Monday, July 17, 2023

Should this lawyer be subject to discipline in Illinois?

Back in 2013, the Illinois Supreme Court decided in a case called In re Karavidas, 999 N.E.2d 296 (Ill. 2013), that the state could not subject a lawyer to discipline for conduct outside the practice of law unless the state could make a case that the conduct was a violation of a specific rule of professional conduct.  As the court explained:

    . . . we hold that professional discipline may be imposed only upon a showing by clear and convincing evidence that the respondent attorney has violated one or more of the Rules of Professional Conduct. Mere bad behavior that does not violate one of the Rules is insufficient.

    . . . . [B]efore professional discipline may be imposed . . . , the [State] must demonstrate that the attorney violated the Rules of Professional Conduct. To the extent that any of our prior cases suggest that an attorney may be subjected to professional discipline for conduct that is not prohibited by the Rules of Professional Conduct or defined as misconduct therein, we hereby [overrule those cases].  . . . Personal misconduct that falls outside the scope of the Rules of Professional Conduct may be the basis for civil liability or other adverse consequences, but will not result in professional discipline. 

The court wanted to put an end to disciplinary actions brought on tenuous charges based on claims of conduct unbecoming the profession, or conduct that tarnished the image of the profession, etc., which is not surprising since other jurisdictions have moved away from the old "appearance of impropriety" standard too. 

And this is why this bit of news caught my eye:  a disciplinary complaint has been filed in Illinois against a lawyer for inappropriate harassing conduct directed at the staff of a law library.  

I am not in any way suggesting that the conduct was not inappropriate, or objectionable.  In fact, maybe it was criminal - I don't know.  What I am suggesting is that the complaint does not seem to be consistent with the principle set in Karavidas.

You can read the complaint here, but if you are looking for the specific rule of professional conduct allegedly violated you won't find it until the very end of the last paragraph of the complaint, almost as an afterthought.  And that rule is 8.4(d) which relates to conduct prejudicial to the administration of justice.  

Here is paragraph 19 of the complaint:

    . . . Respondent has engaged in the following misconduct: conduct that is prejudicial to the administration of justice, by conduct including, but not limited to, touching the head and hair of H.M., a Will County Courthouse law library employee, without her consent in March 2021; telling an employee of the Clerk’s office to “eat shit and die;” asking a female employee of the Clerk’s office to have dinner with him; and making a comment to the effect of “If I were 55 years younger, I would get with her,” about C.S., a law student-judicial extern, to a group of judicial externs; resulting in disruption to Courthouse operations and necessitating the use of Courthouse resources to investigate Respondent’s conduct and to place restrictions on Respondent’s access to Courthouse facilities, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010).

Again, I agree that the conduct was inappropriate, and may be the basis for some form of liability.  What I am wondering is whether it meets the requirements set forth by the Court in Karavidas.  At first sight, it does since the complaint is clearly using a Rule of Conduct to claim the basis for discipline.  But I would expect someone to raise the questions as to whether the conduct is the type of conduct to which that rule should apply.

I always thought of the notion of "prejudicial to the administration of justice" as conduct that interfered with a court's ability to properly conduct a proceeding.  But maybe my understanding is too limited in that way.  Or, on the other hand, maybe the argument in the complaint is trying to stretch the concept a little bit too far.  What do you think?

Or, maybe what this shows is that we need a new rule, because you might be wondering why the disciplinary agency did not charge the attorney with a violation of a rule like Model Rule 8.4(g).  

The answer to that question is that Illinois has not adopted Model Rule 8.4(g) because when the ABA adopted Model Rule 8.4(g), Illinois had a preexisting rule regulating conduct deemed to constitute discrimination or harassment.  The problem is that Illinois' rule is of limited applicability and would not apply to the facts of this case.  You can find it here under 8.4(j).

So, if the conduct in this case is something that ought to be the subject of professional discipline, maybe a well drafted version of Rule 8.4(g) should be adopted to deal with conduct like the one in this case rather that trying to stretch the interpretation of the meaning of "the administration of justice" in Rule 8.4(d).  

Of course, what constitutes a "well drafted" version of Model Rule 8.4(g) is still up for grabs, and before the courts, and would be the subject of a different and long conversation.  For my posts on that subject you can click here and scroll down, but to save you the research, let me just say that I think the Model Rule is vulnerable to a Constitutional attack, and that I think the rule in New York is the best drafted one I have seen yet.  

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