Applebaum v. Rush University Medical Center

Docket No. 105905.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

MICHAEL APPLEBAUM, Special Adm’r of the Estate of Joseph

Applebaum, Deceased, Appellant, v. RUSH UNIVERSITY

MEDICAL CENTER et al., Appellees.

Opinion filed November 20, 2008.

JUSTICE FREEMAN delivered the judgment of the court, with

opinion.

Justices Thomas, Kilbride, Garman, Karmeier, and Burke

concurred in the judgment and opinion.

Chief Justice Fitzgerald took no part in the decision.

OPINION

The circuit court of Cook County certified the following question

of law for interlocutory appeal, pursuant to Supreme Court Rule

308(a) (155 Ill. 2d R. 308(a)):

“Whether the nullity rule should be applied in a wrongful

death action where the plaintiff is an attorney who has passed

the bar and was on inactive status at the time of the filing of

the complaint, was the special administrator, sole benficiary

and son of the decedent and prior to the hearing on the motion

whose license was reinstated.”

The appellate court answered this question in the affirmative. 376

Ill. App. 3d 993. We granted leave to appeal (210 Ill. 2d R. 315). For

the reasons that follow, we answer the certified question in the

negative. Accordingly, we reverse the judgment of the appellate court

and remand this cause to the circuit court for further proceedings

consistent with this opinion.

BACKGROUND

This interlocutory appeal has its genesis in a medical malpractice

complaint filed on December 1, 2005, in the circuit court of Cook

County. Plaintiff, Michael Applebaum, filed suit as special

administrator of the estate of Joseph Applebaum, against Rush

University Medical Center and other defendants,1 seeking damages

for the estate pursuant to the Wrongful Death Act (740 ILCS 180/0.01

et seq. (West 2004)) and the Survival Act (755 ILCS 5/27–6 (West

2004)), stemming from defendants’ alleged misconduct in treating

decedent. Plaintiff is decedent’s only child and the sole beneficiary of

his estate, which had no creditors and was not opened to probate.

Plaintiff’s complaint and the damages it sought, however, were solely

in the name of the estate and not pled individually for plaintiff.

Plaintiff signed the complaint as “Attorney for Plaintiff.” The

record reveals that plaintiff is a physician who received an Illinois

license to practice law in 1988. The Attorney Registration and

Disciplinary Commission (ARDC) has no record of plaintiff ever

having been disciplined or being the subject of a public disciplinary

proceeding. Plaintiff remained on “active” status with the ARDC

until January 6, 2005, when, pursuant to our Rule 756(a)(5) (188 Ill.

1

The initial appellees in this case who filed a responsive brief to

plaintiff’s opening brief were Rush University Medical Center, individually

and d/b/a University Rheumatologists and Rush Medical College, Lawrence

Layfer, M.D., and Osama Ibrahim, M.D. Subsequently, this court has

allowed the motions of the following defendants to join this brief: Rush

North Shore Medical Center; Vadim Leyenson and Chest Medical

Consultants, S.C.; North Shore Radiology; Leonard Berlin, M.D.; Gary

Novetsky, M.D.; Mark Edelman, M.D.; Michael Racenstein, M.D.; Avrum

Epstein, M.D.; Michael Smith, M.D.; Jonathan Alexander, M.D.; Christian

Fisher, M.D.; Jose Velasco, M.D.; Alan Reich, M.D.

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2d R. 756(a)(5)), he voluntarily changed his registration to that of an

“inactive status attorney.” This change in status occurred nearly one

year prior to the filing of the medical malpractice complaint.

On April 4, 2006, plaintiff filed a first amended complaint in the

medical malpractice action, adding additional counts. Plaintiff,

however, signed this document as “Plaintiff Pro Se.” Defendants

thereafter filed, on May 31, 2006, a pleading styled “Motion to

Dismiss Based on the Plaintiff’s Unlicensed Practice of Law,”

resulting from their discovery that plaintiff–although an attorney–was

on inactive status at the time he filed the initial complaint. Defendants

maintained that “one not duly authorized to practice law may not

represent another in a court of law” and argued that, because plaintiff

was on inactive status with the ARDC, he was “not legally permitted

to bring this litigation in a representative capacity on behalf of the

estate of [decedent].” Defendants concluded, therefore, that “this

matter must be declared a nullity and dismissed with prejudice.”

The record reflects the parties’ agreement that, sometime

subsequent to the filing of defendants’ dismissal motion–yet prior to

the trial court’s hearing of this matter on August 17, 2006–plaintiff

returned to “active” status with the ARDC.

Upon conclusion of the August 17 hearing, the trial court denied

defendants’ motion to dismiss. The court agreed with defendants that

plaintiff’s inactive status precluded him from representing the estate

and that, generally, legal proceedings brought by a nonlawyer on

behalf of another may be voided under the nullity rule. The trial court,

however, disagreed with defendants that this case required application

of the nullity rule. Noting that the purpose of the nullity rule is to

protect the public against unskilled and unscrupulous persons

representing them in legal proceedings, the trial court found that the

instant medical malpractice action filed by plaintiff–who has a law

degree, who has been duly licensed in Illinois and never disciplined,

who had resumed active status with the ARDC prior to the dismissal

hearing, and who sought redress through this suit for alleged harm

suffered by his father–did not present any of the concerns intended to

be remedied by application of that rule. In addition, the court was

troubled by the fact that applying the nullity rule and dismissing the

action would foreclose any possibility of recourse for decedent’s

alleged injuries. Accordingly, the trial court refused to apply the

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nullity rule and denied defendants’ motion to dismiss. The court did

direct plaintiff, however, to file an amended complaint reflecting his

current status as an active attorney. Plaintiff complied by filing a

second amended complaint on August 28, 2006.

Defendants thereafter filed a “Motion for Rule 308 Finding,”

requesting that the trial court certify a question of law for immediate

interlocutory appeal pursuant to our Rule 308. The trial court agreed

with defendants that its prior order denying their dismissal motion

involved a question of law as to which there is a substantial ground

of difference of opinion, and that an immediate appeal may materially

advance the ultimate termination of the litigation. Accordingly, the

trial court certified its question for interlocutory appeal.

In applying the nullity rule and reversing the actions of the circuit

court, the appellate court held:

“Where a plaintiff proceeding pro se was formerly licensed to

practice law, but is voluntarily on inactive status pursuant to

Illinois Supreme Court Rule 756(a)(5) [citation] at the time of

the filing of a complaint under the Wrongful Death Act, he or

she is not authorized to practice law and the nullity rule

applies even though plaintiff returned to active status prior to

a hearing on a motion to dismiss the complaint as a nullity.”

376 Ill. App. 3d at 993.

In arriving at this conclusion, the appellate court relied principally

upon Fruin v. Northwestern Medical Faculty Foundation, Inc., 194

Ill. App. 3d 1061 (1990), which upheld the dismissal of a medical

malpractice complaint based upon the nullity rule, where that

complaint was signed and filed by an attorney located and licensed

only in Wisconsin. The appellate court held that Fruin was factually

analogous to the instant matter, as plaintiff “was not licensed” in

Illinois, yet, nevertheless, filed a complaint “in violation of the plain

letter of the law.” 376 Ill. App. 3d at 999. Although the court

acknowledged that “[t]here is no doubt that the nullity rule is harsh,”

it noted that “the law is clear that only a licensed attorney may

represent another party” (376 Ill. App. 3d at 999), and held that “there

are no unique circumstances present to justify a deviation from the

rule” (376 Ill. App. 3d at 1000).

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This court allowed plaintiff’s petition for leave to appeal. 210 Ill.

2d R. 315. We also allowed the Illinois Trial Lawyers Association

leave to file a brief amicus curiae. 210 Ill. 2d R. 345.

ANALYSIS

The certified question requires us to determine whether the

application of the nullity rule is appropriate under the facts presented

in this case. In Ford Motor Credit Co. v. Sperry, 214 Ill. 2d 371

(2005), we recently explained that the nullity–or voidness–rule

“is grounded in the fact that there are risks to individual

clients and to the integrity of the legal system inherent in

representation by an unlicensed person: The purpose of the

nullity ‘rule is *** to protect litigants against the mistakes of

the ignorant and the schemes of the unscrupulous and to

protect the court itself in the administration of its proceedings

from those lacking requisite skills.’ ” Sperry, 214 Ill. 2d at

389-90, quoting Janiczek v. Dover Management Co., 134 Ill.

App. 3d 543, 546 (1985).

Accordingly, where a person who is not licensed to practice law in

Illinois attempts to represent another party in legal proceedings, this

rule permits dismissal of the cause, thereby treating the particular

actions taken by that person as a nullity. Sperry, 214 Ill. 2d at 390.

Although the nullity rule is well established in our courts, because the

results of its application are harsh it should be invoked only where it

fulfills its purposes of protecting both the public and the integrity of

the court system from the actions of the unlicensed, and where no

other alternative remedy is possible. See Sperry, 214 Ill. 2d at 380,

390-91; see also, e.g., Pratt-Holdampf v. Trinity Medical Center, 338

Ill. App. 3d 1079, 1085 (2003) (complaint improperly dismissed

under the nullity rule where “risks to individual clients and to the

integrity of the legal system inherent in representation by a person

who has never qualified to practice law” not present); Ratcliffe v.

Apantaku, 318 Ill. App. 3d 621, 626 (2000) (voiding a wrongful-death

and survival action brought in a representative capacity by a pro se

plaintiff who was a layperson and not an attorney licensed to practice

law).

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This case presents the specific question of whether it is proper to

apply the nullity rule to void a complaint filed by a licensed attorney

who, at the time of filing, was on “inactive attorney status” with the

ARDC, and who is representing the estate of his deceased father, is

the estate’s special administrator, and is the sole beneficiary of the

decedent. In order to answer this question, we must first determine

the meaning of “inactive attorney status.” We must, therefore,

construe our Rule 756, which, at the time plaintiff filed the

challenged lawsuit,2 provided, in pertinent part:

“Rule 756. Registration and Fees

(a) Annual Registration Required. Except as hereinafter

provided, every attorney admitted to practice law in this State

shall register and pay an annual registration fee to the

[Attorney Registration and Disciplinary] Commission on or

before the first day of January. ***

***

(5) An attorney may advise the Administrator [of the

ARDC] in writing that he or she desires to assume

inactive status and, thereafter, register as an inactive

status attorney. The annual registration fee for an inactive

status attorney shall be $90.[3] Upon such registration, the

attorney shall be placed upon inactive status and shall no

longer be eligible to practice law or hold himself or

herself out as being authorized to practice law in this

2

This court has amended Rule 756 on several occasions subsequent to

December 1, 2005, the date plaintiff filed the medical malpractice action

at issue in this appeal. In this opinion, we set forth the version of the rule

applicable to plaintiff at the time of the questioned conduct, and which is

controlling. However, where appropriate, we also note the differences

between that version and the current version of the rule.

3

The current annual registration fee for an inactive status attorney is

$105. Official Reports Advance Sheet No. 20 (September 27, 2006), R.

756(a)(5), eff. September 14, 2006.

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State.[4] An attorney who is on the master roll as an

inactive status attorney may advise the Administrator in

writing that he or she desires to resume the practice of

law, and thereafter register as active upon payment of the

registration fee required under this rule.[5] If the attorney

returns from inactive status after having paid the inactive

status fee for the year, the attorney shall pay the difference

between the inactive status registration fee and the

registration fee required [under this rule]. ***

***

(b) The Master Roll. The Administrator shall prepare a

master roll of attorneys consisting of the names of attorneys

who have registered and have paid or are exempt from paying

the registration fee. *** An attorney who is not listed on the

master roll is not entitled to practice law or to hold himself

out as authorized to practice law in this State. An attorney

listed on the master roll as on inactive *** status shall not be

entitled to practice law or to hold himself or herself out as

authorized to practice law in Illinois.” 188 Ill. 2d Rs. 756

(a)(5), (b).

We construe our rules in the same manner as we construe statutes

(134 Ill. 2d R. 2; Vision Point of Sale, Inc. v. Haas, 226 Ill. 2d 334,

342 (2007)), and our review is de novo (Townsend v. Sears, Roebuck

& Co., 227 Ill. 2d 147, 153 (2007)).

4

This court has recently amended Rule 756 by adding a new subsection

(j), which provides that an attorney on inactive status may be authorized to

provide pro bono legal services upon satisfaction of a set of specific

conditions. Official Reports Advance Sheet No. 8 (April 9, 2008), Rs.

756(a)(5), (j), eff. July 1, 2008.

5

The current version of this rule provides that in order to resume active

status, an attorney must also submit verification that he or she has complied

with the Minimum Continuing Legal Education (MCLE) requirements as

set forth in Rule 791(e). In turn, Rule 791(e) provides that an attorney

returning to active status from inactive status has 24 months from the date

of resuming active status in which to complete the MCLE requirements.

210 Ill. 2d Rs. 756(a)(5), 791(e).

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In the instant matter, the parties dispute what, if any, effect

plaintiff’s change in registration status from “active” to

“inactive”–and his resultant “ineligibility” to practice law while

maintaining “inactive” status–had upon his credentials and previously

obtained license to practice law, and whether, under such

circumstances, the nullity rule applies to void his complaint. Plaintiff

contends that the appellate court erroneously answered the certified

question by holding that the nullity rule mandates the voiding of an

otherwise-valid complaint filed by a duly licensed Illinois attorney

listed on the master roll of attorneys who was temporarily ineligible

to practice law due to payment of the lesser inactive-status fee.

Plaintiff maintains that application of the harsh nullity rule to the

specific facts presented is unprecedented and unwarranted, and that

if he should suffer any adverse consequences as a result of his actions,

the reasonable alternative remedy is to submit this matter to the

ARDC and its disciplinary process. Defendants counter that the

appellate court’s answer to the certified question was correct–and that

plaintiff’s lawsuit should be dismissed as a nullity–because plaintiff’s

ineligibility to practice law due to his inactive status operates as the

equivalent of plaintiff being unlicensed to practice law in this state.

We disagree. The arguments advanced by defendants–and the holding

of the appellate court below–find no support in the overall scheme of

our rules, the plain language of Rule 756, or our prior precedent.

Therefore, we agree with the position taken by plaintiff.

It has long been settled that the inherent power to define and

regulate the practice of law in this state resides in this court. Sperry,

214 Ill. 2d at 382; People ex rel. Chicago Bar Ass’n v. Goodman, 366

Ill. 346, 349 (1937). As we recently explained in Sperry:

“To this end, our court has promulgated rules which set

forth detailed regulations for the study of law and which

govern the admission of applicants to our state bar. See 134

Ill. 2d Rs. 701 through 720. This court has also created a

comprehensive scheme to regulate attorneys and discipline

them for misconduct. As part of this regulatory scheme, we

have promulgated rules of professional conduct for state-

licensed attorneys (see 134 Ill. 2d Rs. 1.1 through 8.5), and

have constituted an Attorney Registration and Disciplinary

Commission (ARDC) (134 Ill. 2d R. 751), and created the

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office of an Administrator (134 Ill. 2d R. 752) to supervise

‘[t]he registration of, and disciplinary proceedings affecting,

members of the Illinois bar.’ 134 Ill. 2d R. 751(a). In addition,

this court has promulgated detailed rules which prescribe the

appropriate discipline when the Rules of Professional

Conduct are violated. See 134 Ill. 2d Rs. 751 through 775;

137 Ill. 2d Rs. 776, 777; 188 Ill. 2d R. 778; 155 Ill. 2d R. 780.

This court has also created a procedural framework within

which the ARDC performs its duties to investigate complaints

of misconduct against licensed attorneys, hold hearings on

those complaints, and provide review of the findings with

respect to those complaints. 166 Ill. 2d R. 753.” Sperry, 214

Ill. 2d at 382-83.

We further explained in Sperry that our rules work in tandem to

ensure that “only those individuals who are fit and qualified to

practice law will be licensed in this state, that those individuals will

practice law ethically and with competence, and that any infractions

of the Rules of Professional Conduct will be investigated and

discipline will be imposed if appropriate.” Sperry, 214 Ill. 2d at 383.

Rule 756 operates as part of this overall scheme by providing the

mechanism for facilitating the annual registration and payment of fees

by “every attorney admitted to practice law in this State.” 188 Ill. 2d

R. 756(a), see also Ill. Ann. Stat., ch. 110A, par. 756, Historical &

Practice Notes, at 628 (Smith-Hurd 1985) (Rule 756 “provides for the

registration of all attorneys in the state and for the imposition on the

members of the Illinois bar of the fees required to maintain the

disciplinary system established by the rules”). Thus, under the plain

language of this rule, it necessarily follows that those persons who are

subject to its provisions have already satisfied all fitness and

competency requirements for admission to the Illinois bar. Therefore,

because every individual governed by Rule 756 has already been

deemed qualified to practice law by virtue of their prior Illinois

licensure, it is apparent that this specific rule is not primarily intended

to protect the public from harm caused by unlicensed or incompetent

individuals. Rather, it is clear that the central purpose of this

particular rule is to establish an administrative framework for the

annual registration of attorneys licensed in Illinois and to set forth a

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graduated annual fee collection schedule, based upon the attorney’s

ARDC registration status.

An attorney wishing to change his or her ARDC registration

status from “active” to that of “an inactive status attorney” must

follow the procedures set forth in subsection (a)(5) of Rule 756. Even

though “inactive,” the attorney must still pay an annual registration

fee, although it is reduced to reflect the change in status. In addition,

the name of the attorney remains on the master roll, although it is

accompanied by the designation that the person is on “inactive”

status. The rule provides that for the period the attorney remains on

inactive status, he or she “shall no longer be eligible to practice law

or hold himself or herself out as being authorized to practice law in

this state.” Rule 756(a)(5) further provides that an “inactive”

attorney may return to “active” status at any time. Under the version

of the rule applicable in this case, in order to do so, the attorney

simply needed to “advise the Administrator in writing that he or she

desires to resume the practice of law, and thereafter register as active

upon payment of the registration fee required under this rule.”6 The

amount of the required fee depends upon whether the attorney had

already paid the “inactive” status registration fee for the year, and the

difference between that amount and the applicable “active”

registration fee. Significantly, an attorney returns to active status

instantly upon paying the fee difference specified in the rule.

Both the appellate court, in its opinion below, and defendants, in

their arguments to this court, take the position that an attorney who

is no longer “eligible” to practice law while on inactive status

pursuant to Rule 756(a)(5) becomes the equivalent of a person who

is “unlicensed” to practice law. The plain language of Rule 756,

however, clearly refutes such a claim. Although a change in ARDC

registration status from “active” to “inactive” is accompanied by a

restriction in the attorney’s practice to the extent that he or she “shall

no longer be eligible to practice law” while on inactive status, it is a

fundamental error to equate such a status change with stripping the

6

As noted, the current version of this rule now also requires subsequent

verification that the applicable MCLE requirements have been met within

24 months after the attorney returns to active status. 210 Ill. 2d Rs.

756(a)(5), 791(e).

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attorney of his or her license to practice law. A change in an

individual’s ARDC registration status has no relation to, and does

not call into question, that person’s skill, fitness or competency to

practice law, which is assured through his or her initially meeting the

requirements to obtain–and thereafter to retain–a valid license to

practice law.

The fundamental difference between an individual who has

satisfied the licensing requirement–but runs afoul of a technical or

administrative rule–and a person who has no license to practice law

was highlighted in People v. Brigham, 151 Ill. 2d 58 (1992). In that

case, the attorney representing Brigham had been removed from the

master roll of attorneys pursuant to Rule 756(d), due to his failure to

pay his annual ARDC registration fee. In his postconviction petition,

Brigham contended that his sixth amendment right to counsel had

been violated because his attorney had been engaged in the

unauthorized practice of law as a result of his removal from the

master roll, which thereby invalidated the attorney’s status as

“counsel.” The State countered that the failure of Brigham’s attorney

“to satisfy technical licensing requirements” should not be construed

so as to void an otherwise valid judgment, because “[s]uch a

shortcoming does not render [counsel’s] advice ill or his

representation ineffective.” Brigham, 151 Ill. 2d at 62-63.

In agreeing with the State’s position on this issue of first

impression in Illinois, we held that there is “an important distinction

between (1) an unlicensed person (e.g., an imposter or a disbarred

attorney), and (2) an attorney admitted to practice but under

suspension for nonpayment of State bar dues.” Brigham, 151 Ill. 2d

at 67. We found to be persuasive decisions from other jurisdictions

which held that representation of a criminal defendant by an

unlicensed individual constituted denial of the sixth amendment right

to counsel, whereas representation by a licensed member of the

bar–even if his or her practice was restricted as a consequence of a

failure to satisfy technical or administrative requirements–did not.

Brigham, 151 Ill. 2d at 64-67 (quoting Reese v. Peters, 926 F.2d 668,

669-70 (7th Cir. 1991) (“Lawyers who do not pay their dues violate

a legal norm, but not one established for the protection of clients”),

Johnson v. State, 225 Kan. 458, 465, 590 P.2d 1082, 1087 (1979)

(“Although the payment of the registration fee is a prerequisite to the

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ethical practice of law in this state, the payment itself has nothing to

do with the legal ability of the attorney. Just as the payment of the fee

does not guarantee that an attorney will practice law in a competent

manner, the nonpayment of the fee does not necessarily imply that the

nonpaying attorney will perform in an incompetent manner”), and

Hill v. State, 393 S.W.2d 901, 904 (Tex. Crim. App. 1965) (Although

a delinquent attorney is “prohibited” from practicing law, “[h]e only

has to pay his dues *** to resume his status as a ‘practicing lawyer,’ ”

and he has not thereby become unlicensed (emphasis omitted)).

In rejecting Brigham’s claim, we made it clear that a technical

defect in the registration status of a duly licensed attorney was

distinguishable from a situation where “the representative has either

failed to obtain a law license, has obtained a license through

fraudulent means, or has had his license revoked for reasons to do

with his competency as an attorney.” Brigham, 151 Ill. 2d at 67. We

concluded that

“[defense counsel’s] admission to the bar allows us to assume

that he has the training, knowledge, and ability to represent a

client who has chosen him, and that he has attained the ability

to render effective assistance to defendant at trial,

notwithstanding his suspension for failure to pay his

registration dues. To find a defendant’s sixth amendment right

to counsel to have been violated, there must be additional

factors above and beyond a mere suspension for nonpayment

of bar dues.” Brigham, 151 Ill. 2d at 70-71.

We cited Brigham as instructive in our subsequent decision in

Sperry, where we held that the nullity rule had been erroneously

applied to void a judgment awarding attorneys fees to a law firm that

was not registered as a professional services corporation pursuant to

our Rule 721(c). Sperry, 214 Ill. 2d at 391. As in Brigham, we

emphasized in Sperry that “there is a fundamental difference between

an unlicensed individual representing a party in legal proceedings or

performing activities traditionally considered to be the ‘practice of

law’ and duly licensed attorneys who happen to belong to a law firm

that has not filed its registration and paid its fees pursuant to Rule

721(c).” Sperry, 214 Ill. 2d at 387. We held that the “material inquiry

in assessing whether there has been an unauthorized practice of law

is whether the individual who acts on behalf of a client is duly

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licensed by this court” (Sperry, 214 Ill. 2d at 387), and that “[a] duly

licensed attorney who belongs to a firm that lacks Rule 721(c)

registration does not, by virtue of the unregistered nature of the firm,

engage in the unauthorized practice of law” (Sperry, 214 Ill. 2d at

391). Accordingly, as no harm to the public or to the integrity of the

court system was presented by the firm’s lack of registration, we

concluded that the nullity rule had been erroneously applied. Sperry,

214 Ill. 2d at 391.

In light of the framework of our rules, the plain language of Rule

756(a)(5), and our precedent as set forth in Brigham and Sperry, we

reject the argument advanced by defendants, based upon the holding

of the appellate court below, that plaintiff’s inactive status is the

equivalent of plaintiff being unlicensed, and that his filing of the

complaint in this action constitutes the unlicensed practice of law

calling for application of the harsh sanction of the nullity rule to void

his actions. Indeed, we note that this case has proceeded from the

outset upon the faulty premise that plaintiff–because he was

registered as an inactive status attorney–was therefore unlicensed to

practice law in this state. Defendants’ dismissal motion in the trial

court was stylized as a “Motion to Dismiss Based on the Plaintiff’s

Unlicensed Practice of Law.” (Emphasis added.) Although the trial

court rejected defendants’ argument and denied their dismissal

motion, it thereafter certified the question before us, which contains

the misstatement that plaintiff’s “license was reinstated” (emphasis

added) when he resumed active registration status upon paying the fee

differential. As we have explained above, a simple change in ARDC

registration status does not affect an attorney’s license. The term

“reinstated” is used in our rules in connection with the completely

different situation where an attorney seeks to return to practice after

having been disbarred or suspended. See 210 Ill. 2d R. 767.

The appellate court perpetuated this error by incorrectly stating,

in its answer to the certified question, that plaintiff was “formerly

licensed” to practice law, referring to the time he was registered as

being on active status. In explaining its reasoning in support of its

answer to the certified question, the appellate court stated that it had

found the decision in Fruin to be factually analogous, because, like

the Wisconsin attorney in that case who was unlicensed in Illinois,

plaintiff also “was not licensed” in Illinois due to being on inactive

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status. 376 Ill. App. 3d at 999. In addition, the appellate court found

Sperry to be distinguishable–and therefore not controlling–because

in this case there is “no licensed attorney, only the unauthorized

practice of law.” 376 Ill. App. 3d at 399. The appellate court

concluded that plaintiff had filed a complaint “in violation of the

plain letter of the law,” which “is clear that only a licensed attorney

may represent another party.” 376 Ill. App. 3d at 999. Finally, just as

the trial court improperly used the term “reinstated” to refer to

plaintiff’s change in registration status from inactive to active, the

appellate court also erroneously observed that plaintiff “petitioned for

reinstatement” and “was reinstated” to active status upon payment of

the appropriate fee.

In their arguments to this court, defendants continue to

erroneously use these terms and concepts. For example, in their brief,

they maintain that once plaintiff registered with the ARDC as an

inactive-status attorney, he was “therefore ineligible to practice law;

thus he did not seek, much less obtain, the requisite license to actually

practice,” and erroneously assert that “[w]hatever plaintiff had by

virtue of registering as ‘inactive,’ it most certainly was not a license

allowing him to practice law.” In addition, at oral argument, when

squarely asked if plaintiff’s registration as an inactive-status attorney

is equivalent to plaintiff being unlicensed, counsel for defendants

replied “yes.”

We emphasize that an individual who has (i) graduated from law

school; (ii) satisfied this court’s character and fitness requirements;

(iii) passed the bar examination; and (iv) obtained a license to

practice law in this state does not become “unlicensed” by simply

choosing to change his or her ARDC registration status from active

to inactive. Although Rule 756(a)(5) provides that an attorney on

inactive status “shall no longer be eligible to practice law or hold

himself or herself out as being authorized to practice law,” this

limitation on practice for the duration one chooses to remain on

inactive status does not mean that this person is thereby stripped of

his or her law license. Even though plaintiff was on inactive

registration status with the ARDC when he filed the medical

malpractice complaint at issue in this appeal in December 2005, he

remained–at all times–a licensed and registered member of the

Illinois bar throughout the duration of this case. As noted, the lower

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courts in this case employed many terms imprecisely in this action.

We caution our courts that such terms must always be used with

careful precision.

As discussed, in light of the specific facts in this case, we hold

that the purposes served by applying the nullity rule–the protection of

the public and the integrity of the court system from the harm

presented by representation by unlicensed individuals–are not present

here. Accordingly, the appellate court erred in concluding that the

nullity rule should be imposed in this case.

We do note, however, that although plaintiff at all times remained

licensed, Rule 756(a)(5) provides that he was no longer “eligible” to

practice law on the date he filed the medical malpractice complaint

by virtue of the fact that he was on inactive status. It is well settled

that our rules are not mere suggestions; rather “ ‘[t]hey have the force

of law, and the presumption must be that they will be obeyed and

enforced as written.’ ” People v. Houston, 226 Ill. 2d 135, 152 (2007),

quoting Bright v. Dicke, 166 Ill. 2d 204, 210 (1995). Attorneys are not

free to ignore our rules, and, if they are found to have violated these

precepts, they will be subject to appropriate discipline.

Here, it is undisputed that plaintiff represented no other clients

while on inactive status apart from his father’s estate and that plaintiff

was the real party in interest, given that he was decedent’s sole heir

and next-of-kin, and that the estate had no creditors. In other words,

plaintiff at no time offered legal services to the public or engaged in

the practice of law on behalf of any real party in interest other than

himself. Thus, although plaintiff did not comply with the technical

provisions of the rule, it is less certain whether he violated its spirit

in light of our recognition in the past of exceptions to the rule and our

recent amendment to the rule. The current version of Rule 756 now

authorizes attorneys on inactive status to provide pro bono legal

services to persons of limited means or to charitable, civic and similar

organizations, under the auspices of a sponsoring entity. Official

Reports Advance Sheet No. 8 (April 9, 2008), Rs. 756(a)(5), (j), eff.

July 1, 2008. This amendment allows attorneys on inactive status to

represent members of the general public under specified

circumstances, permitting a broader spectrum of practice for inactive

attorneys than what plaintiff performed here, which was limited to his

own family situation and for his own benefit. We also note that

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plaintiff cured this defect prior to the hearing on defendants’

dismissal motion by simply paying the difference between the

registration fees assessed to inactive- and active-status lawyers,

whereupon he was immediately and automatically returned to active

status without having to reestablish his fitness or qualifications to

practice law.

Although plaintiff failed to comply with our rule regarding annual

registration and the payment of fees, this specific infraction, however,

does not warrant the imposition of the harsh nullity rule. As

explained, dismissal of this cause would not serve to further the

purposes of the nullity rule, the specific issue presented in this appeal.

CONCLUSION

For the foregoing reasons, we answer the certified question in the

negative. Accordingly, we reverse the judgment of the appellate court.

We remand this cause to the circuit court for further proceedings

consistent with this opinion.

Reversed and remanded.

CHIEF JUSTICE FITZGERALD took no part in the consideration

or decision of this case.

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