“Inquiry,” Naotake Murayama, licensed under CC-BY-SA-2.0
by Jim Doppke
Because many ARDC procedures are subject to the confidentiality requirements of Supreme Court Rule 766, the structures that support those procedures often seem opaque. Many Illinois lawyers don’t know exactly how a confidential investigation becomes a formal, and public, disciplinary complaint. This post will examine the body that authorizes the filing of formal cases: the Inquiry Board.
Like a Grand Jury
Supreme Court Rule 753(a), which authorizes the creation of the Inquiry Board, provides that “[t]he Board shall inquire into and investigate matters referred to it by the Administrator,” and that it “may also initiate investigations on its own motion and may refer matters to the Administrator for investigation.” The latter language refers more to procedures that existed in prior eras, rather than to those that exist today. The Inquiry Board, as it has operated over the last 20 years, typically receives referrals from the Administrator, rather than initiating them.
What does the Inquiry Board do when it receives a referral? I often describe the Inquiry Board as functioning like a grand jury within the disciplinary system, because the aims of the two bodies are the same: meeting on a semiregular basis, hearing the facts of cases that may give rise to charges, and determining whether charges should be filed. Or, in the words of Rule 753(a)(3): “After investigation and consideration, the Board shall dispose of matters before it by voting to…close an investigation, to file a complaint with the Hearing Board, or to institute unauthorized practice of law proceedings.” (The Rule also says that an Inquiry Panel can “dismiss” a “charge,” but that, I think, is also a holdover from earlier procedures.)
This is not meant to be an evidentiary process, and proceedings before the Board are not conducted as evidentiary procedures. When I say the Board “hears” the facts of the case, I do not mean that it conducts a “hearing” in the same way that the Hearing Board does. Rather, three-member panels of the Board (consisting of two lawyers and one public member) meet to consider investigations that the Administrator has referred, and the panels converse with counsel for the Administrator prior to voting on whether the matter should be filed as a public complaint.
To Appear or Not to Appear
Isn’t there another side? Yes, but not one that has an automatic right to be present at an Inquiry Panel meeting. Commission Rule 55, which governs the reference of matters to the Inquiry Board, provides that when the Administrator notifies the respondent attorney of the reference to Inquiry:
The notice shall state the date upon which the Inquiry Board is scheduled to consider the matter, shall state that a complaint may be voted or unauthorized practice of law proceedings may be authorized, and shall include information as to how the respondent may request an appearance before the Inquiry Board. In any matter as to which the respondent has not previously been afforded an opportunity to respond, the notice shall include information as to how a response may be submitted, and in cases where the respondent has previously been afforded an opportunity to respond, the notice shall contain information as to how the respondent can submit any additional information to be considered by the Inquiry Board.
Thus, if the respondent wishes to appear before the Board, she must request the opportunity to do so. The Board may allow that request or disallow it, at its discretion.
Should respondents seek to appear before Inquiry Panels? Many want to – and the impulse to want to explain, to persuade a decisionmaker, is both strong and understandable. But the question warrants careful consideration. Rule 55 does not describe what an appearance really is: a sworn statement in which questions can be asked by counsel for the Administrator and by members of the Panel. Often, by the time the referral happens, counsel for the Administrator has already taken the respondent’s sworn statement outside the presence of the Panel, and has submitted the transcript of the statement to the Panel for its review as part of the referral. There is therefore usually little need for a second, very similar statement, and the Panels often realize that and deny the request for an appearance. The respondent may not want to give another sworn statement in any event, as doing so can create a complicated record if the matter does proceed to hearing.
It can be a hard pill to swallow, but the best course may often be to let the matter be referred without a request for an appearance, and to trust that the Panel will give fair consideration to the responsive materials that the respondent submitted previously.
If the Panel votes to authorize the filing of the complaint, then that terminates the proceedings before the Inquiry Board, and the complaint is filed before the Hearing Board of the Commission. The Inquiry Board can, however, dispose of investigations in other ways: it can authorize a deferred prosecution pursuant to Commission Rule 108, or it can close the investigation, either outright or “with caution.”
You will not find a reference to “closure with caution” in any Supreme Court or Commission rule. But Inquiry Panels use it as a means of closing an investigation while still expressing some concern regarding what the respondent-attorney did to require the attention of the Administrator and the Inquiry Board. The Board expresses that concern through a letter from counsel for the Administrator to the respondent, indicating that no formal action is being taken but that the respondent should, in the future, conform her conduct more carefully to the Rules of Professional Conduct, or language to that effect.
The “closure with caution” letter may reflect views of the facts of the matter with which the lawyer disagrees. But the letter remains a favorable result, because the closure of an investigation by an Inquiry Panel – “with caution” or not – is the same result as a closure by the Administrator without reference to the Inquiry Board. The Administrator retains the file materials relating to the investigation for three years, after which those materials are expunged; and crucially, the matter remains confidential. By the time an investigation is referred to Inquiry, the risk of it becoming a public disciplinary matter can be acute, and it can feel even more so. A closure with caution ends the process before the difficulties of formal discipline arise.
Inquiry Board proceedings, while not public, represent a serious and important phase of the disciplinary process. Lawyers facing those proceedings should consider seeking counsel at the first mention of a referral of an investigation to the Board, so that the risks can best be navigated.
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