The state of the State
Who's watching the lawyers?
By F. MARK SIEBERT
"Remember, ARDC hearings are now public." The admonition heads an ad for an attorney partnership that specializes in representing lawyers before the Attorney Registration and Disciplinary Commission (ARDC), the agency responsible for investigating charges of attorney malpractice in Illinois. The partners are specialists, with experience on ARDC inquiry and hearing boards as well as in positions with the Illinois Department of Professional Regulation.
Attorneys generally subscribe to the high ideals of their profession, but they must also make a living. These specialists must think that there is a market for their expertise. They are not alone: The Chicago Bar Association has formed an ARDC Lawyer Referral Panel, consisting of two dozen attorneys with special training in ARDC disciplinary procedures.
Does this mean greater activity in disciplining attorneys? The annual reports to the Illinois Supreme Court by the ARDC and a running survey of stories in the lawyers' trade journal, the Chicago Daily Law Bulletin, suggest a spurt of activity over the last two years. The question remains: What, if any, were the results?
After Greylord, the federal sting operation that revealed and prosecuted widespread corruption in the Cook County courts, there seems to have been agreement within the Illinois legal community that it was time to pull its sox up. The Illinois Supreme Court had a blue-ribbon committee report on the functions and operations of the ARDC. One visible and official result was the revision of Supreme Court rules on attorney discipline that took effect August 1, 1989. These opened the process to the public once a formal charge had been brought against an attorney, and they added lay members to the hearing bodies. Lay participation encountered strong resistance in the legal community but prevailed. was intended to introduce public scrutiny into what, it was thought, the public perceived as an inbred, self-protective structure.
There has been a discernible surface effect. In 1989 the number charges against attorneys investigated by the ARDC jumped 17 percent over 1988, and in 1990 it went up another 11 percent to 6,469. Reports of the more spectacular cases began to appear in the press while reports of charges against attorney have appeared regularly in the Law Bulletin. Before the rules changes, news reports had been impossible since the ARDC's complex hearing process was confidential up to the point of official punishment imposed by the state Supreme Court.
At first glance it might appear that the process has become tougher since the number of disbarments jumped from 32 in 1988
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to 60 in 1989. The higher figure, however, includes 23 cases that resulted from Greylord; in these the effort within the state court system cannot be seen as the primary
source. In 1990 the number of disbarments was back to 33. Other sanctions were also static: 55 suspensions in 1988, 48 in 1989 aid 46 in 1990; 55 lawyers censured in 1988, and 18 each in 1989 and 1990; no probations in 1988, 6 in 1989 and 2 in 1990.
It is necessary to dig a bit deeper to find signs of greater vigor in policing the legal profession. In September 1988 the Illinois Supreme Court told lawyers that they would be punished if they did not report misconduct by colleagues (In re Himmel; see Illinois Issues, December 1988, page 26), Despite a strong outcry against this snitching requirement, 1,350 lawyers filed complaints about possible misconduct by other lawyers in the 20 months following the decision. Before that no one was counting.
In 1990 lawyers began to blow the whistle on themselves. It was the first full year in which Supreme Court Rule 762 was in effect. This rule allows lawyers accused of serious misconduct to apply for voluntary disbarment (not automatically granted) or, on charges of lesser gravity, to come to an agreement ("by consent") with the ARDC administrator on an appropriate penalty. In the latter case they file a joint petition with the Supreme Court; it's a specialized version of plea bargaining. Twenty-nine disbarments were allowed, and 23 other sanctions were agreed.
A random sampling of the Illinois Supreme Court's opinions on disciplinary cases that finally reached it (and disciplinary cases made up 30 percent of its workload in 1990) shows that the sanction imposed is frequently the more stringent of those recommended via the the ARDC's hearing process (since the hearing panel and review board sometimes disagree on the severity of the recommended penalty). Indeed, a press report of one case quoted the defendant's attorney as saying that the court seemed to be getting tougher. The same might be said for the ARDC: Last year it recommended two-year suspensions for two downstate attorneys (brothers) for alleged misconduct that occurred 18 years earlier.
Another aspect of the state court system's efforts was an attempt to revive flagging public confidence in the legal profession. This was one reason for the inclusion of public members on the disciplinary panels. In 1989 the ARDC took another step to build confidence: explaining its reasons for closing a complaint. The ARDC closes a large number of complaints after a preliminary investigation by the commission staff. Previously the complaining member of the public had simply received a generalized reason for the action. Under the new plan the complainant receives a letter written by an ARDC staff member detailing the reasons for closing the complaint.
The incidence of various categories of alleged misconduct for 1990 is interesting: neglect (failure to pursue the client's interests) — 1,394; dishonesty or fraud — 804; failure to communicate with clients — 702; improper handling of funds of others — 588. While lawyers are reported to be in oversupply nationally and many firms are cutting staff, lawyer shortcomings in Illinois appear to stem from overwork more often than from outright rascality.
The Illinois Constitution vests supervision of the court system, and thereby of attorneys as officers of the court, in the Illinois Supreme Court (Art. VI, sec. 16). The court, in turn, created the ARDC as its administrative and disciplinary mechanism (see Illinois Revised Statutes 1989, ch. 110A, R 751 et seq.). Perceived shortcomings of the legal system and a failure of public confidence led to the highly bally-hooed reforms in 1989. The number of charges against attorneys has increased over the years, perhaps because of greater confidence, perhaps because of increased litigiousness in the population. The number of sanctions, however, has remained level. Was 1989 a subterfuge, a miscalculation or window-dressing?
Interestingly, these statistics appear in the ARDC's annual reports to the Supreme Court, required under Rule 751(e)(7). Our search for a copy of the report revealed that neither the Supreme Court Library nor the Supreme Court clerk's office had a copy. Heard any good lawyer jokes recently?
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