ISBA Board of Governors Approves Three Ethics Opinions
The Illinois State Bar Association’s Board of Governors approved three new Professional Conduct Advisory Opinions on September 25 during its regularly scheduled Board meeting.
The opinions address an attorney’s duty to disclose confidential information about a client’s fraud to third parties in an effort to prevent, lessen, or rectify the fraud; a lawyer’s responsibility to hold funds whose ownership is disputed until the dispute is resolved; and the ethical Rules that do not bind an attorney to continue proceeding with an appeal of a court’s decision appointing a guardian for a client who currently lacks mental capacity, in the manner discussed between the lawyer and the client previously, when the client had adequate mental capacity.
Opinion 20-05 addresses an attorney’s duty to disclose confidential information about a client’s fraud to third parties in an effort to prevent, lessen, or rectify the fraud. A lawyer who knows about a client’s fraud may disclose otherwise confidential client information to third parties if done in such a manner as to prevent, lessen or rectify the client fraud. However, even if the information is not disclosed, the lawyer will still likely need to withdraw as client’s attorney and take other actions.
Opinion 20-06 relates to a lawyer’s responsibility to hold funds whose ownership is disputed until the dispute is resolved. 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.
Opinion 20-07 deals with the ethical Rules that do not bind an attorney to continue proceeding with an appeal of a court’s decision appointing a guardian for a client who currently lacks mental capacity, in the manner discussed between the lawyer and the client previously, when the client had adequate mental capacity. When a lawyer has been representing a client for several years in opposition to the court appointment of a guardian for the client’s estate, and the lawyer currently believes that the client is mentally incapacitated, the Rules do not mandate the lawyer’s continued prosecution of the client’s appeal attempting to reverse the trial court’s judgment appointing an estate guardian, in the manner of prosecution last discussed between the lawyer and the client when the lawyer believed the client had adequate capacity to make considered decisions.