New rules give the Illinois Attorney Registration and Disciplinary Commission authority to prosecute actions for the unauthorized practice of law.

Chest bumps, high fives, and towel snaps - figuratively speaking, that is - were the order of the day for ISBA leaders and staff members on December 7, 2011.

Just as the joint Midyear Meeting of ISBA and the Illinois Judges Association was getting underway, the Illinois Supreme Court adopted new rules giving the Illinois Attorney Registration and Disciplinary Commission authority to prosecute actions for the unauthorized practice of law.

New SCR 779

Effective immediately, SCR 752 has been amended to empower the ARDC administrator to investigate allegations of the unauthorized practice of law, including investigations involving disbarred lawyers and other persons, entities, or associations that the Illinois Supreme Court has not authorized to practice law. New SCR 779, Unauthorized Practice of Law Proceedings, sets forth different methods of commencing those proceedings depending on the entity involved. SCR 779(a) provides that the administrator shall commence UPL proceedings against a suspended Illinois lawyer or a lawyer from another U.S. jurisdiction by filing a disciplinary complaint before the hearing board and proceeding as SCR 753 directs.

SCR 779(b) provides that proceedings against disbarred Illinois lawyers and nonlawyers shall take place in the circuit court in which venue is proper under the Code of Civil Procedure or other applicable statute. It empowers the administrator to begin those proceedings as civil and/or contempt actions pursuant to the supreme court's rules, its inherent authority over the practice of law, or other laws of the state related to the unauthorized practice of law.

As in other states, the unauthorized practice of law has long been prohibited in Illinois. The Attorney Act, 705 ILCS 205/1 et seq, provides that persons holding themselves out as qualified to practice law without being licensed are guilty of contempt of court and subject to equitable relief, actual damages, and a fine up to $5,000, payable to the Illinois Equal Justice Foundation. The statute authorizes complaints to be filed as in the manner of indirect civil contempt and provides that its remedies are to be in addition to any other remedies at law.

"The resources of the private bar…are limited"

ISBA general counsel Charles J. Northrup explained the necessity for the new rules vesting ARDC with UPL police power. "Until this rule change, UPL prosecutions and the resulting development of case law were almost exclusively undertaken by the organized bars. While there has never been a shortage of complaints against those engaged in UPL, the resources of the private bar to investigate and prosecute it have been limited."

Past ISBA president and Illinois Real Estate Lawyers Association founder and chairman John O'Brien, whose name has long been synonymous with Illinois lawyers' efforts to deter the unauthorized practice of law, illustrated Northrup's point.

More than a decade ago, O'Brien said, IRELA brought two suits alleging the unauthorized practice of law by different realtors. Though both resulted in favorable settlements, the process was long, cumbersome, and expensive, costing the association well over $100,000 per suit. "We had to hire law firms and file suit in circuit court. They sued me personally."

Observing that state's attorney's offices and the Illinois Attorney General have many demands besides UPL on their prosecutorial resources, and observing that states had adopted more streamlined and effective procedures for addressing UPL allegations, O'Brien, together with many of his fellow past ISBA presidents, other bar leaders, and staff members, enlisted The Chicago Bar Association and the ARDC to participate with ISBA in drafting the proposed new rules. By early 2010, the groups had agreed on a proposal and submitted it to the supreme court for consideration.

"Now [ARDC] can get involved"

ARDC Chief Counsel James Grogan said, "We worked closely with both bar associations to make this as practical a series of regulations as possible. The new procedure in no way diminishes the jurisdiction of other authorities, such as state's attorney's offices or the Illinois Attorney General, to proceed against the unauthorized practice of law. It provides another opportunity to present to the Illinois Supreme Court those incidents that they need to be aware of."

Grogan emphasized the general bene­fit from expanding his agency's authority to address UPL. "Now, where there is a definite harm to the public or there could be a profound impact on the public, we can get involved."

Northrup echoed Grogan's satisfaction. "With the new rule vesting the ARDC with the authority to prosecute UPL, we are confident that important and additional resources will now be brought to bear in the UPL fight. This represents a significant advancement in consumer protection from those unscrupulous individuals who would seek to mislead the public by inappropriate and harmful 'legal' advice.

"Lawyers and the organized bars are benefitted by having a powerful partner in the UPL prosecutions," Northrup said. "And finally, the prestige of the court is enhanced by its direct involvement, through the ARDC, in protecting the public."

O'Brien, who singles out past ISBA President Jack Carey, chair of ISBA's Task Force on Unauthorized Practice of Law for recognition, concurred. "At the end of the day, this is the protection of the public from charlatans."