Innovations of Note
The Illinois Supreme Court Access to Justice Commission released a report and strategic plan “Advancing Access to Justice in Illinois” in 2017.
The Chicago Bar Association (CBA) and the Chicago Bar Foundation (CBF) have created a joint Task Force on the Sustainable Practice of Law & Innovation. The goals of the CBA-CBF Task Force are twofold. First, the Task Force aims to submit recommendations regarding ethics rule changes to the Illinois Supreme Court by the end of the 2019-2020 bar year. And second, the Task Force will then continue to identify, track, and assess ongoing legal innovations and initiatives in other jurisdictions to ensure that Illinois remains at the forefront on these issues.
Change Log Entries
Differences from ABA Model Rules
| Rule 1.2(c) Limited Scope | Same as Model Rule |
| Rule 5.4(a) Fee-Sharing | Same as Model Rule |
| Rules 5.4(b)-(d) Non-Lawyer Ownership | Same as Model Rule |
| Rule 5.5. Unauthorized Practice of Law | Significant Changes |
| Rule 5.7 Law Related Services | Does Not Have |
| Rule 6.5 Limited Scope | Same as Model Rule |
| Rule 7.2(b) Lawyer Referral | Significant Changes |
| Cloud Computing Advisory | Yes |
| Technology Competency Rules | Yes |
ABA Rule 1.2(c) (Limited Scope)
Same as Model Rule.
Relevant Comments:
[6] The scope of services to be provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer’s services are made available to the client. When a lawyer has been retained by an insurer to represent an insured, for example, the representation may be limited to matters related to the insurance coverage. A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client’s objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.
[7] Although this Rule affords the lawyer and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances. If, for example, a client’s objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer’s services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. See Rule 1.1.
[8] All agreements concerning a lawyer’s representation of a client must accord with the Rules of Professional Conduct and other law. See, e.g., Rules 1.1, 1.8 and 5.6, and Supreme Court Rules 13(c)(6) and 137(e).
Modified By:
Illinois Ethics Opinion No. 12-09
A lawyer not admitted in Illinois may not primarily practice in the state, physically or through a virtual office, even if the co-owner of the law firm is a lawyer, licensed in Illinois, who has direct supervision of the non-admitted lawyer on matters involving Illinois clients.
Illinois State Bar Ass’n Prof. Conduct Comm. Op. 04-03
A lawyer who mediated a divorce settlement between unrepresented husband and wife may not prepare a proposed judgment of dissolution of marriage, a marriage separation agreement and joint parenting agreement for husband and wife and allow husband and wife to file said documents as pro se litigants.
Illinois State Bar Ass’n Prof. Conduct Comm. Op. 94-01
A lawyer aids in the unauthorized practice of law, and may violate rules pertaining to confidentiality, conflicts, and the duty to communicate with and explain matters to a client, by limiting his role in a real estate transaction to the drafting of documents and delegating the gathering and dissemination of information, the resolution of problems arising from such the documents drafted, and other problems which may arise at the closing, to the real estate broker.
Illinois State Bar Ass’n Prof. Conduct Comm. Op. 849 (1983; Affirmed 1991)
An attorney may agree in advance with his or her client to limit the scope of the attorney’s representation and draft pleadings without appearing or taking any part in any of the proceeding itself, provided that the client gives his or her fully informed consent to such limitation of employment and the attorney takes whatever steps may be necessary to avoid foreseeable prejudice to the client’s rights.
Illinois State Bar Ass’n Prof. Conduct Comm. Op. 85-6 (1985; Affirmed 1991)
It is improper for a lawyer to advise a client; prepare pleadings, motions and petitions for client; file documents in court on client’s behalf, but then seek a waiver from the client excusing the lawyer’s presence in court in a bankruptcy representation.
ABA Rule 5.4(a) (Fee-sharing)
Same as Model Rule
Relevant Comments:
[1] The provisions of this Rule express traditional limitations on sharing fees. These limitations are to protect the lawyer’s professional independence of judgment. Where someone other than the client pays the lawyer’s fee or salary, or recommends employment of the lawyer, that arrangement does not modify the lawyer’s obligation to the client. As stated in paragraph (c), such arrangements should not interfere with the lawyer’s professional judgment.
Modified By:
Ill. Ethics Op. 06-02 (2006) (lawyer may not compensate marketing firm based upon fees received from clients it refers)
Ill. Ethics Op. 01-05 (2002) (law firm may not avoid Rule 5.4(a) by creating sham “mediation firm” in order to share legal fees with accounting firm in exchange for referrals)
Ill. Ethics Op. 98-09 (1999) (lawyer who undertakes unfinished legal work of deceased lawyer may pay estate portion of fees allocable to work already performed)
Richards v. SSM Health Care, Inc., 724 N.E.2d 975 (Ill. App. Ct. 2000) (lawyer’s agreement to pay percentage of fee in exchange for referrals from bar-sponsored lawyer referral service was authorized by Rule 7.2(b) and did not implicate either Rule 1.5 or Rule 5.4(a))
ABA Rule 5.4(b – d) Non-lawyer ownership
Same as Model Rule
Relevant Comments:
[2] This Rule also expresses traditional limitations on permitting a third party to direct or regulate the lawyer’s professional judgment in rendering legal services to another. See also Rule 1.8(f) (lawyer may accept compensation from a third party as long as there is no interference with the lawyer’s independent professional judgment and the client gives informed consent).
Modified by:
Ill. Ethics Op. 96-4 (1996) (lawyer may not enter arrangement with nonlawyer real estate broker who will form, own, and direct corporation that would contract with independent lawyers who would pay to use corporate name and hold themselves out as doing business in corporate name in return for corporation’s provision of marketing and office space); ABA
Bowers v. State Farm Auto. Ins. Co., 932 N.E.2d 607 (Ill. App. Ct. 2010) (Rule 5.4(c) and (d) did not implicitly overrule state law permitting insurance company to employ staff lawyers to represent its insureds). ABA
ABA Rule 5.5 (UPL)
RULE 5.5: UNAUTHORIZED PRACTICE OF LAW; MULTIJURISDICTIONAL PRACTICE OF LAW
…
(d) A lawyer admitted in another United States jurisdiction or admitted or otherwise authorized to practice in a foreign jurisdiction, and not disbarred or suspended from practice in any jurisdiction or the equivalent thereof, may provide legal services through an office or other systematic and continuous presence in this jurisdiction that:
(1) are provided to the lawyer’s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission; or
(2) are services that the lawyer is authorized to provide by federal law or other law or rule to provide in of this jurisdiction.
(e) For purposes of paragraph (d), the foreign lawyer must be a member in good standing of a recognized legal profession in a foreign jurisdiction.
Relevant Comments:
[15] Paragraph (d) identifies two circumstances in which a lawyer who is admitted to practice in another United States or a foreign jurisdiction, and is not disbarred or suspended from practice in any jurisdiction or the equivalent thereof, may establish an office or other systematic and continuous presence in this jurisdiction for the practice of law. Pursuant to paragraph (c) of this Rule, a lawyer admitted in any U.S. jurisdiction may also as well as provide legal services in this jurisdiction on a temporary basis. Except as provided in paragraphs (d)(1) and (d)(2), a lawyer who is admitted to practice law in another United States or foreign jurisdiction and who establishes an office or other systematic or continuous presence in this jurisdiction must become admitted to practice law generally in this jurisdiction.
[16] Paragraph (d)(1) applies to a U.S. or foreign lawyer who is employed by a client to provide legal services to the client or its organizational affiliates, i.e., entities that control, are controlled by, or are under common control with the employer. This paragraph does not authorize the provision of personal legal services to the employer’s officers or employees. The paragraph applies to in-house corporate lawyers, government lawyers and others who are employed to render legal services to the employer. The lawyer’s ability to represent the employer outside the jurisdiction in which the lawyer is licensed generally serves the interests of the employer and does not create an unreasonable risk to the client and others because the employer is well situated to assess the lawyer’s qualifications and the quality of the lawyer’s work.
[17] If an employed lawyer establishes an office or other systematic presence in this jurisdiction for the purpose of rendering legal services to the employer, the lawyer may be subject to registration or other requirements, including assessments for client protection funds and mandatory continuing legal education. See Illinois Supreme Court Rules 706(f), (g), 716, and 717 concerning requirements for house counsel and legal service program lawyers admitted to practice in other jurisdictions who wish to practice in Illinois.
[18] Paragraph (d)(2) recognizes that a U.S. or foreign lawyer may provide legal services in a jurisdiction in which the lawyer is not licensed when authorized to do so by federal or other law, which includes statute, court rule, executive regulation or judicial precedent.
[19] A lawyer who practices law in this jurisdiction pursuant to paragraphs (c) or (d) or otherwise is subject to the disciplinary authority of this jurisdiction. See Rule 8.5(a).
[20] In some circumstances, a lawyer who practices law in this jurisdiction pursuant to paragraphs (c) or (d) may have to inform the client that the lawyer is not licensed to practice law in this jurisdiction. For example, that may be required when the representation occurs primarily in this jurisdiction and requires knowledge of the law of this jurisdiction. See Rule 1.4(b).
[21] Paragraphs (c) and (d) do not authorize communications advertising legal services to prospective clients in this jurisdiction by lawyers who are admitted to practice in other jurisdictions. Whether and how lawyers may communicate the availability of their services to prospective clients in this jurisdiction is governed by Rules 7.1 to 7.5.
[22] Paragraph (e) recognizes the importance of the structure and procedures of the legal system in a foreign jurisdiction in assuring that a foreign lawyer is qualified to practice in Illinois. Application of paragraph (e) requires recognition that structure and procedures vary among foreign jurisdictions. Where members of the profession in the foreign jurisdiction are admitted or authorized to practice as lawyers or counselors at law or the equivalent, and are subject to effective regulation and discipline by a duly constituted professional body or a public authority, paragraph (e) is satisfied. Where the legal system does not have such structure and procedures, other attributes of the system must be considered to determine whether they supply assurances of an appropriate legal background. In addition, a foreign lawyer must satisfy the requirements of Illinois Supreme Court Rule 716 to be admitted as house counsel.
Modified By:
Ill. Ethics Op. 06-02 (2006) (lawyer may not use marketing firm or nonlawyer employees to screen potential clients to determine whether they have valid claims)
Ill. Ethics Op. 12-09 (2012) (“A lawyer not admitted in Illinois may not primarily practice in this state, physically or through a virtual office, even if the co-owner of the law firm is a lawyer, licensed in Illinois, who has direct supervision of the nonadmitted lawyer on matters involving Illinois clients.”)
Illinois Ethics Op. 13-03, 29 Law. Man. Prof. Conduct 125 (2013) (nonlawyer may not represent party in FINRA arbitration)
Ill. Ethics Op. 13-08 (2013) (out-of-state lawyer whose practice limited solely to federal law did not assist in unauthorized practice of law by employing assistant to collect information and meet with clients)
Ill. Ethics Op. 14-03 (2014) (“lawyer employed by a financial services company may not provide legal services to his employer’s customers who are seeking social security appeals” in part “because . . . the lawyer may be at risk of assisting the employer, a non-legal entity, in the unauthorized practice of law”)
Illinois Ethics Op. 14-04, 30 Law. Man. Prof. Conduct 368 (2014) (because out-of-state lawyers may temporarily provide legal services in Illinois under certain circumstances, mail solicitations to potential Illinois personal injury clients will not necessarily constitute unauthorized practice of law).
BVM Olenti, Inc. v. Huttinger, 2012 IL App (2d) 110918-U, 2013 WL 285723 (Ill.App. January 24, 2013) (out-of-state lawyer prepared and signed complaint before moving for admission pro hac vice)
Continental Cas. Co. v. Cuda, 715 N.E.2d 663 (Ill.App. 1 Dist., 1999)
Our supreme court has described the practice of law as: “[T]he giving of advice or rendition of any sort of service by any person, firm or corporation when the giving of such advice or rendition of such service requires the use of any degree of legal knowledge or skill.” People ex rel. Illinois State Bar Ass’n v. Schafer, 404 Ill. 45, 51, 87 N.E.2d 773 (1949)
Downtown Disposal Servs. v. Chicago, 943 N.E.2d 185 (Ill. App. Ct. 2011) (corporate litigant’s president improperly filed complaint in administrative review)
In re Discipio, 645 N.E.2d 906 (Ill. 1994) (lawyer continued to accept referrals of workers’ compensation cases from–and share work and divide fees with–disbarred lawyer)
In re Howard, 721 N.E.2d 1126 (Ill. 1999) (“Determining what conduct constitutes ““practicing law’ defies mechanistic formulation,” although it “encompasses not only court appearances, but also services rendered out of court and includes the giving of any advice or rendering of any service requiring the use of legal knowledge.”
Lindstrom v. Illinois, 632 F. Supp. 1535 (N.D. Ill. 1986)
Lazy ‘L’ Family Pres. Trust v. First State Bank of Princeton, 521 N.E.2d 198 (Ill. App. Ct. 1988)
People v. Harris, 915 N.E.2d 103 (Ill. App. Ct. 2009) (lawyer convicted of impersonating a lawyer by giving legal advice on trademark matter knowing he was no longer authorized to practice law in Michigan or before patent office; lawyer had been suspended from Michigan bar for failing to pay registration fees and from patent office after failing to provide current address)
Stone Street Partners, LLC v. City of Chicago Dept. of Administrative Hearings, 12 N.E.3d 691 (Ill. App. 2014) (corporations must be represented by licensed attorneys at administrative hearings that involve sworn testimony and statutory or ordinance interpretation and carry potential for imposition of fines)
Other Definitions:
Continental Cas. Co. v. Cuda, 715 N.E.2d 663 (Ill.App. 1 Dist., 1999) (Our supreme court has described the practice of law as: “[T]he giving of advice or rendition of any sort of service by any person, firm or corporation when the giving of such advice or rendition of such service requires the use of any degree of legal knowledge or skill.” People ex rel. Illinois State Bar Ass’n v. Schafer, 404 Ill. 45, 51, 87 N.E.2d 773 (1949).)
ABA Rule 5.7 (Law Related Services)
Reserved
ABA Rule 6.5 (Court annexed/Non-profit limited scope)
Same as Model Rule.
Relevant Comments:
[1] Legal services organizations, courts and various nonprofit organizations have established programs through which lawyers provide short-term limited legal services–such as advice or the completion of legal forms–that will assist persons to address their legal problems without further representation by a lawyer. In these programs, such as legal-advice hotlines, advice-only clinics or pro se counseling programs, a client-lawyer relationship is established, but there is no expectation that the lawyer’s representation of the client will continue beyond the limited consultation. Such programs are normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation. See, e.g., Rules 1.7, 1.9 and 1.10.
[2] A lawyer who provides short-term limited legal services pursuant to this Rule must secure the client’s informed consent to the limited scope of the representation. See Rule 1.2(c). If a short-term limited representation would not be reasonable under the circumstances, the lawyer may offer advice to the client but must also advise the client of the need for further assistance of counsel. Except as provided in this Rule, the Rules of Professional Conduct, including Rules 1.6 and 1.9(c), are applicable to the limited representation.
[3] Because a lawyer who is representing a client in the circumstances addressed by this Rule ordinarily is not able to check systematically for conflicts of interest, paragraph (a) requires compliance with Rules 1.7 or 1.9(a) only if the lawyer knows that the representation presents a conflict of interest for the lawyer, and with Rule 1.10 only if the lawyer knows that another lawyer in the lawyer’s firm is disqualified by Rules 1.7 or 1.9(a) in the matter.
[4] Because the limited nature of the services significantly reduces the risk of conflicts of interest with other matters being handled by the lawyer’s firm, paragraph (b) provides that Rule 1.10 is inapplicable to a representation governed by this Rule except as provided by paragraph (a)(2). Paragraph (a)(2) requires the participating lawyer to comply with Rule 1.10 when the lawyer knows that the lawyer’s firm is disqualified by Rules 1.7 or 1.9(a). By virtue of paragraph (b), however, a lawyer’s participation in a short-term limited legal services program will not preclude the lawyer’s firm from undertaking or continuing the representation of a client with interests adverse to a client being represented under the program’s auspices. Nor will the personal disqualification of a lawyer participating in the program be imputed to other lawyers participating in the program.
[5] If, after commencing a short-term limited representation in accordance with this Rule, a lawyer undertakes to represent the client in the matter on an ongoing basis, Rules 1.7, 1.9(a) and 1.10 become applicable.
ABA Rule 7.2 (Lawyer referral)
RULE 7.2: ADVERTISING
….
(b) A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may
(1) pay the reasonable costs of advertisements or communications permitted by this Rule;
(2) pay the usual charges of a legal service plan or a not-for-profit lawyer referral service;
(3) pay for a law practice in accordance with Rule 1.17; and
(4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if
(i) the reciprocal referral agreement is not exclusive, and
(ii) the client is informed of the existence and nature of the agreement.
Modified By:
Illinois Ethics Op. 92-23 (1993) (participation in computerized, for-profit lawyer referral system limited to four attorneys not permissible)
Ill. Ethics Op. 96-10 (1997) Lawyers also may advertise over electronic media, including the internet and text messaging, provided the advertisements comply with ethics rules
Ill. Ethics Op. 96-04 (1996) (real estate brokerage corporation may not market lawyers’ services to public and charge lawyers marketing fee)
Illinois Ethics Op. 97-05 (1998) (lawyer may not participate in for-profit referral service operated by nonlawyer’s company and pay fees to company for each referral)
Ill. Ethics Op. 97-6 (1998) (lawyer may advertise using recorded telephone announcement featuring general legal information);
Ill. Ethics Op. 10-02 (2009) (lawyer referral arrangement with real estate company that requires lawyer to use solely the company’s affiliated title insurer as condition of receiving referrals impermissible
Illinois Ethics Op. 12-03 (2012) (lawyer may participate in business networking group in which members agree to refer clients to each other if referrals are not exclusive, lawyer obtains client’s informed consent before sharing name and referral arrangement does not interfere with lawyer’s professional judgment)
Richards v. SSM Health Care Inc., 724 N.E.2d 975 (Ill. App. Ct. 2000) (lawyer’s referral fee agreement providing that lawyer turn over percentage payment of fees earned to bar association is enforceable and not prohibited by policy considerations in Rules 1.5 and 5.4);
Cloud Computing
Illinois Ethics Opinion 10-01 (2009) https://www.isba.org/sites/default/files/ethicsopinions/10-01.pdf
Technology Competency
Comment to rule 1.1
Maintaining Competence
[8] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject