Sanctions for citing fake cases (created by "AI")

As I am sure you know, there are many court opinions out there now imposing sanctions on lawyers for filing documents with fake citations created by AI.   (For an updated list you can check out this helpful website).

For that reason, a story on yet another court imposing sanctions is not that remarkable, but I want to point this one out to remind you that sometimes the court will order the lawyer (not the client) to pay the sanction.  

As reported in the ABA Journal, in this case, a lawyer and a law firm (in Illinois) were ordered to pay nearly $60,000 for filing a court document that included a fake citation. The lawyer himself, personally, out of his own pocket, was ordered to pay $10,000. The firm was ordered to pay $49,500.

Illinois Bar Guide for Lawyers on Implementing AI Responsibly

 The Illinois Attorney Registration and Disciplinary Commission (ARDC) recently released “The Illinois Attorney’s Guide to Implementing AI” (the “Guide”), providing a practical framework for legal professionals to understand and deploy AI in their practices while honoring the ethical demands of confidentiality, data security, and supervision.

For more on the story go here.

Illinois Supreme Court Approves Program Allowing Certified Individuals to Provide Limited Legal Assistance Under Supervision of a Lawyer

 Chief Justice Mary Jane Theis and the Illinois Supreme Court announced this week the approval in concept of a Community Justice Worker Program that will allow for certified individuals who are not lawyers to provide limited legal assistance in designated high-need areas of law under the supervision of an Illinois-licensed attorney.

Go here for more on the story.

Illinois Supreme Court Amends Rules 8.4(j) and 5.1 Addressing Harassment and Discrimination

About a month and a half ago I reported that Illinois had finally adopted a version of Model Rule 8.4(g).  See here.  Illinois Lawyer Now has more on the story here.

Illinois adopts a version of Model Rule 8.4(g)

Back in November 2023 I reported that the Illinois Supreme Court Rules Committee held a meeting to discuss a number of proposals, including one to adopt a rule based on Model Rule 8.4(g).  You can read my comments about the hearing and the proposal here.

Yet, I had not seen anything about the proposal since then.  So, I was very surprised when I read in Faughnan on Ethics that the proposed amendment was officially adopted and that the new rule would go into effect in July.  See here.

I say I was surprised not because I was surprised to hear that the new rule was adopted but because I have not seen it reported anywhere here in Illinois! 

If you are a long time reader of this blog you know that I have criticized the Model Rule and the versions of the rule adopted in some other jurisdictions for being vulnerable to attack under First Amendment principles.  The adopted language in both the rule and its comment in Illinois is not as robust as the rule adopted in New York, but it is not bad. 

The original proposal included explicit language in the text of the rule itself stating that the rule would not apply to Constitutionally protected speech or conduct.  Unfortunately, that language was deleted from the rule and moved to the comment.  

Another issue with the adopted language is that while the text of the rule states that it is limited to conduct "in the practice of law", the explanation of what "in the practice of law" means included in the comment is the same used in the ABA Model Rule's comment to describe conduct "related to the practice of law" which is a broader concept.

We will have to wait and see how the rule is applied and interpreted, and whether it will get challenged as others have in other jurisdictions. 

The new Illinois Rule appears in Rule 8.4(j).  You can see a redline version here, and a clean version here.

The story you heard about a lawyer avoiding discipline because the state Supreme Court justices recused themselves is not what they are saying it is...

 The headline in Above the Law reads: "Convicted Lawyer Too Well-Connected To Face Discipline".  Elsewhere, the story was reported as "After most Illinois Supreme Court justices recuse themselves, Ed Burke keeps his law license".   The ABA Journal reported the story as "Convicted alderman keeps law license after recusals prevent state supreme court from acting."  You may have heard or or read something like that somewhere else, but the full story is not what it seems.

These headlines suggest that a convicted lawyer could not be disciplined even though he was convicted of a crime.  But that is not necessarily the case.  What happened is that the Disciplinary Agency asked the Supreme Court of the state for an interim suspension because he was convicted of a crime.  "Interim" means that the suspension would be in effect while the Agency decides the disciplinary case.  Some justices in the Court recused themselves and there were not enough justices left (following the state constitution) to grant the petition.

This does not mean that the lawyer will not be disciplined, or that he will avoid discipline.  The lawyer will avoid a suspension while it is decided whether he will be disciplined, but that is a different thing.  It may very well be that the disciplinary agency decides to impose discipline -- in fact, it is possible the agency will decide to disbar the lawyer.   

Now, what happens after that, I don't know.  If the disciplinary agency disbars the attorney, he then has the right to appeal to the state's supreme court.  If the same justices who recused themselves regarding the interim petition recuse themselves from the appeal, the court can't hear the appeal.  Does that end the case and the decision of the disciplinary agency stands?  That's my guess, but I have not looked into it.

Illinois Supreme Court Amends Rule to Add ‘Sexual Harassment Prevention’ to CLE Topic Areas

Two weeks ago, the Illinois Supreme Court amended a Supreme Court Rule to add “sexual harassment prevention” to the enumerated topic areas for which lawyers may receive professional responsibility CLE (PR CLE) hours.  The amended Rule 794(d)(1) now reads as follows:

Each attorney subject to these Rules shall complete a minimum of six of the total CLE hours for each two-year reporting period in the area of professionalism, civility, legal ethics, sexual harassment prevention, diversity and inclusion, or mental health and substance abuse.

2Civility has more details and commentary here.  LexBlog has the story here. 

How not to practice law: falsify evidence

 Here is another "how not to practice law" story.  The lessons from these stories always seem so obvious; yet here we are.  In this one, the hearing board found that the lawyer falsified some documents.  He was suspended for six months for violating Rule 8.4(c) regarding dishonesty.  The Legal Profession blog has the story here.

New Year's resolution for the legal profession

 The Chicago Bar Foundation has published a short article called "2024 Resolution for the Legal Profession: Back to the Future, With a Twist."  You can read it here.

Federal Court Dismisses Law Firm’s Suit Against DoNotPay for Unauthorized Law Practice - UPDATED

November 23, 2023

Long term readers of this blog will remember the saga of the company "Do Not Pay" which at one point claimed to provide the services of the first robot lawyer, but was later the subject of an investigation that exposed it did not live up to many of its claims.  Eventually, a law firm filed a class action claim against the company claiming that it was providing legal services in violation of the Illinois statute on the unauthorized practice of law.

If you want to refresh your memory on the details of the original story, and to review how we got to this point, go back and check out my posts from January 29, February 14, February 16, March 4, March 10, March 17 and October 21.

Today I am writing to report that, as the title of this post points out, the court in the case alleging unauthorized practice of law agreed with DoNotPay, holding that the plaintiff law firm had failed to establish standing because it had failed to allege that it has suffered any concrete injury.

For more details on the story and links to the court's order and more, go to LawSites, here.

UPDATE 12/1/23: The decision has generated some commentary.  Here are a few links

In Case of ‘Real Lawyers Against A Robot Lawyer,’ Federal Court Dismisses Law Firm’s Suit Against DoNotPay for Unauthorized Law Practice (Law Sites)

Judge tosses UPL suit against 'robot lawyer' DoNotPay, saying law firm plaintiff was not harmed (ABA Journal)

Did Illinois Hearing Board recommend a six month suspension for violation of Rule 8.4(d) because there is no other rule and this one seems to work as a "catch-all"?

 That's a long title above, but hear me out.  Last July, I reported on a complaint filed in Illinois against a lawyer for his conduct toward courthouse personnel.  The conduct included making inappropriate comments, and advances on female court employees, which could have been defined as harassment.   

However, because Illinois has not adopted a rule like Model Rule 8.4(g), and the current rule related to harassment is ineffective, the disciplinary agency did not really have a rule to support the complaint.  So they did what disciplinary agencies sometimes do when there is no specific rule: they looked for a generic catch-all provision to try to frame the complaint around it.  And they found it in Rule 8.4(d) which relates to conduct prejudicial to the administration of justice.  

In my original post, I argued that this section of the rule was not meant to apply to the conduct at issue in the case.  But, because the Illinois Supreme Court has made it clear that all disciplinary charges must be based on a specific rule, the disciplinary agency was in a bind.  

I recently reported and provided a link to a hearing on whether Illinois should to adopt a rule like Model Rule 8.4(g).  (Go here for my comment on the proposal before the hearing; go here for my report of the hearing.)  Adopting a good version of that rule would provide a rule that would allow for the imposition of discipline in a case like the one of the lawyer harassing court personnel.  

But opponents of such a rule, ironically, will point to the fact that the case was prosecuted under an existing rule as proof that a new rule on harassment is not needed.  

Which brings me to today's post.  The Illinois Hearing Board heard the case as argued under Illinois Rule 8.4(d) and recommended a six month suspension.  Here is the Board's report.

As I have discussed previously (see my posts linked above), the proposed new rule can be improved significantly but it would be more on-point than trying to stretch the reach of the definition of "prejudicial to the administration of justice."

So what do you think?  What is the better choice:  (1) to adopt a new rule (which should be an improved version of Model Rule 8.4(g)), or (2) to reject such a proposal and stretch the meaning of conduct prejudicial to the administration of justice to include pretty much anything a lawyer does that the disciplinary agency can claim affects any aspect of the practice of law?

Illinois Hearing on proposal to adopt a rule like Model Rule 8.4(g)

 Last week I reported that the Illinois Supreme Court Rules Committee was going to hold a meeting to discuss a number of proposals, including one to adopt a rule based on Model Rule 8.4(g).  I posted my comments on it here, and if you did not read that post, you probably should go there are read it before watching the hearing.  At the time, I had missed the deadline to participate but I expected others to do so, and I knew that at least the proponents of the proposal would present their position.

You should watch the hearing to reach your own conclusions, but here are my quick thoughts.  First, if you read my previous post you will remember that I am not a huge fan of the proposal but I can live with it because it clearly states in the comment that the rule does not regulate Constitutionally protected speech.  That is a key to me.  Today at the hearing I found out that the original proposal included that statement in the text of the rule itself, which I have argued is a better approach and, thus, would be my preference.  The rule recently adopted in New York, which I think is the best yet, takes that approach.  However, even though the original proposal in Illinois included that provision in the rule, somewhere along the line (apparently by the Rules Committee) it got moved to the comment.  Not great, but I can live with it.

Now, the hearing did not go as I expected.  I thought there would be more comments in favor of the rule.  Instead, the only person who spoke in favor of the rule was a representative of the Illinois Bar Association, which is the main sponsor of the proposal, so of course they would speak in favor of it.  Other than that, nothing.  

The speaker did a good job arguing in favor of adopting the rule and I found myself agreeing with most of it, except that she tried to argue that the rule does not reach as far as the Model Rule by making a distinction based on the fact that the Model Rule applies to conduct "related to" the practice of law, while the ISBA proposal applies to conduct "in" the practice of law.  That argument fell flat on its face and was totally unconvincing.  The explanation of how the phrase "in the practice of law" should be interpreted was exactly the same used by the ABA when referring to conduct "related to the practice of law."  If approved, the Illinois rule will have the same effect at the ABA Model Rule despite the difference in language.  If that is the intent, I wish they would simply leave it as "related to" to avoid confusion.  If that is not the intent, then they need to make the distinction clear.  

Thus, the proposal still has weaknesses, so the question is whether the weaknesses are enough to reject the proposal altogether.  As you watch the arguments consider which side you think has more support.  One thing I will note is that the speakers against the rule argued repeatedly that the rule would violate the Constitutional protections for free speech, but they did not address how that would be the case if the comment to the rule would explicitly state that rule should not be interpreted that way and that speech would be protected.  

As I said, the proposal has some weaknesses and some of the speakers who argued against its adoption exposed some of them.  

I was surprised that only one person spoke in favor of the rule.  Obviously, there were written comments submitted to the Committee, but every other speaker spoke against it.  Not one of them argued for changes to the proposal to make it more acceptable to them.  They were all or nothing.  The speakers who were opposed to the proposal saw nothing in it of value and all argued it should be rejected in its entirety.  Full stop.  And, just like it was during the commentary period for the ABA's Model Rule, it felt the opposition was a concerted effort by Christian organizations arguing that they should not be subject to discipline for discriminating based on their religious beliefs, that the proposal would violate the Constitution (even though the proposal explicitly states it should not be interpreted that way) and that the current rule is adequate.  (Although it is clear that it is "adequate" because it is actually inadequate at addressing the problem since it depends on the adjudication of claims by other government agencies, which does not happen often.)

I was also surprised that there was no attempt at compromise.  Speakers either wanted the full proposal rejected or adopted.  Nothing in between.  The only thing that came close, and with which I agree too, was a comment by the speaker for the ISBA who said they supported moving the statement about constitutionally protected speech back to the text of the rule.  Other than that, all I heard was either support for the proposal as is, or opposition to it in its entirety.  

Illinois to consider proposal to adopt a version of Model Rule 8.4(g)

November 8, 2023

The Illinois Supreme Court Rules Committee will hold a public hearing on November 15 to address public comments on five proposals, including a proposal to amend Illinois Rule of Professional Conduct 8.4 in order to largely adopt ABA Model Rule 8.4(g).  You can find the proposal here.  For more information on the hearing and the other proposals, go here.

Long time readers of this blog know that I have been following the saga of Model Rule 8.4(g) since back when it was just a proposal before the ABA and, since its adoption by the ABA, through the process of adoption and rejection by individual states. And, you might also recall, I am not a fan of the text of the Model Rule.  I have argued many times that it is vulnerable to an attack as violating the First Amendment to the US Constitution.  (To read my comments, go here and scroll through several pages of posts.)  

I have not checked recently what the current “box score” of adoption among jurisdictions is, but the last time I checked (in late 2022) the Model Rule had been adopted without changes in only one jurisdiction (Vermont) and with modifications in seven, while it had been rejected in eight states,   Two states have apparently abandoned proposals to adopt the Model Rule while three states and the District of Columbia are still considering adopting it.  

The most recent state to adopt a version of the Model Rule was New York, and the most recent one to specifically reject it was Idaho (see my post here). (And, by the way, I think the version adopted in New York is the best one yet. See my comment here.

But today’s post is about Illinois.

Illinois had a professional conduct rule on discrimination before the ABA adopted MR 8.4(g), and for that reason resisted adopting the Model Rule when it was first suggested.  You can find the, as of now, current Illinois rule (8.4(j)), here.  Yet, the effort to adopt the Model Rule did not abate and the Illinois State Bar Association (ISBA) continued to work on a proposal. 

That effort resulted in a formal proposal to amend the current rule and substitute it for a version of the ABA Model Rule.  The proposal is not as good as the version of the rule adopted in New York but it is better than the current rule and better than some of the versions adopted in other jurisdictions including the one adopted in Pennsylvania which was declared unconstitutional in a case later vacated for lack of standing.  [Note that, contrary to what has been reported elsewhere, the case vacating the lower court’s decision did not uphold the constitutionality of the rule; it merely held that the lawyer who brought the case did not have standing.  The court left the question on the constitutionality of the rule to a future day when a lawyer with standing would challenge it.  For my comment on this case go here.]  A case challenging the Constitutionality of the rule adopted in Connecticut is pending.

So, what are the highlights of the proposal in Illinois?

The current rule only considers misconduct conduct that has been adjudicated to violate a federal, state or local statute or ordinance that prohibits discrimination and only if that conduct is determined to reflect adversely on the lawyer’s fitness as a lawyer.  That makes the rule very limited in scope and available in very limited circumstances.  It also forces the disciplinary agencies to have to wait until the conduct is adjudicated as discrimination by other government agencies, which can take a long time, if it happens at all to begin with.

In contrast, the new proposal largely mirrors the scope and availability of Model Rule 8.4(g), which includes the fact that the rule would apply to conduct outside the practice of law, as long as it is related to the practice of law.  By comparison, other jurisdictions have limited the application of similar rules to conduct in the actual practice of law.  Obviously, if you think that the Model Rule is too expansive, then you won’t like the ISBA proposal either.  

The ISBA proposal also adopts the view expressed in the Model Rule that suggests that lawyers should be able to choose clients freely, presumably even if doing to looks like they are discriminating.  For example, presumably lawyers could, without violating the rule, offer to provide services only to women or to men, as some divorce firms do now.  

Unfortunately, the proposal (in its comment) continues to use the euphemism “verbal conduct” in an attempt to make an unworkable distinction with the concept of “speech,” but at least it also includes an explicit statement affirming that Constitutionally protected speech will be protected from prosecution under the rule.  

To me, this is the most important aspect of the whole proposal – and it bothers me that it is relegated to the comment rather than placed in the text of the rule itself.  But something is better than nothing, and it is an improvement over the ABA Model Rule which does not address the issue at all.  

Thus, the proposal states in a new suggested paragraph in the comment to the rule that “Conduct protected by the Constitutions of the United States or the State of Illinois, including a lawyer’s expression of views on matters of public concern in the context of teaching, public speaking, or other forms of public advocacy, does not violate this paragraph.”   

Aside from the fact that the reference to “this paragraph” is misleading (since it reads like it refers to the comment rather than to the rule), this is a key aspect of the proposal without which I would not support it. And for that reason, I think this statement should be part of the text of the rule itself, as it is in the recently adopted rule in New York.  

Also, oddly, if there was a place to use the phrase "verbal conduct" it would be here, but the drafters decided to simply say "conduct."  A better way to draft this statement would have been 

"Conduct or speech protected by the Constitutions of the United States or the State of Illinois does not violate the rule.  This includes, but is not limited to, a lawyer’s expression of views on matters of public concern in the context of teaching, public speaking, or other forms of public advocacy."

Finally, I noticed that the proposal (again, in the comment) includes the obligatory silly reference to the claim that “[t]he Rules of Professional Conduct are rules of reason, and whether conduct violates paragraph (j) must be judged in context and from an objectively reasonable perspective.”

Obviously, this is a well intended attempt to suggest that we should not worry about the rule because we can trust that regulators are not going to try to enforce it randomly or in violation of people’s rights.  As I have argued before, this is naive at best (see here) since history proves otherwise. But in this particular case it does not bother me as much since the suggested text in the comment makes it explicit that Constitutionally protected speech will continue to be protected.  (Again, I wish that statement had been placed in the text of the rule itself, but I guess I’ll get over it.)

So, all in all, the proposal is a good effort and I expect it will be approved.  I would make a few changes but I can live with it.  

Would this proposed new version of the rule make a difference?  How would it be used to regulate the practice of law?  I am not sure we know exactly how, but here is a quick example.  In a recent post I discussed a complaint filed against a lawyer charging him with a violation of Illinois Rule 8.4(d) which refers to conduct prejudicial to the administration of justice under circumstances in which I argued were "a stretch" because the conduct was more along the lines of the type of conduct a rule like Model Rule 8.4(g) seeks to address.  I suspect that the disciplinary agency charged the lawyer using Rule 8.4(d) because they did not feel there was another rule they could use.  If the new ISBA proposal is approved, they would have a new, and more adequate, rule to use in cases like those.  For my comment on that case go here.

UPDATE 11-15-23:  The hearing was held today and you can watch it below or, if you can't see the player, you can go here.  The discussion of the proposal starts at about the 29 minute mark.  There was only one speaker in favor of the proposal (a spokesperson for the proponent ISBA), and several speakers against it.  As it happened with the ABA proposal way back when it was discussing approving what later became MR 8.4(g), the opposition appeared to be a concerted effort by Christian groups that argued, essentially, that they should be allowed to discriminate based on their faith/values, and that to the extent that there was other objectionable discrimination going on, the current rule is enough to deal with the problem.  

Here is the video.  Remember that you can click on the square icon in the bottom right corner to resize the window to full screen.

Illinois doubles its compensation for lawyers appointed to represent indigent parties

Citing its commitment to improving access to justice for all and especially indigent parties, the Illinois Supreme Court announced last week an amendment to Supreme Court Rule 299 regarding compensation for attorneys appointed to represent indigent parties. Amended Rule 299 doubles compensation for an attorney appointed by a court to represent an indigent party to $150 per hour (from its previous minimum of $75 per hour) and $150 per hour for time reasonably expended out of court (from its previous minimum of $50 per hour).  More on the story here, here and here.

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.  

Illinois Supreme Court announces changes to rules on attorneys' fees

The Illinois Supreme Court recently announced amendments to Illinois Rules of Professional Conduct 1.5 and 1.15 to clarify the law related to retainers.  Unfortunately, the changes do not address the most important issue that needed to be addressed.

On the positive side, the amendments explicitly note that nonrefundable fees and nonrefundable retainers are prohibited, and “any agreement that purports to restrict a client’s right to terminate the representation or that unreasonably restricts a client’s right to obtain a refund of unearned or unreasonable fees is prohibited.”  This is a clarification that would be helpful in many other states where the issue is still confusing.

However, the amendments did not get rid of the notion of a "special purpose (or advance payment) retainer."  The concept originates in the Court's decision in Dowling v. Chicago Options Associates, a case that was wrongly decided and which, in the end, validated a scheme to use a law firm to hide assets from a creditor.  

A special purpose retainer is defined as a “present payment to the lawyer in exchange for the commitment to provide legal services in the future."  Note how that is exactly the same definition of a security retainer, so to distinguish them it is said that the special purpose retainer "may be used only when necessary to accomplish some purpose for the client that cannot be accomplished by using a security retainer” and that, unlike the security retainer, a special purpose retainer is "earned immediately."

Thus, the special purpose retainer is considered to be a fee that immediately becomes the property of the lawyer, whether the services are performed or not.  If that means that the retainer pays just for the commitment to perform the services, then how is it different than a classic retainer?  On the other hand, if it pays for the actual services, then it is nothing other than a fee paid in advance, which can't be earned immediately because they can't be earned until the work is done.  So, in the end, if the special purpose retainer pays for services not yet rendered but is earned immediately nonetheless, it is actually earned and not earned at the same time.  And, if that is the case, it does not matter where the lawyer deposits the money, the lawyer will be commingling.  And that is just two of the problems with it.

Years later, the Court was confronted with the consequences of that new type of retainer and had a chance to get rid of it, but instead decided to ban it in certain types of cases only.  See, In re Marriage of Earlywine (2013).  I wrote about that case back then here.

In considering the amendments recently announced it seems that the Court had yet another opportunity to fix its original mistake but again failed to do so.  

You can read more about the recently adopted changes here or here.  You can read more about my thoughts on fees that are earned and not earned at the same time here and here.

Do you need a reminder of your ethical duties when dealing with a client with diminished capacity?

If you need a reminder of your ethical duties when dealing with a client with diminished capacity, a recent post in Lex Blog has you covered.  You can read "Ethical Considerations for Lawyers When Responding to Clients With Cognitive Decline" by Laura Bagby by going here.

How not to practice law: lie to your client and to the court to try to get out of representing a client

 Here is another installment on the "how not to practice law" series...

In today's story, the lawyer lied to the client and the court claiming to be suffering from cancer in order to have the court agree to let the lawyer withdraw from representation.  

And for this the lawyer is now agreeing to getting disbarred.

Moral of the story:  don't lie.  And especially, don't lie to the court.  Simple.  

Illinois Supreme Court has adopted a new Code of Judicial Conduct

Last week, the Illinois Supreme Court adopted a new Code of Judicial Conduct which includes guidance on the use of social media and financial disclosures. The new Code will take effect on January 1, 2023.  You can access the text of the new Code here.  You can read more about here and here.

Something I wish people would stop saying about Model Rule 8.4(g) makes its way to the proposal in Illinois

A few years ago, when Model Rule 8.4(g) was proposed and was being debated everywhere, I thought I would write a short article I was planning to call “Three things I wish people would stop saying about Model Rule 8.4(g).” 

At the time, those three things were: “the rule does not cover speech,” “we don’t need to worry about the rule being overused because enforcing it requires proof of knowledge” and “we should not worry about it because the rules are rules of reason and regulators are not going to try to enforce them randomly or in violation of people’s rights.”

I never got around to writing the article, but I am happy that it eventually became clear that two of these statements were wrong and most people stopped repeating them.  The rule is based on a negligence standard (not knowledge) and it does apply to speech.  In fact, the Pennsylvania version of the rule was declared unconstitutional because it was found to violate the First Amendment (as the Model Rule itself probably would be too.)   (See here, here and here).

But that is not why I am writing about this today.  I am writing because the third statement I wish people would stop repeating persists, and according to one comment I read recently, it is part of a proposal for a new rule in Illinios.

According to Faughnan on Ethics, 

“[t]he Illinois State Bar Assembly has now approved a version to be sent to the Illinois Supreme Court for (hopefully) adoption that hews closely to the ABA Model Rule in a number of ways. This action by the ISBA is a reversal of their prior decision in 2017 to reject the rule. The proposed Illinois RPC 8.4(j) would, like the ABA version, apply to all contexts “in the practice of law,” including things such as bar activities and social events. The Illinois proposal would also highlight through language in comments the notion that this rule, like all other ethics rules, is still a rule of reason requiring a reasonable construction. The Illinois proposal says out loud what is just implicit as to the ABA Model: “The Rules of Professional Conduct are rules of reason, and whether conduct violates paragraph (j) must be judged in context and from an objectively reasonable perspective.”” 

I will leave aside the fact that Illinois already has a rule that regulates discrimination and harassment so my comment is only on this notion that the rules are rules of reason which then leads to the conclusion that we should not worry about the possible unconstitutionality of the rule because we should trust those in charge of applying it will always do the right thing.  

I wish people would stop saying this!  Not only is it a way to give up on the challenge to draft a rule that would survive a constitutional attack, which implies we are willing to live with a questionable rule, but it is also naive and dangerous.  Constitutional protections exist to protect individuals from abuses by the government.  You are telling me now we are willing to give up on our protections because we are confident the government will not abuse the rules it creates to regulate us?

How many opinions and examples of abuse do we need to realize this is naive, at best.  Lawyers have been disciplined for engaging in Constitutionally protected conduct and speech before (see here and here, for example) and basing decisions on deference to the "reasonable perspective" of the regulators will inevitably result in more discipline for protected conduct that some find objectionable or offensive.

Now some might want to say that the conduct of those lawyers was reprehensible or offensive and that they should be disciplined for it.  Ok, you can take that position but if you do, please recognize that you are saying that it is fine with you if the government is allowed to impose discipline for constitutionally protected conduct and speech.*

And this leads me to a fourth thing that I wish people would stop saying and that is that anyone who criticizes Model Rule 8.4(g), or its state equivalents, must be in favor of discrimination.  This is a sign that the person making the statement has run out of arguments and the only thing left is to issue a personal attack.  

Stop it!  Criticizing the rule does not mean that one is in favor of allowing discriminatory conduct to continue. It means that one would prefer to see the regulation of that conduct be done properly.  There is plenty of serious literature about why this is important and about how it might be possible but requires more work. If you are interested in the debate related to Model Rule 8.4(g) and the First Amendment, take a look at the articles by Margaret Tarkington, William Hodes, and Bruce Green and Rebecca Roiphe in Volume 50 of the Hofstra Law Review, available here.  (Go download the articles now even if you don't have time to read them because they may not be available at this link for long.)  

For all my previous posts on the debates about Model Rule 8.4(g) and other related developments go here and scroll down.

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*Another reason I am concerned about this type of reasoning is because it has implications for other aspects of our lives.  As I am sure you are aware, there are statutes around the country now that seek to regulate how history is taught in our schools, and a recent US Supreme Court decision opened the door to religion in public schools (as long as it is the religion that the Court approves of, of course).  Soon teachers like me may not be allowed to teach issues related to race and the law, and so on. I can't say that the government is not going to abuse its view of what it finds offensive and use that view to impose discipline on those who want to explore other views.   If we leave it to those who are in charge of applying the rules to define what is "officially" offensive, history teaches us that, at least, the rules will be overused to impose their view of what is offensive.