Illinois Legal Ethics
V. LAW FIRMS AND ASSOCIATIONS
5.1 Rule 5.1 Responsibilities of a Partner and Supervisory Lawyer
5.1:100 Comparative Analysis of Illinois Rule
¥ Primary Illinois References:
IL Rule 5.1
¥ Background References: ABA
Model Rule 5.1, Other Jurisdictions
¥ Commentary:
5.1:101 Model Rule Comparison
IRPC 5.1 is MR 5.1, modified slightly for clarity and emphasis.
This Rule has no parallel in the Illinois Code and was a very important change made by the IRPC. Note that the supervised lawyer ("another lawyer") might not be in the supervising lawyer's firm.
It is important to note that this is not a Rule directly regulating professional liability. The firm and any lawyer - principal has always had whatever liability a principal is exposed to for the malfeasance of an agent. What is new is that the supervisor has an obligation to have taken "reasonable efforts" in advance of the agent's malfeasance; efforts to assure that the event would not happen. This does not mean that the supervisor is insuring that there will be no malfeasance, nor does it mean that the supervisor is automatically subject to discipline if malfeasance accrues. The discipline would result from failure to have any program or any effort in this area.
5.1:102 Model Code Comparison
[The discussion of this topic has not yet been written.]
5.1:200 Duty of Partners to Monitor Compliance with Professional Rules
¥ Primary Illinois References:
IL Rule 5.1
¥ Background References: ABA
Model Rule 5.1(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 91:201, ALI-LGL ¤ 12, Wolfram
¤ 16.2
There appears to be no Federal or State judicial decisions or Illinois state bar association opinion on the subject.
5.1:300 Monitoring Duty of Supervising Lawyer
¥ Primary Illinois References:
IL Rule 5.1
¥ Background References: ABA
Model Rule 5.1(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 91:201, ALI-LGL ¤ 12, Wolfram
¤ 16.2
There appears to be no Federal or State judicial decisions or Illinois state bar association opinion on the subject.
5.1:400 Failing to Rectify the Misconduct of a Subordinate Lawyer
¥ Primary Illinois References:
IL Rule 5.1
¥ Background References: ABA
Model Rule 5.1(c), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 91:201, ALI-LGL ¤ 5, Wolfram
¤ 16.2
There appears to be no Federal or State judicial decisions or Illinois state bar association opinion on the subject.
5.1:500 Vicarious Liability of Partners
¥ Primary Illinois References:
IL Rule 5.1
¥ Background References: ABA
Model Rule 5.1, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 91:201, ALI-LGL ¤¤ 8, 10
There appears to be no Federal or State judicial decisions or Illinois state bar association opinion on the subject.
5.2 Rule 5.2 Responsibilities of a Subordinate Lawyer
5.2:100 Comparative Analysis of Illinois Rule
¥ Primary Illinois References:
IL Rule 5.2
¥ Background References: ABA
Model Rule 5.2, Other Jurisdictions
¥ Commentary:
5.2:101 Model Rule Comparison
IRPC 5.2 is MR 5.2, slightly modified.
Again, this is new, and important, matter; there was no parallel provision in the Illinois Code. Note carefully the interrelationship of IRPC 5.1(b) with the lawyer's duty to report under IRPCÊ8.3(a).
5.2:102 Model Code Comparison
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5.2:200 Independent Responsibility of a Subordinate Lawyer
¥ Primary Illinois References:
IL Rule 5.2
¥ Background References: ABA
Model Rule 5.2(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 91:201, ALI-LGL ¤ 5, Wolfram
¤ 16.2
There appears to be no Federal or State judicial decisions or Illinois state bar association opinion on the subject.
5.2:300 Reliance on a Supervisor's Resolution of Arguable Ethical Issues
¥ Primary Illinois References:
IL Rule 5.2
¥ Background References: ABA
Model Rule 5.2(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 91:201, ALI-LGL ¤ 5, Wolfram
¤ 16.2
There appears to be no Federal or State judicial decisions or Illinois state bar association opinion on the subject.
5.3 Rule 5.3 Responsibilities Regarding Nonlawyer Assistants
5.3:100 Comparative Analysis of Illinois Rule
¥ Primary Illinois References:
IL Rule 5.3
¥ Background References: ABA
Model Rule 5.3, Other Jurisdictions
¥ Commentary:
5.3:101 Model Rule Comparison
IRPC 5.3 is MR 5.3, modified so as to be clearly applicable to both law firms and solo practitioners, and as with IRPC 5.1, the MR's language in (a) and (b) ("a partner"; "a lawyer") has been changed to "each partner"; "each lawyer." There was no parallel provision in the Illinois Code.
5.3:102 Model Code Comparison
[The discussion of this topic has not yet been written.]
5.3:200 Duty to Establish Safeguards
¥ Primary Illinois References:
IL Rule 5.3
¥ Background References: ABA
Model Rule 5.3(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 91:201, ALI-LGL ¤¤ 4, 5, Wolfram
¤ 16.3
See also, 91 Ill. Atty. Reg.Ê& Disc. Comm. CHÊ633.
5.3:300 Duty to Control Nonlawyer Assistants
¥ Primary Illinois References:
IL Rule 5.3
¥ Background References: ABA
Model Rule 5.3(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 21:8601, ALI-LGL ¤¤ 4, 5,
Wolfram ¤ 16.3
5.3:400 Responsibility for Misconduct of Nonlawyer Assistants
¥ Primary Illinois References:
IL Rule 5.3
¥ Background References: ABA
Model Rule 5.3(c), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 91:201, ALI-LGL ¤¤ 4, 5, Wolfram
¤ 16.3
5.4 Rule 5.4 Professional Independence of a Lawyer [Restrictions on Form of Practice]
5.4:100 Comparative Analysis of Illinois Rule
¥ Primary Illinois References:
IL Rule 5.4
¥ Background References: ABA
Model Rule 5.4, Other Jurisdictions
¥ Commentary:
5.4:101 Model Rule Comparison
The IRPC 5.4 is MR 5.4, save for IRPC 5.4(a)(2) which permits a payment only in respect of the deceased's contribution to the compensation for unfinished business, and the exception in (d)(2) which is consistent with Illinois Supreme Court RuleÊ721.
IRPC 5.4(a) and (b) are roughly parallel to Illinois CodesÊ3-102(a) and 3-103; IRPC 5.4(c) and (d) are roughly parallel to Illinois CodesÊ5-107(c) and (d).
The American Bar Association has recommended a new MR permitting the sale of a practice and thus requiring some changes herein. As of this date, Illinois has not adopted any such changes.
5.4:102 Model Code Comparison
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5.4:200 Sharing Fees with a Nonlawyer
¥ Primary Illinois References:
IL Rule 5.4
¥ Background References: ABA
Model Rule 5.4(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 41:801, ALI-LGL ¤ 60, Wolfram
¤¤ 16.4, 16.5
93 Ill. Atty. Reg.Ê& Disc. Comm. CHÊ320.
5.4:300 Forming a Partnership with Nonlawyers
¥ Primary Illinois References:
IL Rule 5.4
¥ Background References: ABA
Model Rule 5.4(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 91:401, ALI-LGL ¤ 60, Wolfram
¤¤ 16.4, 16.5
5.4:400 Third Party Interference with a Lawyer's Professional Judgment
¥ Primary Illinois References:
IL Rule 5.4
¥ Background References: ABA
Model Rule 5.4(c), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 51:901, ALI-LGL ¤ 60, Wolfram
¤ 8.8
5.4:500 Nonlawyer Ownership in or Control of Profit-Making Legal Service Organizations
¥ Primary Illinois References:
IL Rule 5.4
¥ Background References: ABA
Model Rule 5.4(d), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 91:401, ALI-LGL ¤ 60, Wolfram
¤ 16.4, 16.5
5.4:510 Group Legal Services
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5.4:520 Nonprofit Organizations Delivering Legal Services
[The discussion of this topic has not yet been written.]
5.5 Rule 5.5 Unauthorized Practice of Law
5.5:100 Comparative Analysis of Illinois Rule
¥ Primary Illinois References:
IL Rule 5.5
¥ Background References: ABA
Model Rule 5.5, Other Jurisdictions
¥ Commentary:
5.5:101 Model Rule Comparison
The IRPC 5.5 is identical to MR 5.5.
IRPC 5.5(a) is parallel to Illinois CodeÊ3-101(c). IRPC 5.5(b) is parallel to Illinois CodeÊ3-101(a).
IRPC 5.5(a) raises an unsettled question of interstate professional discipline. See IRPCÊ8.5.
5.5:102 Model Code Comparison
[The discussion of this topic has not yet been written.]
5.5:200 Engaging in Unauthorized Practice
¥ Primary Illinois References:
IL Rule 5.5
¥ Background References: ABA
Model Rule 5.5(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 21:8001, ALI-LGL ¤¤ 3, 4,
Wolfram ¤ 15.1
See also, 92 Ill. Atty. Reg.Ê& Disc. Comm. SHÊ244; 93 Ill. Atty. Reg.Ê& Disc. Comm. CHÊ320, 94 Ill. Atty. Reg.Ê& Disc. Comm. CHÊ596; 95 Ill. Atty. Reg.Ê& Disc. Comm. CHÊ82.
5.5:210 Practice of Law by Nonlawyers
[The discussion of this topic has not yet been written.]
5.5:220 Admission and Residency Requirements for Out-of-State Lawyers
[The discussion of this topic has not yet been written.]
5.5:230 Pro Hac Vice Admission [see also 8.1:240]
[The discussion of this topic has not yet been written.]
5.5:240 Performing Legal Services in Another Jurisdiction
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5.5:300 Assisting in the Unauthorized Practice of Law
¥ Primary Illinois References:
IL Rule 5.5
¥ Background References: ABA
Model Rule 5.5(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 21:8201, ALI-LGL ¤ 4, Wolfram
¤ 15.1
5.6 Rule 5.6 Restrictions on Right to Practice
5.6:100 Comparative Analysis of Illinois Rule
¥ Primary Illinois References:
IL Rule 5.6
¥ Background References: ABA
Model Rule 5.6, Other Jurisdictions
¥ Commentary:
5.6:101 Model Rule Comparison
The IRPC is identical with the MR.
The Rule in the Illinois Code equivalent to (b) was Illinois CodeÊ2-108. IRPC 5.6(a) is substantially new.
This Rule would have to be amended if Illinois were to permit the sale of a practice.
5.6:102 Model Code Comparison
[The discussion of this topic has not yet been written.]
5.6:200 Restrictions on Lawyers Leaving a Firm
¥ Primary Illinois References:
IL Rule 5.6
¥ Background References: ABA
Model Rule 5.6(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 51:1201 ALI-LGL ¤ 10
Rule 5.6(a) of the Illinois Rules of Professional Conduct prohibits lawyers from participation in the offer or creation of a "partnership or employment agreement that restricts the rights of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement."
This Rule precludes courts from enforcing agreements that do not allow lawyers to compete with their prior employers in the practice of law. In DowdÊ& Dowd, Ltd. v. Gleason, for example, a plaintiff contested an appellate court's decision not to enforce noncompetition covenants that prevented a lawyer from soliciting the firm's clients upon the lawyer's termination of employment. 1998 WL 123189 *10 (Ill. 1998). The plaintiff argued that since the contract was entered into prior to the effective date of Rule 5.6(a) (RuleÊ5.6 of the Illinois Rules of Professional Conduct took effect on AugustÊ1, 1990), and since the language of the Rule did not give the RuleÊretroactive effect, the RuleÊshould not be applied to invalidate the noncompetition clause. The court, however, disagreed with the plaintiff. The court noted that the policy underlying the Rule was to give clients more freedom in choosing attorneys and to "protect lawyers from onerous conditions that would unduly limit their mobility." (Citing G.ÊHazardÊ& Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct ¤Ê5.6:201 at 824 (Supp. 1997)). The Gleason court decided that the noncompetition clause conflicted with RuleÊ5.6, and thus, could not be enforced. Id. at *10. Therefore, the court held that RuleÊ5.6 "may have retroactive effect and therefore bars the present enforcement of noncompetition covenants entered into prior to the effective date of the rule." Id. Accordingly, contract clauses that prevent a lawyer from competing with an employer upon departure from the firm will not be enforced if the contracts are subject to Illinois law.
The restriction on a lawyer's right to practice does not have to be direct in order to render the contract clause unenforceable. In Illinois, a lawyer's termination agreement that includes a financial disincentive for competition, effectively hindering a lawyer's right to practice, will also be considered violative of RuleÊ5.6(a), and thus, unenforceable. See Stevens v. Rooks Pitts and Poust, 682 N.E.2d 1125 (Ill. App. Ct. 1997). The Stevens case involved a law partnership agreement clause where a departing partner gave up a portion of compensation due to him if he competed with the firm in a defined geographic area within one year of his termination of employment. Id. at 992-93, 1128. In its analysis, the Stevens court reasoned that requiring an attorney to give up some of the compensation that was due to him if the attorney competes with the firm "hinders both the departing lawyer's ability to take on clients and the clients' choice of counsel." Id. at 999, 1132. Thus, the court concluded, such a provision was against public policy and unenforceable. Even if the contract clause indirectly restricts the right for a lawyer to practice through financial disincentives, as in this case, RuleÊ5.6 still has retroactive effect. See id. at 997, 1130 (stating that RuleÊ5.6 applied to pre-existing contracts). As a result, contract clauses that restrict a lawyer's right to practice by offering a financial disincentive will not be enforced, provided the departing attorney is not leaving the firm to retire.
Thus, agreements that restrict a lawyer's right to practice law after departure from a firm will generally be void in Illinois, whether the restriction be direct, or indirect, regardless of whether the contract was formed before or after the effective date of RuleÊ5.6(a).
5.6:300 Settlements Restricting a Lawyer's Future Practice
¥ Primary Illinois References:
IL Rule 5.6
¥ Background References: ABA
Model Rule 5.6(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 51:1201, ALI-LGL ¤ 10, Wolfram
¤ 16.2.3
5.7 Rule 5.7 Responsibilities Regarding Law-Related Services
5.7:100 Comparative Analysis of Illinois Rule
¥ Primary Illinois References:
¥ Background References: ABA
Model Rule 5.7, Other Jurisdictions
¥ Commentary:
5.7:101 Model Rule Comparison
MR 5.7, Responsibilities Regarding Law Related Services, was not adopted in Illinois, and since it was promulgated (in the present form, FebruaryÊ2, 1994) by the ABA after publication of the IRPC (FebruaryÊ8, 1990), the number of the Rule is not noted as "Reserved."
There was no parallel provision in the Illinois Code.
5.7:102 Model Code Comparison
[The discussion of this topic has not yet been written.]
5.7:200 Applicability of Ethics Rules to Ancillary Business Activities
¥ Primary Illinois References:
¥ Background References: ABA
Model Rule 5.7, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 101:2103, ALI-LGL ¤, Wolfram
¤