rule prohibiting the advocate's testimony as a witness.
3. Another member of the advocate/witness law firm may represent the client in an action if there is no conflict and certainly in action for payment of fees.

An attorney may solicit clients from a targeted group of individuals already involved in litigation, so long as that solicitation complies with Rule 7.3

An attorney does not aid in the unauthorized practice of law when assuming representation of a client who has been provided previous services by a non-attorney, so long as the attorney merely accepts representation of the client, rather than actively participating with the non-attorney in continued settlement actions.

Participation in a computerized, for profit lawyer referral system is not permitted by the Illinois Rules of Professional Conduct

It is not improper for an attorney to act as general counsel to a corporation and serve as a board member of that corporation so long as there is full disclosure to the board any possible conflicts that might arise through his law practice or his friend's and the attorney refrains from entering into any non-legal business transactions with his corporate client.

It is improper for assistant public defenders sharing defense of delinquency cases from a common office, with shared secretarial and investigatory services, severally to represent both parent and child in a neglect/dependence proceeding.

It is not improper for attorney to disclose to the news media details of his report to the ARDC on another attorney where such disclosure does not pose a serious and imminent threat to the fairness of the ARDC proceedings or any related civil or criminal proceedings.

An attorney is not required to report misconduct of another attorney learned through a privileged attorney/client communication.

An attorney is obligated to report only certain forms of misconduct by another attorney, and only if he has "knowledge" of such misconduct as defined in the Rules of Professional Conduct.

Under certain circumstances, invoicing client for secretary's overtime work is professionally proper.

Attorney retained by mother and minor daughter to pursue paternity action. Case is tried, lost, appealed, briefed and argued on appeal. While awaiting decision by Appellate Court, attorney may not honor mother's instruction to dismiss appeal.

Attorney's contract of employment with firm that precludes him for a period of three years from his termination date from calling upon, servicing or soliciting clients that dealt with the firm while he was employed violates Rule 5.6 prohibitions against restricting the right of an attorney to practice after terminating employment with a firm.

1. There is no duty to report knowledge of professional misconduct protected as a confidence by the lawyer-client privilege.
2. The duty to report knowledge of professional misconduct of another lawyer should not apply to a lawyer retained to represent the lawyer whose professional conduct is in question.
3. There is a duty to report professional misconduct which is otherwise subject to mandatory reporting even if the ARDC has learned of the same misconduct from another source.

Lawyer may operate business of providing economic analyses in conjunction with law practice from existing law office.

Where a referring lawyer and a receiving lawyer comply with the Rules governing referral fees, the Rules do not regulate the division of the fee between the referring lawyer and the receiving lawyer.

It is professionally improper for an attorney, employed by an institution which markets Revocable Living Trusts to consumers as estate planning tools, to prepare or review such documents; or for the attorney to share fees with the institution.

1. It is improper for an attorney, whose firm represents an insurance company in most of the company's insurance defense work, to be appointed the administrator of a decedent's estate and settle a wrongful death claim with the insurance company, absent full disclosure to the heirs of the estate and to the insurance company and absent their consent to such appointment.
2. It is improper for attorneys to sign a surety bond on behalf of another attorney from the same firm, when the firm has been hired by the attorney to represent him in his capacity as administrator of a decedent's estate.
3. It is not necessarily improper for a judge to appoint an attorney as administrator of an estate, even though that attorney has made financial contributions to the judge's campaign committee, and another attorney from the same firm served on the judge's campaign committee when the judge sought to be elected to his present judicial post; whether the attorney should accept such appointment depends upon whether the appointment is likely to result in a violation of the Rules of Professional Conduct or other law, and ultimately whether the acceptance of the appointment will be prejudicial to the administration of justice.

Improper for Public Defender's Office to disclose secret of one client to another client represented by different Assistant Public Defenders in unrelated cases.

Multiple representation of buyer and lender in real estate transaction may be prohibited where interest of each cannot be adequately represented.

An attorney aids in the unauthorized practice of law when the attorney participates in a not-for-profit organization plan whereby the not-for-profit organization procures from its requesting member information necessary to prepare a will for the member, sends that information to the attorney who, based on that information, drafts the will and returns it or furnishes other legal advice concerning the will to the not-for-profit organization, which then transmits the will or advice to its requesting member.

Multiple representation in "domino"-type transactions permitted only with full disclosure to and consent from all parties; disclosure must be continuing throughout the representation.

1. Lawyer is prohibited from representing husband in divorce action where lawyer had previously represented husband and wife in other joint matters;
2. Prohibition extends to lawyer's partner and firm.

1. A lawyer who is also an insurance agent may perform legal services and provide insurance services for same client.
2. A lawyer who is also an insurance agent may refer a client to another insurance agent and receive an insurance commission upon disclosure and consent.

A State's Attorney may not accept a referral fee in a wrongful death case where a violation of a city or county ordinance is in question.

It is professionally improper for newly elected State's Attorney to continue and expand his predecessor's direct communication with accused person represented by counsel without consent of lawyer for the accused.

1. It is professionally proper for a lawyer to represent two competing institutions where matters related thereto are substantially unrelated.
2. It is professionally proper for a lawyer to represent two competing lending institutions, one of whom he also serves as a member of the Board of Directors, as long as he secures consent to such representation from both institutions.

It is improper for a law firm's client to provide space within its own business office for the regular use of a firm's paralegal to take phone calls and discuss matters in the law firm's name; it is improper for a law firm to allow a "paraprofessional" employed by one of the firm's clients to accept phone calls at the client's place of business in the law firm's name.

It is improper for a State's Attorney to communicate with a person he knows to be represented by counsel, who has admitted allegations of charges and has been placed under court supervision, where the communication is regarding other parties to the same incident without the prior consent of the lawyer representing A.

A lawyer director of Student Legal Services at a university whose office is funded by a portion of student activity fees paid by all students at the university may defend a student against criminal charges of battery against another student and may represent one student in a civil case against another student, provided that such lawyer has not consulted with or represented the other student involved.

Part-time public defender may represent private client against county with consent of private client after full disclosure of employment relationship with county.

A law firm may, with consent, represent an insurance company in a declaratory judgment action seeking to have other insurers provide coverage for the insurance company's insured while defending that insured in the underlying action where the insurance company will not contest coverage.