by Jim Doppke
|No. 6: What do you want?
No. 2: Information.
No. 6: Whose side are you on?
No. 2: That would be telling. We want information…information… information!!!
No. 6: You won’t get it!
– Opening Sequence, The Prisoner
Supreme Court Rule 766 provides that several phases and kinds of Illinois disciplinary proceedings “shall be private and confidential” – including the approximately 5,200 investigations the Administrator initiates per year. Seems simple enough: the investigations are confidential, and the formal charges are public. But how does it work in practice?
ARDC investigations can become, among other things, warehouses of information. The initial request for information can reveal to the lawyer what a client or former client thinks about something that happened during a representation, often in the client’s own words. When the request comes in the form of a (putative) Himmel report from another lawyer, the respondent-attorney can glean the outlines of the reporting lawyer’s dispute – and perhaps their motivations, tactics, and strategies.
Rule 766 means that only the respondent-attorney, the complainant, and the Administrator’s staff should be seeing and reading the investigatory materials, including the initial request, the respondent-attorney’s response, and any reply from the complainant.
But who is bound by Rule 766? Who must keep investigations, and the materials they generate, private and confidential? The Rule is silent on that point, but the way it has worked out in practice shows the common-sense answer: the Administrator and his staff are the parties bound by the Rule. They must ensure the confidentiality of all matters mentioned in the Rule.
They do that in large part by declining to answer any inquiries about the status of investigations from the public. An attorney-respondent can rely on the Administrator’s longstanding procedures ensuring that that information is not disclosed.
But what if there is litigation pending that involves the parties or matters who are the subjects of the investigation? Parties in litigation are always intent on obtaining useful information from any source. ARDC investigations can become targets for formal or informal requests for the information in those metaphorical warehouses. Complainants who are motivated to acquire information about respondent-attorneys can seek that information from the ARDC – especially by requesting a copy of the attorney’s response to their request for information.
Typically, the complainant receives a copy of the response as a matter of course. Certain complainants may intend to use the ARDC as the informal discovery clearinghouse it isn’t intended to be. They may have little regard for the spirit of Rule 766 and its mandate that investigations (and some other proceedings) remain confidential. The Administrator may not know of or realize the risks of releasing otherwise confidential information to a complainant. Complainants thus can, and sometimes do, provide “confidential” ARDC material to courts and others, to their own ends.
Can the respondent-attorney control any of the risk in these situations? She or her counsel can and should alert the Administrator to the existence of pending litigation involving the complainant, and they should request that the Administrator not provide copies of responsive materials to the complainant. The Administrator will strongly consider that request, and will often honor it. If there is a specific reason not to honor it, the Administrator’s staff will discuss that with the respondent or their counsel. In practice, making that request is the most effective method for ensuring that sensitive materials do not end up in the wrong hands.
A more solid and lasting solution would be an amendment to Rule 766 that clarifies the obligations of the respective parties involved in ARDC investigations. The most crucial step would be to impose an obligation on a complainant, their lawyers or representatives, or any third parties, not to use copies of materials received from the Administrator in the course of a confidential investigation in any matter pending before any tribunal.
Some questions remain about how such a provision would be implemented and enforced. But it is an important topic of discussion. Disclosure of the existence of an investigation, or of any information derived from it, can have powerfully negative and unfair effects. Many of those effects can’t be predicted or expected, increasing risk not just for the respondent-attorney, but all parties involved. Using the discipline system to produce those effects undermines the true mission of the system. More protective measures may be needed to ensure that that does not happen.
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