Ethics

Trouble follows compliance failure

Thomas P. McGarry and Thomas P. Sukowicz

Hinshaw & Culbertson

December 2013

Pursuant to Illinois Supreme Court Rule 756, all nonexempt Illinois attorneys are required to register and pay a registration fee each year.

If an attorney fails to register and pay the required fee, the administrator of the Attorney Registration & Disciplinary Commission removes the attorney’s name from the master roll of attorneys on Feb. 1 of that year.

A lawyer “will be deemed not registered” even if the lawyer actually registers but fails to provide trust account information, information concerning malpractice coverage or information on voluntary pro bono service as required by Paragraphs (d), (e) and (f) of Rule 756.

In addition, Supreme Court Rule 794 requires that all nonexempt attorneys must complete 30 hours of Continuing Legal Education every two years.

Under Supreme Court Rule 796(e), a failure to comply results in the referral by the Minimum Continuing Legal Education Board to the ARDC of the names of noncompliant attorneys and the removal of those attorneys from the master roll by the ARDC.

Although the rule notes that removal from the master roll “is not a disciplinary sanction,” Rule 756(g) warns that if a lawyer whose name is removed from the master roll continues to represent clients, the lawyer “is engaged in the unauthorized practice of law and may also be held in contempt of the court.”

As a result, the lawyer must immediately stop practicing law as of the date of the attorney’s removal from the master roll.

Several attorneys have been disciplined for their continued practice of law after being removed from the master roll in violation of Rule 5.6 of the Rules of Professional Conduct, which prohibits the unauthorized practice of law.

In In re Gunzburg, 07 CH 57, M.R. 26039 (May 22), an attorney was suspended for one year, partly for the conversion of client funds, but also for engaging in the unauthorized practice of law.

The attorney’s name was stricken from the master roll for failure to register with the ARDC, but he testified that he was not aware that removal from the master roll meant that he was no longer authorized to practice law. For seven months, he continued to represent clients and to file pleadings in various pending court matters.

In In re James, 09 CH 40, M.R. 25222 (May 18, 2012), the high court suspended an attorney for six months for continuing to practice law after being notified by the ARDC that his name had been removed from the master roll for failure to register and for failing to comply with his CLE requirements.

Like the attorney in Gunzburg, he asserted that he was not aware that being removed from the master roll meant that he could not practice law — even though at least one letter from the ARDC informed him of that fact.

Not being familiar with the rules and their meanings does not excuse lawyers from having to comply with those rules.

The hearing board in James pointed out the potential for harm to the lawyer’s clients if the lawyer continues to practice law when removed from the master roll.

The board stated any proceeding instituted by a lawyer who is not authorized to practice is subject to dismissal because any pleadings signed by the removed lawyer are considered a nullity. It also noted that if the case proceeds to judgment, the judgment is considered void.

Other attorneys had received lighter sanctions for practicing after being removed from the master roll.

In In re Angarone, 09 CH 24, M.R. 23528 (Jan. 21, 2010), and In re Ambutas, 07 CH 58, M.R. 22239 (Mar. 17, 2008), the attorneys were censured for practicing law when removed from the master roll for failing to register.

In In re Gildo, 09 CH 59, M.R. 23799 (May 18, 2010), an attorney was censured and required to complete the professionalism seminar for practicing law while he was removed from the master roll for failure to comply with the CLE requirements.

In In re Wieringa, 98 CH 40 (1998), and In re Nash, 96 CH 265 (1996), attorneys were reprimanded for engaging in the practice of law while their names were removed from the master roll after they failed to register.

Other lawyers were suspended for similar conduct.

In In re DeJong, 09 CH 41, M.R. 23536 (Jan. 21, 2010), and In re Bennett, 07 CH 99, M.R. 23011 (May 18, 2009), attorneys were suspended for 30 days for continuing to represent clients after their names had been removed from the master roll for failure to register.

In In re Stephens, 08 SH 104, M.R. 23258 (Sept. 22, 2009), an attorney was suspended for 60 days for continuing to practice law after failing to register and for failing to respond to the administrator’s requests for information, making a false statement in his answer to the disciplinary complaint and making a misrepresentation to a judge about his registration status.

It pays to make sure you register each year and stay on top of your CLE requirements.