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10/4/2017Avoiding Ethical Pitfallsin Your PracticeISBA – Workers’ Compensation UpdateOctober 9, 2017Ari TelismanSenior Litigation CounselAttorney Registration and Disciplinary Commissionof the Supreme Court of Illinois“The mission of the ARDC is topromote and protect the integrity ofthe legal profession, at thedirection of the Supreme Court,through attorney registration,education, investigation,prosecution and remedial action.”1
10/4/2017 The ABA reports there are 1.3 millionactively practicing attorneys in the U.S. 95,000 attorneys licensed in Illinois. 62% male, 38% female 64,000 report principal address in Illinois 45,000 ( 70%) in Cook CountySource: Law School m/projects/investigations/2017/2
10/4/2017 Average Multistate Bar Exam scores: 2013: 142.5 2014: 140.4 2015: 138.7 2016: 138.5Average MPRE scores: 2007: 98.6 2016: 93.1Bar passage rates: Nationally: 2007: 67%2016: 58% In Illinois: 2007: 82%2016: 69% Source: National Conference of Bar Examiners3
10/4/2017 Ten months after graduation, only 60% of lawschool class of 2014 had found full-time longterm jobs requiring them to pass a bar exam. Students now amass law school loansaveraging 127,000 for private schools, 88,000 for public ones. Since 2006 alone, law student debt has surgedat inflation-adjusted rates of 25 percent forprivate schools and 34 percent for publicschools. Too Many Law Students, Too Few Legal Jobs Steven J. HarperNew York Times, August 25, 20154
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10/4/2017T. Schneyer, The Case For Proactive Management-BasedRegulation To Improve Professional Self-Regulation ForU.S. Lawyers, Hofstra L. Rev. [Vol. 42:233 2013]1.Designs measures (i.e., self-assessment tools) tocomplement traditional, reactive disciplinaryprocesses;2.Educates lawyer/firm management to developand employ an ethical ‘infrastructure’ (policies,programs, systems) to prevent misconduct andunsatisfactory service;3.Establishes an information sharing, collaborativerelationship with lawyers/firms.8
10/4/2017PMBRPrivate practitioners without malpracticeinsurance must complete a 4-hour interactive,online self-assessment: FreeCLE creditFlexibleOne year to completeNoncompliance?PMBR Confidential and not discoverable.Only required for private practitioners But available for everyone. 9
10/4/2017Investigations & Complaints 5,400 investigations were docketedagainst 4,000 different attorneys ( 4% ofall registered attorneys)142 ( 3%) of investigations led todisciplinary complaints10
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10/4/2017Investigations & ComplaintsInvestigations & ComplaintsAlleged misconduct:Investigations NeglectFailure tocommunicateExcessive/improperfeesMishandling fundsComplaints Dishonesty/fraud Mishandling funds Failure tocommunicateNeglect12
10/4/2017What Factors Cause an Investigation toLead to a Formal Complaint? Harm to client or third party Pattern of misconduct Dishonesty / fraudulent conduct Lack of remorse Lack of cooperation with ARDC investigationTechnology!13
10/4/2017IRPC 1.1, Comment 8Maintaining Competence:To maintain the requisite knowledge and skill, a lawyershould keep abreast of changes in the law and its practice,INCLUDING THE BENEFITS AND RISKS ASSOCIATED WITHRELEVANT TECHNOLOGY, engage in continuing study andeducation and comply with all continuing legal educationrequirements to which the lawyer is subject.IRPC 1.6Confidentiality:14
10/4/2017Email – Exercise Caution!Source: Above the Law, aking-client-whistleblower-docs-tothe-wsj/?rf 1Turn Off Auto Complete?15
10/4/2017IRPC 5.5, Comment 3 A lawyer must make reasonable efforts toensure that nonlawyer services outside thefirm are provided in a manner that complieswith the lawyer’s professional obligations Including Rules 1.1 (competence), 1.4(communication), and 1.6 (confidentiality).Cloud Computing16
10/4/2017Email attacks: a cautionary taleFla. Bar v. Kurt Mitchell (Fla. 2010)(10-day suspension);Fla. Bar v. Nicholas Mooney (Fla. 2011) (public reprimand).Fla. Bar v. Kurt Mitchell (Fla. 2010)(10-day suspension);Fla. Bar v. Nicholas Mooney (Fla. 2011) (public reprimand).17
10/4/2017In re Berg, M.R. 27906, 12 PR 155 (March 22, 2016)In re Hayes,M.R. 25460,12 PR 83(Sept. 21, 2015)18
10/4/2017Ferris, Thompson & Zweig, Ltd. v. Esposito,2017 IL 121297 (May 18, 2017)A growing trend:MisconductDecisions Involving‘Lawyer Review’Web Sites Appear tobe on the Rise.19
10/4/2017.Responding to a NegativeReview .In the Matter of Margrett A. Skinner,758 S.E.2d 788 (Ga. May 19, 2014)20
10/4/2017In the Matter of Margrett A. Skinner, 758 S.E.2d 788 (Ga. May 19,2014)In re John Richard Gaertner, Jr.,M.R. 28222, 2016PR00076 (Ill. Sept. 22, 2016).Discussed specific motions filed: Request for Mediation Motion to Modify Legal Decision Making Authority,Parenting Time, and Child Support “This client was very difficult.” “After two months of working on this case, the client wassent a bill and immediately questioned nearly everycharge .” “After my client refused to pay her bill, I carefullyreviewed the entire history of this case from its inceptionand discovered that I was the FIFTH attorney that myclient had hired.” This client has now retained her SIXTH attorney to assisther in this case.21
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10/4/2017IRPC 5.4PROFESSIONAL INDEPENDENCE OF ALAWYER(a) A lawyer or law firm shall not sharelegal fees with a nonlawyer LawyerParticipationin ReferralServicesOp. 2016-3(B.P.C., Ohio,June 3, 2016)23
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10/4/2017Resources Rules, disciplinary decisions, & free webinars availablethrough the ARDC website: www.iardc.org Lawyers’ Assistance Program: (800) LAP-1233 www.illinoislap.orgEthics inquiry hotline at ARDC for guidance on Rules:(312) 565-2600 (Chicago)(217) 546-3523 (Springfield)25
Rules, disciplinary decisions, & free webinars available through the ARDC website: www.iardc.org Lawyers' Assistance Program: (800) LAP-1233 www.illinoislap.org Ethics inquiry hotline at ARDC for guidance on Rules: (312) 565-2600 (Chicago) (217) 546-3523 (Springfield)
