New Rules of Professional Conduct « Illinois Lawyer Now

New Rules of Professional Conduct

Rules of Professional Conduct amended

Today the Supreme Court of Illinois amended Rule 1.15 and 3.9 of the Illinois Rules of Professional Conduct. Both changes are effective Jan. 1, 2010.

Rule 1.15 is amended to change the definition of “safe harbor,” which is a yield that if paid by the financial institution on IOLTA accounts is deemed as a comparable return in compliance with this Rule. It now provides that the yield may be calculated as 70% of the Federal Funds Target Rate on the first business day of the calendar month “or 1%, whichever is higher.” (New text in quotation marks.)

The second change deletes the recent incorporation of Rule 3.5 (ex parte prohibitions) into Rule 3.9, which regulates advocates in nonadjudicative proceedings. It clarifies that Rule 3.9 applies only when a lawyer represents a client in an official hearing or meeting of a governmental agency or legislative body to which the lawyer or the lawyer’s client is presenting evidence or argument. It does not apply to representation of a client in otherwise permitted lobbying activities.

Family law, confidentiality, and the new Rules of Professional Conduct

It’s slowly but surely sinking in that new ethics rules take effect January 1. (It is sinking in, yes? January 1 is a few short weeks away.) And Illinois lawyers are starting to look closely from the vantage of their particular practice areas at the new RPC, speculating about what impact they might have on the most common, or perhaps most nettlesome, ethical issues they face as divorce lawyers or real estate lawyers or what have you.

In that spirit, Marilyn F. Longwell has written a helpful article for the latest ISBA Family Law newsletter about how the new rules are likely to affect family lawyers and the special confidentiality issues they face. (“The first time my client related to her husband my advice on tactics in a custody dispute, I realized I was in uncharted territory,” she wryly observes.)

It’s a meaty article with lots of good advice drawn from cases and the language of the rules. Here’s a small sampling from her conclusion. “Refrain from being complicit in crimes or fraud perpetrated by your clients, report information where reasonably certain death or serious injury is likely to occur, but err on the side of confidentiality every time. Being on the ‘cutting edge’ of the law is fine in some circumstances, but in areas of client confidentiality it rarely pays.” Read the rest here.

New Rules of Professional Conduct and lobbying

Last week the Supreme Court of Illinois issued new Illinois Rules of Professional Conduct to take effect Jan. 1, 2010. New Rule 3.9 has created quite a buzz among the lawyer-lobbyists as to what it means. It may have broader applicability than those of us who lobby in Springfield to include appearances before other governmental bodies.

The Rule states that “A lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5.”

The incorporation of Rule 3.5 creates the buzz. Rule 3.5 prohibits ex parte communication with an official during the proceeding. Can this be construed to prohibit all lobbying by a lawyer-lobbyist unless it is part of a scheduled public hearing? In other words, is all I can do to lobby is testify in committee? No position papers to elected members of the General Assembly? No one-on-one individual lobbying?

I can’t imagine that was the intent. Rule 3.5’s title is “Impartiality and Decorum of the Tribunal.” Key word is “tribunal.” It is defined in Rule 1.0(m) as follows:

“Tribunal” denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party’s interests in a particular matter.

Rule 3.5(b) supports this lack of intent as well: “A lawyer shall not communicate with such a person during the proceeding unless authorized to do so by law or court order;”.

Do lawyer-lobbyists register under the Lobbyist Registration Act and therefore are authorized under law to lobby?

I don’t think lobbying members of the General Assembly is covered by this Rule.

ISBA General Counsel Charles Northrup on the New Rules for Lawyers

Illinois State Bar Association General Counsel Charles Northrup highlights two of what he thinks are the most important changes from today’s Illinois Supreme Court adoption of the New Rules of Professional Conduct for Lawyers:

“One of the most significant, if not the most significant, aspect of the adopted Rules is that they contain official comments. The comments give attorneys a readily accessible interpretation and explanation of the intent of the Rules. It will be an additional and important guide for lawyers when they are determining what their ethical obligations are.”
“Another important aspect of the new Rules is the treatment of the Dowling case and the issue of flat or fixed fees. Many practioners were concerned about the treatment of these types of fees under Dowling and whether they fell within the definition of ‘advanced payment retainers.’ The new Rules clarify that flat or fixed fees are not advanced payment retainers, a position that was advocated by the ISBA.”

More highlights from the Supreme Court’s New Rules of Professional Conduct for Lawyers

Announcement for the New Rules of Professional Conduct

Highlights from the New Rules of Professional Conduct

A press release from the Illinois Supreme Court highlights some of the most important changes wrought by the new Illinois Rules of Professional Conduct. For example, the new rules “clarif[y] the earlier law and eliminate certain restrictions on the reasons for sale” of a law practice, “prohibit a lawyer from having sexual relations with a client unless a prior sexual relationship existed,” and “[f]or the first time … explicitly govern electronic [lawyer advertising] communications such as e-mail and websites.”

Here are the full highlights from the Illinois Supreme Court:

1. New Rules
The Supreme Court of Illinois has adopted a number of ethics rules that have not appeared in any previously enacted conduct code. The new rules include, but are not limited to, the following:

a) New Rule 1.18. Describes important duties that lawyers owe to a prospective client arising from preliminary discussions before the creation of a formal lawyer-client relationship;
b) New Rule 2.4. Defines the duties of a lawyer who serves as a third-party neutral, such as a mediator or arbitrator;
c) New Rule 3.9. Articulates the duties of an advocate in a nonadjudicative proceeding, such as before a legislative body or an administrative agency;
d) New Rule 4.4(b). Addresses how a lawyer should respond when the lawyer receives a document that was inadvertently submitted to the lawyer;

2. Comments to the New Rules
The new ethics rules contain comments that attempt to explain the rules, refer to court decisions relating to the rules and assist the lawyer in complying with the rules. The rules are authoritative; the comments serve as a guide.

New Illinois Rules of Professional Conduct take effect January 1, 2010

Big, big news: the Illinois Supreme Court just announced new Illinois Rules of Professional Conduct that take effect next January. This is huge, and we’ll have analysis for you as soon as we can pull it together, and for weeks — and months and probably years — to come.

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