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 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.

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

Lawyers may form a company to provide legal publication notice services as long as legal services are conducted in accordance with the Illinois Rules of Professional Conduct.

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.

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 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.

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 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.

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.

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.

Under facts presented, proposal of corporation to recommend its law firm to employees at reduced rates conforms to requirements of Illinois Rules of Professional Conduct.

An attorney may not use or reveal information given him by a doctor/client concerning the doctor's patient (an attorney considered to be incompetent to practice law) but he may suggest alternatives that the doctor can pursue with the patient and his family.

Attorney practicing before Internal Revenue Service may not give reductions in fees to IRS agent before whom attorney practices in exchange for agent "doing what he could to further career of attorney."

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

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.

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 may discuss with school board attorney an offer made to attorney retained by insurer of school board to settle personal injury suit.

An attorney is in violation of the Rules by not conveying to his client a demand made by the adverse party.

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.

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.

Division of fees permitted when proportionate to services performed or responsibility assumed. Fees may not be divided with lawyer under ethical impediment to representing the client.

A bank that prepares an Illinois land trust agreement for its client and/or deed into trust is engaged in the unauthorized practice of law.

Lawyer who is a city council member and the lawyer's firm generally should not represent clients before city council, even if lawyer abstains from participation in matters handled by the firm.

A lawyer may not assist a "Financial Planner" who is engaged in the unauthorized practice of law. A lawyer may not give anything of value to a financial planner to initiate contact with prospective clients, or recommend the services of such lawyer.

Marriage relationship does not per se disqualify spouses from representing differing client interests.

A lawyer has an obligation to determine the existence of possible conflicts of interest at the outset of the representation. Upon learning of a conflict of interest, a lawyer should immediately inform his or her client and if consent is not secured for continued representation, should immediately withdraw.

If a lawyer must withdraw from representation due to conflict of interest, he or she shall not be entitled to share in fees arising out of that matter. If, however, the representation is not based upon contingent fee, the lawyer shall not be entitled to any fee following the date upon which a conflict was determined or reasonably should have been determined to exist.

A report is not mandatory under Rule 8.3 unless a lawyer has actual knowledge of a violation of Rule 8.4(a)(3) or (a)(4). If such information is received as hearsay, the lawyer is not required to attempt to confirm or disprove the allegation. If a lawyer obtains actual knowledge of misconduct falling within Rule 8.3, however, a report is required even though the action agency already has learned of the matter through a different source.

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.

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. 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.

Under stated facts, it is professionally improper for lawyer to insist that client name lawyer's bank client as fiduciary.

An attorney may not accept private employment in a matter upon which he has personally and substantially participated in a judicial capacity without full disclosure and consent by all parties.

It is not professionally improper for a law firm and a financial planning business to share certain space and facilities, so long as client confidences are preserved and there is no improper solicitation or division of fees.

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 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.

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

Lawyer for Wife in Marriage Dissolution Matter Has No Duty to Disclose Understatement of Income on Joint Tax Returns by Client's Husband.

An attorney may transfer funds which he is holding in trust for his client to pay the attorney's fees after reasonable notice to the client and consent by the client.

Vicarious disqualification does not occur if an attorney possessing a conflict is, upon joining a new office, appropriately "screened" from contact.

Representing a police officer in departmental disciplinary proceedings does not disqualify the attorney from defending criminal cases investigated by the same police department as long as the matters are not related.

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.

It is generally improper for a lawyer to represent both the buyer and the seller in a real estate transaction. Instances where such multiple representation may appropriately be undertaken are extremely rare and depend on the facts of the particular situation.

A part-time assistant state's attorney primarily responsible for civil matters may represent defendants charged with criminal violations where the violations occurred in counties other than the county where the attorney is an assistant state's attorney.

Attorneys in a firm may not hold themselves out as practicing independently or in the name of non-existent firm.

It is improper for a lawyer to advise client, prepare pleadings, motions and petitions for client as a pro se litigant, file documents in court on client's behalf, but not appear for and on behalf of client during judicial proceedings.

It is improper for an attorney to attempt to influence a court by revealing information disclosed to him in a privileged communication and which is inadmissible as evidence.

A lawyer may initiate contact with non-clients by mailing written communications to persons not known in a specific matter to require legal services, provided that such communications are clearly labeled as advertising materials.

It is not permissible for a former associate of a deceased lawyer to use the deceased lawyer's name in forming a new firm.

Attorney may initiate contact with existing clients to advise them of potential claims and may accept employment resulting therefrom.

A lawyer who is a real estate broker may not, nor may an associate lawyer, act as lawyer for a customer or for the other party to the transaction without consent after full disclosure. Such representation may also violate the Illinois Real Estate License Act of 1983.

The Code of Professional Responsibility does not sanction the creation of a network of independent attorneys to whom a law firm is contractually committed to obtain and subcontract legal work.

The relationship between a law firm and attorneys with whom it contracts to perform services for its clients does not support "Of Counsel" or "Affiliate" designation.

An attorney who has contributed to and/or participated in a judge's election campaign is not precluded from appearing before that judge in subsequent judicial proceedings.

A former presiding judge is disqualified from any participation in matters in which he acted upon the merits in a judicial capacity.

It is professionally improper for an attorney, representing the personal representative of an estate, to act as surety on the personal representative's bond.

It is not improper for an attorney, pursuant to prior agreement with the client, to limit the scope of his representation in a proceeding for dissolution of marriage to the preparation of pleadings, without appearing or taking any part in the proceeding itself, provided the client is fully informed of the consequences of such agreement, and the attorney takes whatever steps may be necessary to avoid foreseeable prejudice to the client's rights.

It is not improper for a full-time, salaried lawyer to permit his employer to claim a portion of his salary as a legal fee in a mortgage foreclosure.

A law firm may make available to its clients for retention by them, pens of nominal value imprinted with the firm's name, address, phone number and a designation of the areas of its legal practice.

A law firm may use an employment agreement which calls for a noncancellable and nonrefundable retainer, as long as the fee is not excessive.

There is no conflict involved in Lawyer A representing a client in a matter against the client of Lawyer B where Lawyer A has previously represented Lawyer B.

It is not professionally improper for a lawyer to send letters to persons who are not his clients offering to conduct seminars upon legal subjects currently of concern to the addressees.

A partner of a law firm can represent a defendant in a criminal prosecution if another partner in that same firm is a Special Assistant State's Attorney responsible for civil matters only, and the client is fully advised and grants a waiver.

It is professionally improper for a salaried City Attorney, or the members of his firm, to accept employment for criminal defense in cases where the alleged crime occurred within the city.

It is professionally proper to handle "player representation" from the attorney's law office.

It is professionally improper for a lawyer to represent a client in the defense of a traffic charge and subsequently for a member of the same law firm to oppose the former client's claim for personal injuries arising out of the same accident as the traffic violation.

The use of lay intermediaries between lawyers and those from whom they render particularized legal services constitutes the aiding of the unauthorized practice of law and is, therefore, professionally improper.