By Thomas P. McGarry and Thomas P. Sukowicz
Hinshaw & Culbertson
Sometimes attorneys who are investigated by the ARDC are surprised to find that if the file is closed, they have not been exonerated or found to have been adjudicated not guilty, and that the closure of the investigation is not necessarily final.
Rule 54 of the Rules of the ARDC directs the administrator to close the investigation when he concludes that there is insufficient evidence to establish that the attorney has engaged in misconduct. Thus, the rule does not authorize the administrator to make findings of fact or determine whether a lawyer is guilty or innocent of a violation of a disciplinary rule. It only allows the administrator to make an assessment of the sufficiency of the evidence to warrant further proceedings.
Rule 54 provides that closing an investigation does not bar the administrator from resuming the investigation if circumstances warrant. When he closes an investigation, it is common for the administrator to include in the letter the language of Rule 54 regarding the reopening of the investigation.
Rule 54 does not elaborate on what is meant by "if circumstances warrant" or give an example of such circumstances. In In re Teplitz , 97 CH 94 (Review Board, Aug. 11, 1999), No. M.R. 16148 (Nov. 19, 1999), the Review Board concluded that, "[i]f new facts come to light of which the Administrator was not aware at the time the investigation was closed, the Administrator may resume the investigation."
In In re Quinlivan , 01 CH 10 (Hearing Board, March 5, 2003), No. M.R. 19653 (Nov. 17, 2004), the Hearing Board, in determining that the administrator did not waive the right to charge the attorney with misconduct related to a closed investigation, stated that the plain language of Commission Rule 54 "suggests that after an investigation is closed the Administrator can reopen it under certain circumstances, such as where there is new evidence or some other development is brought to the Administrator's attention."
There are cases in which the ARDC Hearing Board found that the administrator waived her right to proceed against an attorney at the time of the closure of the investigation.
In In re Howard , 96 CH 531 (Hearing Board, Aug. 27, 1997), No. M.R. 15103 (Sept. 28, 1998), the administrator concluded an investigation by sending a letter that did not include Rule 54 language, but stated that the administrator would not file charges, but "if the Commission receives evidence of similar future conduct, the investigation may be reopened."
Later, without evidence of subsequent similar misconduct, the administrator reopened the investigation and filed charges. After the hearing, the Board found that, although the attorney committed some misconduct, the administrator had waived the right to prosecute the attorney for that misconduct. The Board based this determination on the letter sent to the attorney, which stated in part:
"In light of your testimony to the Commission during your sworn statement . we have decided that further action on our part is not necessary. However, please be advised that if the Commission receives evidence of similar future conduct, this investigation may be reopened."
The Board interpreted that language to mean that the administrator "gave her word that if Respondent did not engage in additional similar acts of misconduct she would not be prosecuted for the conduct under investigation." Because the attorney did not engage in additional acts of misconduct, the Hearing Panel found that the administrator had waived her right to prosecute the case.
The Review Board did not address the waiver issue, having found the attorney's misconduct so minimal that a sanction was not warranted. The Supreme Court affirmed the discharge recommended by the Review Board.
In In re Schwartz , 98 CH 92 (Hearing Board, May 19, 2000), No. M.R. 17696 (Nov. 28, 2001), the Hearing Board found that the administrator waived her right to prosecute the attorney for misconduct based on the attorney's unrebutted testimony that the administrator investigated the misconduct but sent the attorney a letter closing the investigation, and took no further action for three years.
In Schwartz , the Hearing Board appears to have concluded, based on the administrator's closure of the file and subsequent inaction, that the right to prosecute the attorney was waived. The Review Board did not address the waiver issue, finding that even if the attorney was found guilty of that conduct, the recommendation for sanction wouldn't change.
In In re Hoffman , 08 SH 65 (Review Board Report, June 23, 2010), the Review Board addressed the issue of when an investigation may be reopened by the administrator.
The administrator had closed two investigations, but years later made them the basis for the allegations in two counts of a complaint filed against the attorney. One of the cases was more than three years old, so the administrator had expunged all records of that case. The other was closed with a letter containing the Rule 54 language. The Review Board found the administrator did not discover any new evidence specific to the charges in those two counts of the complaint, but determined that the language of Rule 54 is sufficiently broad to allow for resumption of the investigations.