The Continuing Agony of Ethics Requirements
December 2006
by David Heilmann
First published in Chicago Lawyer, Volume 29, No.12
So we're sailing along just fine for years and then the news hits. Those dreaded three little letters. CLE. Continuing legal eduction. The collective laugh could be heard coming in from the Indiana border like a smelly wave out of the Cal Sag.
Hoosier lawyers for years have been whining about those CLE requirements. We, of course, laughed, knowing that Illinois lawyers are smarter and don't need to learn any more law. Brains are full. We know enough.
Apparently not.
Just when we thought we were done with Bob Thomas's missed kicks, he saved his last one for our heads. And didn't miss wide right.
So we begrudgingly read the requirements. "Twenty hours in the first two years. Twenty hours? Who came up with 20? Why not three? Make it like an elective."
Twenty. That's the number and it's non-negotiable. And the people called on first in class, those with the names ending in letters beginning with A-M, you have two years from last July 1 to drop and give them 20.
Reading on. "Okay, I can write for credit, I can go to a seminar online. Online means 'don't watch,' right? . . . got it . . .not too bad. . . got it. . . and . . . hey, wait a second, wait a second. Ethics?! Why the heck do I have to take another ethics course? I took it when I passed the bar and now I need another 2 hours of that every year? Ethics? Who came up with that, those people at the ARDC?"
ARDC. Why do I have the feeling that they're the little kids with skinny heads from third grade that told on everyone? Just kidding. The 157 time they investigated me I always found them to be polite. (Still clean, actually.)
So why, why, after years of practice, do we need to re-read the Rules of Professional Responsibility? We know the rules -- don't commingle funds, don't over bill, yeah yeah yeah.
It's not that simple. You see, there are those situations all around us that do not necessarily involve our relationships with clients, but still could cost us our license. Check out Rule 8.4, which deals with misconduct.
Maybe we don't think of that lawyer we know who has a drinking problem, or the young guy who smokes a little pot, or the woman who got the DUI, or the sexually inappropriate comment or email as threatening a law license. But it can.
The possession and use of illegal drugs, coupled with the repeated instances of it (because, unlike Clinton, some who use it are repeaters), could get you disbarred. The Supreme Court has held that any possession of an illegal substance, regardless of how small or whether it was only one time, constitutes ethical misconduct. In re Scarnavah, 108 Il, 2d 456, 485 N.E. 2d 1 (1985).
DUI? That may be just a mistake, but in Re: Dempsey, 94 CH 454, the attorney engaged in misconduct based upon his plea of guilty of driving under the influence of alcohol and driving without valid insurance.
"Respondent's DUI conviction demonstrates his disrespect for the laws of this State and adversely reflects upon his fitness as a lawyer. Furthermore, criminal conduct by an attorney diminishes the public's confidence in the entire legal profession and -- tends to bring the legal profession into disrepute." (Hearing board report, May, 26, 1995.)
Then there are the inappropriate sexual comments or unwelcomed advances by attorneys at the office. Can't do it. It's 2006 and if people don't understand this by now, they should be disciplined for the conduct itself and then given a penalty for stupidity. In In re Fishman (2004), a partner was basically hitting on ("non-consensual contacts with") a female associate. The Hearing Board report stated that he "abused his superior position of authority," that his conduct was for "his own personal gratification," and he degraded and humiliated the associate by forcing her through a civil trial and disciplinary hearing. (Hearing Board Report at 25-26.) He was suspended for one year.
There are many examples across the country in the category. Maybe you've even seen it at your office. What should give many lawyers pause is the potential responsibility for another lawyer's conduct.
Rule 5.1 sets forth the responsibilities of a supervising lawyer, with includes 5.1 (b), stating that supervising lawyers "shall make reasonable efforts to ensure that the other lawyer's conduct conforms to these Rules." "Shall" and "ensure" -- two pretty strong words there. Again, it's worth checking out, at a minimum.
This isn't to suggest that if someone else in the firm engages in criminal conduct, suddenly his supervising attorney's license is at risk. But the opposite, that we cannot have any responsibility for another lawyer's conduct, is also not true. And because of this and the gravity of the risk -- our livelihoods --it's worth another look at the rules.
Upon further review, the kick was good.
