Ethics: Pro bono practice for inactive or retired lawyers

By Thomas P. McGarry and Thomas P. Sukowicz
Hinshaw & Culbertson

On March 26, 2008, the Illinois Supreme Court entered an order amending certain Supreme Court rules pertaining to the practice of law in Illinois (M.R. 3140).

The amendments are effective as of July 1, 2008. One of the amendments modified Supreme Court Rule 756, which requires attorneys to register each year with the Attorney Registration and Disciplinary Commission and to pay the appropriate registration fee in order to be eligible to engage in the practice of law in Illinois.

Rule 756 allows attorneys to register as inactive or retired. An attorney who is currently registered as inactive or retired is not entitled to practice law or to hold himself or herself out as authorized to practice law.

The amendment creates an exception to the rule that allows attorneys on inactive or retirement status (as well as attorneys who are registered as house counsel under Rule 716) to provide pro bono legal services if there is no charge and no expectation of a fee by the attorney.

The pro bono services must be rendered to persons of limited means or to certain organizations (which are defined in paragraph (f) of the rule) and must be rendered under the auspices of a sponsoring entity. The sponsoring organization must be a not-for-profit legal services organization, governmental entity, law school clinical program, or bar association providing pro bono legal services. It is required to provide malpractice insurance coverage for any retired or inactive lawyers or house counsel participating in its pro bono program.

The sponsoring organization must submit to the administrator of the ARDC an application identifying the nature of the organization and describing the pro bono program it sponsors and in which retired or inactive lawyers or house counsel may participate. In the application, a responsible attorney is required to verify that the program will provide appropriate training and support and malpractice insurance for volunteers and that the sponsoring entity will notify the administrator as soon as any attorney authorized to provide services under this rule has ended his or her participation in the program.

A sponsoring entity is required to submit an annual statement verifying the continuation of any programs and describing any changes in programs in which retired or inactive lawyers or house counsel may participate. An attorney registered as inactive or retired or admitted as house counsel who seeks to provide pro bono services is required to submit a statement to the administrator indicating a desire to provide pro bono services, along with a verification from a sponsoring organization that the attorney will be participating in a pro bono program under its auspices.

The attorney’s statement is to include an agreement that the attorney will participate in any training required by the sponsoring organization. The attorney must also agree in the statement and that he or she will notify the administrator within 30 days of ending his or her participation in the pro bono program. Upon receiving the attorney’s statement and the sponsoring organization’s verification, the administrator will cause the master roll to reflect that the attorney is authorized to provide pro bono services.

The authorization to provide pro bono services continues until the end of the calendar year in which the statement and verification are submitted, unless the lawyer or the sponsoring organization notifies the administrator that the program or the lawyer’s participation in the program has ended.

An attorney may renew the authorization to provide pro bono services on an annual basis by submitting a statement that he or she continues to participate in a qualifying program, along with verification from the sponsoring organization that the attorney continues to participate a program under the entity’s auspices and that the attorney has taken part in any training required by the program.

Attorneys registered under retirement status who seek to provide pro bono services under the rule must register on an annual basis, but are not required to pay a registration fee. Inactive or retired attorneys are exempt from the mandatory CLE requirements of Rule 791.

Participation in the pro bono program under this rule does not affect this exemption. Such attorneys continue to be exempt, except that such attorneys shall participate in training to the extent required by the sponsoring entity.