Law Practice Management and Technology MCLE Meeting DuPage Judicial Center - ARC September 24, 2019 11:45 AM – 12:00 PM Welcome/Introductions Tony Abear – Law Practice Management Section Chair 12:00 PM – 1:00 PM Program Navigating Professional Responsibility and the ARDC Stephanie Stewart, Robinson, Stewart, Montgomery & Doppke, LLP and Melissa Smart, Illinois ARDC See attached for bios. Presentation Summary This presentation will provide an insider’s view of the ARDC and professional responsibility issues from the perspective of both an ARDC prosecutor and an ARDC defense attorney. Ms. Stewart and Ms. Smart will provide an overview of the ARDC and discuss statistics relating to ARDC investigations and disciplinary prosecutions. The presenters will talk about the ethics issues that are most likely to result in an ARDC grievance and what steps lawyers can take to minimize the likelihood that a client will file a grievance against them. The presenters will also address how to respond to an ARDC grievance and how to make it less likely that the grievance will result in a formal prosecution. Examples of actual ARDC cases will be referenced throughout the presentation.
Transcript
Law Practice Management and Technology
MCLE Meeting
DuPage Judicial Center - ARC
September 24, 2019
11:45 AM – 12:00 PM Welcome/Introductions
Tony Abear – Law Practice Management Section Chair
12:00 PM – 1:00 PM Program
Navigating Professional Responsibility and the ARDC
This presentation will provide an insider’s view of the ARDC and
professional responsibility issues from the perspective of both an
ARDC prosecutor and an ARDC defense attorney. Ms. Stewart and
Ms. Smart will provide an overview of the ARDC and discuss
statistics relating to ARDC investigations and disciplinary
prosecutions. The presenters will talk about the ethics issues that are
most likely to result in an ARDC grievance and what steps lawyers
can take to minimize the likelihood that a client will file a grievance
against them. The presenters will also address how to respond to an
ARDC grievance and how to make it less likely that the grievance
will result in a formal prosecution. Examples of actual ARDC cases
will be referenced throughout the presentation.
Next Meeting: TBD
DCBA Events: October 11th – Mentoring Program Orientation – ARC
October 17th – DCBA Unwind – Il Sogno Ristorante, Wheaton
November 15th & 16th – GAL Training – 421 Building - Auditorium
Earn CLE Online!
DCBA OnDemand CLE is Now Powered by IICLE The Illinois Institute for Continuing Legal
Education (IICLE®) and the DuPage County Bar Association (DCBA) are excited to offer a new
IICLE®Share collaboration to provide DCBA members a high quality and reliable online
learning experience. Members can find the link to The Illinois Institute for Continuing Legal
Education (IICLE) on the DCBA website under “Legal Community”→OnDemand CLE →Online
CLE Catalog
View & Print All CLE Certificates through the DCBA Website:
Manage Profile -> Professional Development (under content & features) and choose the icon to
the left of each meeting to print your certificate directly or choose to have them emailed to you
to save to your computer (you MUST be logged in to view this feature)
Melissa A. Smart Illinois ARDC
Melissa A. Smart is Litigation Group Manager and Senior Counsel at the Illinois Attorney
Registration and Disciplinary Commission of the Supreme Court of Illinois (ARDC) where she
supervises a group of litigation attorneys and staff, investigates charges of lawyer misconduct
and prosecutes disciplinary cases. Ms. Smart obtained her B.A. in Liberal Arts and Sciences
from the University of Illinois at Urbana-Champaign. She received her law degree from The
John Marshall Law School, graduating cum laude. Ms. Smart began working at the ARDC as a
law clerk in 1997 and became Counsel for the Administrator in 1999. As a member of the
Commission’s staff for over fifteen years, she has investigated thousands of charges of
professional misconduct and has been responsible for over 100 different formal disciplinary
proceedings filed in the Supreme Court of Illinois or before various Commission Boards. She
has tried dozens of matters before the Commission Hearing Board.
Ms. Smart is past Chair of the YLS Professional Responsibility Committee of the Chicago Bar
Association and currently serves on the Illinois State Bar Association Standing Committee on
the Attorney Registration and Disciplinary Commission. She has lectured and presented
workshops regarding professional responsibility and disciplinary law to numerous bar
association groups, government agencies, law firms, private organizations and law schools.
She has appeared as a guest on various radio programs to discuss her knowledge of the Rules
of Professional Conduct and issues related to professional responsibility. She has been
selected to work on pilot programs for the Illinois Supreme Court Commission on
Professionalism, which have developed model courses on professional responsibility and CLE
course facilitation. She was named a Member of the Joint Illinois State Bar Association/Chicago
Bar Association Special Committee on Ethics 2000 which reviewed existing Illinois ethics
guidelines and suggested changes to the Illinois Supreme Court, which formed the basis for the
New 2010 Illinois Rules of Professional Conduct. Ms. Smart is the Eastern Regional Reporter
for the National Organization of Bar Counsel Current Developments Project. In that capacity,
she summarizes professional responsibility statutory changes and case law throughout the
Eastern Region of the United States and analyzes and summarizes developments and trends at
national conferences held twice a year. Ms. Smart was also recently appointed to serve as a
member of the Ad Hoc Committee of the National Organization of Bar Counsel to review and
make recommendations regarding the Report from the National Task Force on Lawyer Well-
Being.
Recognized by her peers as a "Super Lawyer" and/or “Leading Lawyer” in the area of professional liability for every year since 2007, Stephanie has successfully represented hundreds of lawyers and other professionals before the ARDC, the Illinois Department of Professional and Financial Regulation (IDFPR), the Illinois Board of Admissions to the Bar, the Judicial Inquiry Board, and in state and federal civil litigation matters.
After graduating from Northwestern University Pritzker School of Law, Stephanie served as a prosecutor at the Illinois Attorney Registration and Disciplinary Commission (“ARDC”) where she investigated and litigated hundreds of attorney disciplinary cases. In 1999, she was promoted to Senior Counsel to the Administrator of the ARDC, a position she held until leaving the ARDC for private practice in 2002.
Stephanie’s practice largely concentrates on representing attorneys at all levels of investigation and prosecution by the ARDC. Ms. Stewart is committed to providing highly-skilled representation before the ARDC (based on over 20 years of experience) in a cost-effective manner. Ms. Stewart has successfully defended attorneys in hundreds of ARDC matters, including the following formal (public) disciplinary cases:
• She won a directed finding and dismissal of the charges against her client at trial before the ARDC Hearing Board, which involved allegations of nearly half a million dollars in improper fees. She thereafter also successfully argued in favor of the affirmation of the Hearing Board’s decision on appeal before the ARDC Review Board.
• She obtained a full dismissal of the ARDC’s complaint against another client before the
Hearing Board after utilizing a forensic computer expert to establish that her client had not improperly manipulated information on a website as charged.
• She obtained a full dismissal before the Hearing Board following a contested in relation to
allegations that the attorney had engaged in an improper conflict of interest in relation to a $425,000 gift made by an elderly client to the attorney’s own foundation.
• She obtained a dismissal of the charges by the Hearing Board following a contested hearing
in relation to allegations that her client converted escrow funds.
• She obtained a dismissal of the charges by the Hearing Board following a contested hearing in relation to allegations that her client neglected an immigration matter, made misrepresentations to the ARDC, and failed to cooperate with the ARDC.
• She has successfully represented attorneys in petitions for reinstatement to the practice of
law in Illinois. Stephanie has served as both a consulting and a testifying expert in the legal ethics field and regularly advises and represents governmental entities, corporations, law firms, and individual lawyers and other professionals in ethics matters. For example, she has conducted internal ethics investigations, including Himmel investigations, for some of the largest law firms in Chicago. She has also represented attorneys and law firms in relation to legal malpractice, motions to disqualify and for sanctions, fee disputes, and partnership matters. She has successfully represented numerous applicants at every stage before the Illinois Board of Admissions to the Bar (Committee on Character & Fitness), including five-person panel contested hearings. Stephanie also represents judges before the Judicial Inquiry Board and has obtained the confidential resolution of Rule 4(d) letters without the imposition of discipline. She has represented other professionals, including accountants and physicians, before the Illinois Department of Financial and Professional Regulation (IDFPR) and negotiated favorable settlements with non-disciplinary orders. Education
• Iowa State University – Ames, Iowa (B.A., 1991, with Honors) • Northwestern University Pritzker School of Law – Chicago, Illinois (J.D., 1994, Dean’s List)
Licensure
• Illinois (1994) • U.S. Supreme Court (2004)
Professional Organizations
• Chicago Bar Association (Chair, Committee on Professional Fees (2010-12), Vice-Chair (2019-20); Chair, Professional Responsibility Committee, Young Lawyers Section (1998-1999); Vice-Chair, Committee on the Unauthorized Practice of Law and Multi-jurisdictional Practice (2006-2007, 2007-2008); Mentor, ARDC Law Office Mentoring Committee (2008-present))
• Association of Professional Responsibility Lawyers (Secretary, Public Statements Committee (2007-2010); Member (2007-present))
• National Association of Legal Fee Analysis (NALFA); Faculty Member (2016-present)
• Appointed to the Transition Team on Education for the Alderman’s Office of the 46th Ward (2011)
Other Honors & Distinctions
• Appointed as a Special State's Attorney for the Cook County State's Attorney's Office regarding ethics matters (2007-2009)
• Appointed as a Special State’s Attorney for the Winnebago County State’s Attorney’s Office regarding ethics matters (2012-2017)
• Appointed to the Chicago Bar Association's ARDC referral panel (2007-present)
• Director, Chicago Bar Foundation Board of Directors (2005-2008)
• Member, Abraham Lincoln Marovitz Public Interest Law Scholarship Selection Committee (2006-2008) Publications & Speeches
• Speaker, Ethically Leverage Technology to Communicate, Law Bulletin Ethics Conference (2019) • Speaker, Overview and Avoidance of the ARDC, PLI’s Illinois Basic Skills for New Attorneys (2018) • Speaker, Hot Topics in Legal Outsourcing, the Anti-Bias Rule, and Advertising, Illinois Professional
Responsibility MCLE Marathon, Practising Law Institute (2017) • Ethical Issues in Getting and Keeping Clients, Northwest Suburban Bar Association (2017) • Speaker, Attorney Fees & Ethics: It Pays to Be Reasonable, National Association of Legal Fee Analysis
“NALFA” (2016) • Speaker, Attorney Mental Health & Substance Use: A call to Action, the Kennedy Forum (2016) • Speaker, Can They Do That? The Future of Legal Outsourcing, Ethics 2016, Law Bulletin Seminars
(2016) • Speaker, Illinois Lawyer’s Assistance Program Annual Training (2016) • Speaker, Getting Paid: Ethical Issues Related to Attorney’s Fees, Law Bulletin Seminars (2015) • Speaker, Who’s Watching the Store? Protecting Electronic Client Information, Law Bulletin Seminars
(2014) • Speaker, Legal Ethics 2012: Hot Topics in Communication and Technology, Lorman Education Services
(2012) • Speaker, Maintaining Confidentiality and Handling Inadvertent Disclosure, Law Bulletin Seminars
(2012) • Speaker, Conflicts of Interest, Confidentiality, & Technology, Law Bulletin Seminars: Technology & the
Rules of Professional Conduct (2011) • Speaker, Conflicts of Interest: the Principles and the Price of Being Wrong, Law Bulletin Seminars:
Rules 2010 (2009, 2010) • Co-author, Lawyers’ Liability and Discipline, A National Survey, presented at the Annual and Mid-Year
Conferences for the Association of Professional Responsibility Lawyers (APRL) (February, August 2008)
• Speaker, Attorney-Client Privilege and Related Ethical Issues, Lorman Educational Services (2008, 2009)
• Speaker, Ethical Issues for Government Lawyers, Department of Children and Family Services (2008) • Speaker, Ethical Issues in Litigation, Sara Lee Corporation (2008) • Speaker, An Ethical Attorney-Client Relationship, The Law Bulletin Litigation Skills Conference (2008) • Speaker, Current Developments in Lawyers’ Liability & Discipline, Association of Professional
Responsibility Lawyers (APRL) Annual and Mid-Year Conferences (2008) • Speaker, Issues of Malpractice and Ethics in Divorce, Illinois Institute of Continuing Legal Education
(IICLE) & the American Academy of Matrimonial Lawyers (AAML) (2008) • Speaker, Ethical Issues in Communicating with Your Client and Others in the Employment Law
Context, The Law Bulletin Employment Law Conference (2007) • Ethics training, Chicago Housing Authority (2005-2006) • Faculty Member, Illinois Supreme Court's Professionalism Program for Law Students (2003-present) • Faculty Member, Discovering the Secrets of Effective Depositions, National Institute of Trial Advocacy
(1998-present) • Faculty Member, National Mock Trial Institute, Northwestern University School of Law (1998-present) • Guest Lecturer on Ethics, De Paul University School of Law (2002)
$200 for DCBA Members $400 Non-MembersRegister online at: www.dcba.orgSend payments to: DuPage County Bar Association 126 S. County Farm Road, Wheaton, IL 60187
Session One: Friday November 15, 2019 from Noon - 5:30pm (Registration 11:30am) - GAL Appointment 101
- Substance Abuse/Mental Health Issues and Restrictions on Parenting Time
- Domestic Violence and Family Center Services
- DCFS/Children’s Advocacy Center/VSIs
- Special Needs Children
- 604 Evaluations
- Working with High Conflict Parents
Session Two: Saturday, November 16, 2019 from 8:00am-1:00pm (Registration 7:30am)- Children’s Panel
Program Location: DuPage County Administration Building Auditorium 421 N. County Farm Road in Wheaton, IL
By attending both sessions, you can earn up to 10 hours of CLE credit (PRMCLE awarded
based on final agenda). Attendance at both sessions is required to be placed or remain on
the approved GAL list used in 18th Circuit Domestic Relations Division.
The DuPage County Bar Association and the 18th Judicial Circuit Domestic Relations Division
Guardian Ad Litem Training Program
9/23/2019
1
Stephanie Stewart
Partner
Robinson, Stewart, Montgomery &
Doppke, LLC
DuPage County Bar Association
Law Practice Management and Technology Section
September 24, 2019
NAVIGATING PROFESSIONAL
RESPONSIBILITY & THE
ARDC
Melissa Smart
Litigation Manager & Senior Counsel
Attorney Registration and Disciplinary
Commission of the Supreme Court of
Illinois
�QUICK ARDC OVERVIEW�What is the ARDC�Procedures�Statistics & Annual Report
�TRENDS IN PROFESSIONALRESPONSIBILITY�Relevant Cases and Precedent
1
2
9/23/2019
2
ARDC =
Regulatory
Agency
3
4
9/23/2019
3
The mission of the ARDC is to
promote and protect the integrity
of the legal profession, at the
direction of the Supreme Court,
through attorney registration,
education, investigation, prosecution
and remedial action.
5
6
9/23/2019
4
“The Rules of Professional Conduct are rules“The Rules of Professional Conduct are rulesof reason…whether or not discipline shouldbe imposed for a violation, and the severity ofa sanction, depend on all the circumstances,such as the willfulness and seriousness of theviolation, extenuating factors and whetherthere have been previous violations.”
-IRCP Scope at 14, 19
7
8
9/23/2019
5
Attorney Registration and Disciplinary
Commission –Administrator’s Staff
Investigates and brings cases before the
Inquiry, Hearing and Review Boards.
Inquiry Board
12 Members appointed by Commission
8 lawyers, 4 non-lawyers
Sits in 3 member panels (2 lawyers, 1 non
lawyer)
Determines whether evidence warrants
disciplinary charges.
Hearing Board
131 members appointed by Commission
28 Chairs, 96 lawyers, 35 non-lawyers
Sits in 3 member panels
Adjudication counsel aids Board
Conducts hearings on disciplinary complaints
and reinstatement petitions.
Review Board
9 lawyer members
Sits in 3 member panels
Adjudication counsel aids Board
Reviews appeals from Hearing Board
recommendations.
Supreme Court of Illinois
Exclusive authority over regulation of the legal
profession in IL
Imposes disciplinary sanctions
Considers cases from Hearing and Review
Boards.
GRIEVANCES &
INVESTIGATIONS
9
10
9/23/2019
6
Supreme Court Rule 752/Commission Rule 51 = any source whatsoever
Most grievances = attorneys’ clients
Also based upon:� Reports from members of general public
� Reports from attorneys’ spouses
� Self-reports
� Newspaper articles
� Reports from disciplinary agencies in other jurisdictions
� Reports from other attorneys
� Respondent’s written response
� Complaining witness’ reply
� Reviewing court file/transcripts in underlying
matter
� Respondent’s sworn statement
� Interviewing witnesses, opposing counsel, or
judges
� Reviewing respondent’s working file
� Subpoena bank records where relevant
11
12
9/23/2019
7
Initial grievance received
No misconduct alleged
File closed by intake
Minor misconduct alleged and no multiple files
Investigation conducted by intake
and likely closed without further
action
Serious misconduct alleged, multiple
files, or not cooperating with
intake
File transferred to litigation where
investigation conducted
Three-person Panel: 2 attorneys & 1 non-attorney
� Close the file without further action
� Close the file with a caution
� Place the respondent on probation pursuant to Commission Rule 108
� Vote that a complaint be filed
13
14
9/23/2019
8
� Seek the advice of an experienced ARDC
defense attorney
� Try to determine whether the Administrator is
going to be requesting that a complaint be
voted
� Determine whether to provide additional
information to the Panel
� Determine whether to request an appearance
� If Inquiry has voted a complaint, determine
whether a motion to reconsider is
appropriate
FORMAL
PROCEEDINGS
15
16
9/23/2019
9
The ARDC annually evaluates
the effectiveness of the
attorney disciplinary system
in this state.
Each year, complete and
comprehensive statistics
concerning the disciplinary
caseload, in conjunction with
a report regarding all other
substantive work of the
ARDC, are submitted to the
Illinois Supreme Court and
published in an annual
report.
17
18
9/23/2019
10
� Approximately 94,608 lawyers in 2018; 94,778 in 2017
� 64,175 (68%) in Illinois
� 30,603 (32%) report principal address outside of IL
� first-year enrollment at U.S. law schools falling to 1970s
levels
� 38% female; 62% male; <1% non-binary
� Appx 4th largest attorney pop. in the US
� During 2018, ARDC docketed 5,029 investigations
(the 7th year of decline and the lowest number since 1985)
19
20
9/23/2019
11
5,029 Investigations Docketed*(Down from 5,199 in 2017)
“Prosecution” Function“Prosecution” Function“Prosecution” Function“Prosecution” Function
25
26
9/23/2019
14
Less than 2% of grievances result in formal
hearing matters*
*5,029 investigations total in 2018
• 64 disciplinary proceedings were added to the Hearing Board’s docket in 2018 (S.Ct. R. 753, 761(d) or 767) = 1.27%• Of those, 59 were initiated by the filing of a new disciplinary complaint (753 or 761(d)) = 1.17%• In addition to the 64 disciplinary proceedings filed before the Hearing Board in 2018, the ARDC initiated the filling
of proceedings directly before the Illinois Supreme Court and before the Circuit Court in 38 proceedings
(762(a), 763, 757 & 779(b)) = 64+38 = 102 = 2.03%
27
28
9/23/2019
15
29
30
9/23/2019
16
CASES OF
INTEREST
31
32
9/23/2019
17
Fla. Bar v. Kurt Mitchell (Fla. 2010)(10-day suspension);Fla. Bar v. Nicholas Mooney (Fla. 2011) (publicreprimand).
Fla. Bar v. Kurt Mitchell (Fla. 2010)(10-day suspension);Fla. Bar v. Nicholas Mooney (Fla. 2011) (publicreprimand).
33
34
9/23/2019
18
Pretexting:Disciplinary Counsel v. Brockler
145 Ohio St.3d 270 (2016)
Misconduct Decisions Involving ‘Lawyer Review’ Web Sites Appear to be on the Rise.
35
36
9/23/2019
19
37
38
9/23/2019
20
Discussed specific motions filed:• Request for Mediation• Motion to Modify Legal Decision Making Authority,
Parenting Time, and Child Support• “This client was very difficult.”• “After two months of working on this case, the client was
sent a bill and immediately questioned nearly every charge….”
• “After my client refused to pay her bill, I carefully reviewed the entire history of this case from its inception and discovered that I was the FIFTH attorney that my client had hired.”
• This client has now retained her SIXTH attorney to assist her in this case.
Discussed specific motions filed:• Request for Mediation• Motion to Modify Legal Decision Making Authority,
Parenting Time, and Child Support• “This client was very difficult.”• “After two months of working on this case, the client was
sent a bill and immediately questioned nearly every charge….”
• “After my client refused to pay her bill, I carefully reviewed the entire history of this case from its inception and discovered that I was the FIFTH attorney that my client had hired.”
• This client has now retained her SIXTH attorney to assist her in this case.
39
40
9/23/2019
21
�Repeatedly made statements
concerning the integrity of judges,
knowing that those statements were
false, or made with reckless
disregard for their truth or falsity;
�Suspension- three years, UFO
(September 21, 2015)
�Interim suspension - March 2014
In re Joanne Denison, No. 2013PR00001
The advertising rules may apply
� Is it false/misleading?� Is it a prohibited solicitation?
Be careful not to disclose confidential client informationIn re Peshek
Beware of inadvertently creating an attorney-client relationship
Don’t attempt to gain access to non-public social media viasubterfuge trickery dishonesty, deception, pretext, or alias
