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Legal Ethics - A Case Study

In the most recent Legal Ethics column (contained in the January 2014 edition of the CBA Record), I proposed dividing the general concept of “legal ethics” into three subgroups: professional responsibility – focused on the Rules of Professional Conduct, occupational ethics – focused on the situational ethics of one’s business and professional context, and personal morality. I also stated that I hoped to apply this analysis in future columns. The Illinois Supreme Court has recently handed down an opinion that provides an excellent case study.

In Re Theodore George Karavidas, 2013 IL 115767 (filed November 15, 2013) is a review of a disciplinary proceeding. The Respondent was named in his father’s will to be executor of the estate and in the related trust documents to be the successor trustee. The estate documents and probate matters were handled by another attorney without the Respondent’s professional involvement. The opinion states that the Respondent “has no record of previous disciplinary actions and no professional experience in matters of probate or trusts.”

The Respondent made significant errors in the administration of the estate. He commingling funds, borrowing funds for his own use and the use of other family members, and generally did not follow the appropriate formalities. He, however, did not appear to be dishonest, and repaid all funds borrowed.

The Administrator of the ARDC brought a complaint against the Respondent alleging a number of violations of the Illinois Rules for breach of duties to the estate and the beneficiaries, and for conduct prejudicial to the administration of justice [(Rule 8.4(a)(5)] and which tends to bring the legal profession into disrepute (Supreme Court Rule 770). The Hearing Board recommended he be suspended from practice of four months. Review Board “reversed the Hearing Board’s decision and recommended that the charges against respondent be dismissed because the Administrator did not prove by clear and convincing evidence that respondent violated the Rules of Professional Conduct when he committed the alleged conversion and breach of fiduciary duty.”

The Illinois Supreme Court took as an issue on appeal whether the alleged breach of fiduciary duty or conversion with respect the Respondent’s father’s estate “are professional misconduct that may be the basis for the imposition of professional discipline.” It is on this issue that the court split 5 to 2, and provides us the opportunity to apply our analysis.

The majority opinion by Chief Justice Garman concludes:
“As a matter of due process, an attorney who is charged with misconduct and faces potential discipline must be given adequate notice of the charges, including the rule or rules he is accused of violating. Personal misconduct that falls outside the scope of the Rules of Professional Conduct may be the basis for civil liability or other adverse consequences, but will not result in professional discipline.”
In short, for purposes of professional discipline, “legal ethics” is limited to violation of one of the Rules of Professional Conduct.

Justice Thomas’s dissent states: “In In re Rinella, 175 Ill. 2d 504 (1997), this court began its analysis by ‘reject[ing] respondent’s contention that attorney misconduct is sanctionable only when it is specifically proscribed by a disciplinary rule.’ … In doing so, this court explained that ‘the standards of professional conduct enunciated by this court are not a manual designed to instruct attorneys what to do in every conceivable situation.’ … ” He continues that the language of Supreme Court Rule 770 “would seem to state very plainly that there are two categories of conduct for which an attorney may be disciplined by the court: (1) conduct ‘which violates the Rules of Professional Conduct’ … and (2) conduct ‘which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.’”

In contrast to the majority opinion, the dissent includes under “legal ethics” all three subgroups, (a) the Rules of Professional Conduct, (b) occupational ethics (what sort of behavior the legal profession as a whole will not tolerate) and (c) personal morality (what sort of personal behavior is sanctionable).

While the law in Illinois seems settled, the analysis of the issue is not over. On the one hand, we do not want the court to be able to sanction a lawyer because of some undefined behavior that a particular panel of judges find objectionable. On the other, we do not want someone who exhibits truly reprehensible behavior - behavior that violates our general principles of occupational ethics and personal morality - to continue to practice law just because that person has not technically violated a Rule of Professional Conduct. I suspect that in a future case, the court will be able to find that the reprehensible behavior somehow violates a Rule.