Thursday, July 2, 2009

Illinois adopts ABA Model Rules

The Illinois Supreme Court announced yesterday it has (finally) adopted a new set of rules mostly based on the ABA Model Rules of Professional Condcut. The rules will be effective starting January of 2010.

The text of the new rules is available online here and in pdf format here. A summary of the changes is available here.

In 2008, while the rules were still being considered by the Supreme Court, I published an article discussing them in detail. The article is available here. In it, I praised the work of drafting committees for the most part, but I also criticized some aspects of the new rules.
Here are a a few of the most significant changes in the new rules:

--Unlike the current rules, the new rules include comments (usually the same text of the comments to the ABA Model Rules).

--The new rules abandon the old notion that the duty of confidentiality is based on a distinction between confidences and secrets which results in a rule that protects a much broader range of information. (The Ethical Quandry blog has a short comment on the implications of the new rule on confidentiality here.)

--The new rule on confidentiality also significantly changes the circumstances where disclosure of confidential information is permitted and expands the circumstances where it is mandated.

--The new rules fix an important discrepancy between the title of rule 4.2 and its text.

-- The new rules change the approach to the issue of whether an attorney can represent a client if the attorney has to testify in the client’s case.

--The new rules adopt a specific rule banning sexual relations with a client unless a consensual sexual relationship existed between them before the client-lawyer relationship began and the comment to the rule clarifies that when the client is an organization, the rule prohibits a lawyer for the organization (whether inside counsel or outside counsel) from having a sexual relationship with a constituent of the organization who supervises, directs or regularly consults with that lawyer concerning the organization’s legal matters. (Rule 1.8(j))

--The new rules adopt a new rule to regulate duties to prospective clients based on Model Rule 1.18.

--The new Rule 3.8 on special responsibilities of prosecutors adds a duty to protect the defendant's right to counsel.. It also adds a controversial statement regarding the authority of a prosecutor to subpoena other lawyers.

--Unlike the ABA Model Rules, the new Illinois rules do not require consent to conflicts of interest to be in writing.

--Sadly, the new rules eliminate the current rule urging lawyers to provide pro-bono services.

--The approach to the duty to report another lawyer's misconduct seems to mandate disclosure of more information and under more circumstances than the ABA Model Rule.

--The new Rule 4.4(b) states that a lawyer who receives a document relating to the representation of a client that the lawyer knows was inadvertently sent should promptly notify the sender. The rule, however, does not impose a duty to return the document or to refrain from reading it. The comment to the rule states that unless there is applicable law that requires the lawyer to return the document, the decision to return it is a matter of professional judgment
and personal choice.

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