The ARDC’s proactive program for better practice management

At the ISBA Midyear Meeting in December 2017, the Bench and Bar Section Council welcomed special guest Wendy Muchman, the Chief of Litigation and Professional Education at the Attorney Registration and Discipline Commission (ARDC). Ms. Muchman explained that consistent with the ARDC’s mission to promote the integrity of the legal profession, the ARDC is focusing on helping lawyers stay on track and minimize the risks that trigger disciplinary action and malpractice issues, rather than prosecuting them for ethics violations, which she described as a “last resort.” The ARDC’s efforts to educate and counsel attorneys include: (a) sponsoring over 250 Continuing Legal Education (CLE) programs per year; (b) referring attorneys with substance abuse or mental health problems to the Lawyers Assistance Program (LAP); and (c) taking remedial actions, such as putting lawyers on probation, mentoring them, and having them go to “ethics school.”

Notably, the ARDC’s focus on education and counseling seems to be working. Ms. Muchman observed that in 2016, there were only 83 public prosecutions of attorneys at the ARDC—a decrease from prior years. However, the ARDC remains concerned that the vast majority of those prosecutions were against either solo practitioners (solos) or small firm lawyers. Ms. Muchman further noted solos often do not have legal malpractice insurance. While lawyers are not required to have legal malpractice insurance in order to practice law in Illinois (but are required to report to the ARDC whether or not they are insured), Ms. Muchman expressed concern that 41% of solos do not have legal malpractice insurance. Lawyers who have not obtained legal malpractice insurance have not gone through the insurance application process requiring a lawyer to review and analyze the risks associated with the practice of law.

Thus, the ARDC has taken a proactive approach to assist solos and other lawyers who are uninsured. In accordance with the January 2017 amendments to Illinois Supreme Court Rule 756(e), effective January 1, 2018, Illinois became the first state in the country to adopt a mandatory program for all lawyers in private practice who do not maintain legal malpractice insurance, in order to register for 2019. The mandatory program is known as Proactive Management Based Regulation (PMBR), and is a free, four-hour online self-assessment course regarding law firm operations. Administered by the ARDC and accessible from the ARDC website (www.iardc.org), the PMBR course is an interactive educational program divided into eight learning modules, which lawyers may take on most electronic devices at various times and in various increments.

The PMBR course will cover many topics, including: (a) Technology and Ethics; (b) Client Relationships; (c) Fees, Costs and Billing; (d) Trust Account and Record Management; (e) Conflicts of Interest; (f) Civility; (g) Diversity and Inclusion; and (h) Attorney Wellness. The topics of Diversity, Inclusion, and Attorney Wellness are consistent with the recent amendment to the Illinois Minimum Continuing Legal Education (MCLE) Rules which currently require that a minimum of six hours of the total CLE hours for each two-year reporting period be in the area of professionalism, civility, legal ethics, diversity and inclusion, or mental health and substance abuse. Ms. Muchman observed that approximately 30% of the ARDC’s cases involve attorney wellness issues.

Ms. Muchman advised that when programs similar to the PMBR course were instituted in Australia, Canada, and Wales, the number of complaints against attorneys decreased as did the number of public prosecutions. Ms. Muchman stressed that the ARDC wants Illinois lawyers to succeed in the practice of law and accordingly, encourages all attorneys—including those who have legal malpractice insurance as well as lawyers who are not in private practice—to complete the PMBR course, which qualifies for MCLE professional responsibility credits. 