ISBA Ethics Opinions by IRPC Rule 1.16

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.

A lawyer may not produce banking records, client trust account records, ledger and client billing records requested by spouse’s lawyer in a pending divorce between lawyer and spouse, absent a court order. In the event of a court order ordering the production of the documents, the lawyer may reveal information only to the extent reasonably necessary to comply with the order and should seek protective action when appropriate.

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.

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 designated by an insurance company to defend an insured party represents and has the same professional obligations that would exist had the lawyer been person­ally retained by the insured. Disagreement between the lawyer and the insured as to defense strategy may require the lawyer to withdraw.

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 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.