# IL. R. Ct.: Rule . Preamble and Scope

> Illinois · Court rules · In force

URL: https://www.frixlaw.com/law-library/statutes/SRULES_IL_TVIII_R

## Section

- **Citation:** IL. R. Ct.
- **Heading:** Rule . Preamble and Scope
- **Jurisdiction:** Illinois
- **Kind:** Court rules
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** IL Court Rules / Title VIII / Rule 

## Text

M.R. 3140
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
Order entered July 1, 2009.
Effective January 1, 2010, the provisions of the Illinois Rules of Professional
Conduct will be repealed and replaced by the following Illinois Rules of Professional
Conduct of 2010.
ARTICLE VIII. ILLINOIS RULES OF PROFESSIONAL CONDUCT
OF 2010
Preamble: a Lawyer’s Responsibilities
[1] A lawyer, as a member of the legal profession, is a representative of clients,
an officer of the legal system and a public citizen having special responsibility for the
quality of justice.
[2] As a representative of clients, a lawyer performs various functions. As
advisor, a lawyer provides a client with an informed understanding of the client’s
legal rights and obligations and explains their practical implications. As advocate, a
lawyer zealously asserts the client’s position under the rules of the adversary system.
As negotiator, a lawyer seeks a result advantageous to the client but consistent with
requirements of honest dealings with others. As an evaluator, a lawyer acts by
examining a client’s legal affairs and reporting about them to the client or to others.
[3] In addition to these representational functions, a lawyer may serve as a third-
party neutral, a nonrepresentational role helping the parties to resolve a dispute or
other matter. Some of these Rules apply directly to lawyers who are or have served
as third-party neutrals. See, e.g., Rules 1.12 and 2.4. In addition, there are Rules that
apply to lawyers who are not active in the practice of law or to practicing lawyers
even when they are acting in a nonprofessional capacity. For example, a lawyer who
commits fraud in the conduct of a business is subject to discipline for engaging in
conduct involving dishonesty, fraud, deceit or misrepresentation. See Rule 8.4.
[4] In all professional functions a lawyer should be competent, prompt and
diligent. A lawyer should maintain communication with a client concerning the
even when they are acting in a nonprofessional capacity. For example, a lawyer who
commits fraud in the conduct of a business is subject to discipline for engaging in
conduct involving dishonesty, fraud, deceit or misrepresentation. See Rule 8.4.
[4] In all professional functions a lawyer should be competent, prompt and
diligent. A lawyer should maintain communication with a client concerning the

representation. A lawyer should keep in confidence information relating to
representation of a client except so far as disclosure is required or permitted by the
Rules of Professional Conduct or other law.
[5] A lawyer’s conduct should conform to the requirements of the law, both in
professional service to clients and in the lawyer’s business and personal affairs. A
lawyer should use the law’s procedures only for legitimate purposes and not to harass
or intimidate others. A lawyer should demonstrate respect for the legal system and
for those who serve it, including judges, other lawyers and public officials. While it
is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is
also a lawyer’s duty to uphold legal process.
[6] As a public citizen, a lawyer should seek improvement of the law, access to
the legal system, the administration of justice and the quality of service rendered by
the legal profession. As a member of a learned profession, a lawyer should cultivate
knowledge of the law beyond its use for clients, employ that knowledge in reform of
the law and work to strengthen legal education. In addition, a lawyer should further
the public’s understanding of and confidence in the rule of law and the justice system
because legal institutions in a constitutional democracy depend on popular
participation and support to maintain their authority.
[6A] It is also the responsibility of those licensed as officers of the court to use
their training, experience, and skills to provide services in the public interest for
which compensation may not be available
of and confidence in the rule of law and the justice system
because legal institutions in a constitutional democracy depend on popular
participation and support to maintain their authority.
[6A] It is also the responsibility of those licensed as officers of the court to use
their training, experience, and skills to provide services in the public interest for
which compensation may not be available. It is the responsibility of those who
manage law firms to create an environment that is hospitable to the rendering of a
reasonable amount of uncompensated service by lawyers practicing in that firm.
Service in the public interest may take many forms. These include but are not limited
to pro bono representation of persons unable to pay for legal services and assistance
in the organized bar’s efforts at law reform. An individual lawyer’s efforts in these
areas is evidence of the lawyer’s good character and fitness to practice law, and the
efforts of the bar as a whole are essential to the bar’s maintenance of professionalism.
To help monitor and quantify the extent of these activities, and to encourage an
increase in the delivery of legal services to persons of limited means, Illinois
Supreme Court Rule 756(f) requires disclosure with each lawyer’s annual registration
with the Illinois Attorney Registration and Disciplinary Commission of the
approximate amount of his or her pro bono legal service and the approximate amount
of qualified monetary contributions. See also Committee Comment (June 14, 2006)
to Illinois Supreme Court Rule 756(f).
[6B] The absence from the Illinois Rules of a counterpart to ABA Model Rule 6.1
regarding pro bono and public service should not be interpreted as limiting the
responsibility of lawyers to render uncompensated service in the public interest.
Rather, the rationale is that this responsibility is not appropriate for disciplinary rules
because it is not possible to articulate an appropriate disciplinary standard regarding
pro bono and public service
nterpart to ABA Model Rule 6.1
regarding pro bono and public service should not be interpreted as limiting the
responsibility of lawyers to render uncompensated service in the public interest.
Rather, the rationale is that this responsibility is not appropriate for disciplinary rules
because it is not possible to articulate an appropriate disciplinary standard regarding
pro bono and public service.
[7] Many of a lawyer’s professional responsibilities are prescribed in the Rules
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of Professional Conduct, as well as substantive and procedural law. However, a
lawyer is also guided by personal conscience and the approbation of professional
peers. A lawyer should strive to attain the highest level of skill, to improve the law
and the legal profession and to exemplify the legal profession’s ideals of public
service.
[8] A lawyer’s responsibilities as a representative of clients, an officer of the legal
system and a public citizen are usually harmonious. Thus, when an opposing party
is well represented, a lawyer can be a zealous advocate on behalf of a client and at
the same time assume that justice is being done. So also, a lawyer can be sure that
preserving client confidences ordinarily serves the public interest because people are
more likely to seek legal advice, and thereby heed their legal obligations, when they
know their communications will be private.
[9] In the nature of law practice, however, conflicting responsibilities are
encountered. Virtually all difficult ethical problems arise from conflict between a
lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own
interest in remaining an ethical person while earning a satisfactory living. The Rules
of Professional Conduct often prescribe terms for resolving such conflicts. Within
the framework of these Rules, however, many difficult issues of professional
discretion can arise. Such issues must be resolved through the exercise of sensitive
professional and moral judgment guided by the basic principles underlying the Rules
aining an ethical person while earning a satisfactory living. The Rules
of Professional Conduct often prescribe terms for resolving such conflicts. Within
the framework of these Rules, however, many difficult issues of professional
discretion can arise. Such issues must be resolved through the exercise of sensitive
professional and moral judgment guided by the basic principles underlying the Rules.
These principles include the lawyer’s obligation zealously to protect and pursue a
client’s legitimate interests, within the bounds of the law, while maintaining a
professional, courteous and civil attitude toward all persons involved in the legal
system.
[10] The legal profession is largely self-governing. Although other professions
also have been granted powers of self-government, the legal profession is unique in
this respect because of the close relationship between the profession and the
processes of government and law enforcement. This connection is manifested in the
fact that ultimate authority over the legal profession is vested largely in the courts.
[11] To the extent that lawyers meet the obligations of their professional calling,
the occasion for government regulation is obviated. Self-regulation also helps
maintain the legal profession’s independence from government domination. An
independent legal profession is an important force in preserving government under
law, for abuse of legal authority is more readily challenged by a profession whose
members are not dependent on government for the right to practice.
[12] The legal profession’s relative autonomy carries with it special
responsibilities of self-government. The profession has a responsibility to assure that
its regulations are conceived in the public interest and not in furtherance of parochial
or self-interested concerns of the bar. Every lawyer is responsible for observance of
the Rules of Professional Conduct. A lawyer should also aid in securing their
observance by other lawyers
utonomy carries with it special
responsibilities of self-government. The profession has a responsibility to assure that
its regulations are conceived in the public interest and not in furtherance of parochial
or self-interested concerns of the bar. Every lawyer is responsible for observance of
the Rules of Professional Conduct. A lawyer should also aid in securing their
observance by other lawyers. Neglect of these responsibilities compromises the
independence of the profession and the public interest which it serves.
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[13] Lawyers play a vital role in the preservation of society. The fulfillment of
this role requires an understanding by lawyers of their relationship to our legal
system. The Rules of Professional Conduct, when properly applied, serve to define
that relationship.
SCOPE
[14] The Rules of Professional Conduct are rules of reason. They should be
interpreted with reference to the purposes of legal representation and of the law itself.
Some of the Rules are imperatives, cast in the terms “shall” or “shall not.” These
define proper conduct for purposes of professional discipline. Others, generally cast
in the term “may,” are permissive and define areas under the Rules in which the
lawyer has discretion to exercise professional judgment. No disciplinary action
should be taken when the lawyer chooses not to act or acts within the bounds of such
discretion. Other Rules define the nature of relationships between the lawyer and
others. The Rules are thus partly obligatory and disciplinary and partly constitutive
and descriptive in that they define a lawyer’s professional role. Many of the
Comments use the term “should.” Comments and the Preamble and Scope do not add
obligations to the Rules but provide guidance for practicing in compliance with the
Rules.
[15] The Rules presuppose a larger legal context shaping the lawyer’s role. That
context includes court rules and statutes relating to matters of licensure, laws
defining specific obligations of lawyers and substantive and procedural law in
general
erm “should.” Comments and the Preamble and Scope do not add
obligations to the Rules but provide guidance for practicing in compliance with the
Rules.
[15] The Rules presuppose a larger legal context shaping the lawyer’s role. That
context includes court rules and statutes relating to matters of licensure, laws
defining specific obligations of lawyers and substantive and procedural law in
general. The Comments are sometimes used to alert lawyers to their responsibilities
under such other law.
[16] Compliance with the Rules, as with all law in an open society, depends
primarily upon understanding and voluntary compliance, secondarily upon
reinforcement by peer and public opinion and finally, when necessary, upon
enforcement through disciplinary proceedings. The Rules do not, however, exhaust
the moral and ethical considerations that should inform a lawyer, for no worthwhile
human activity can be completely defined by legal rules. The Rules simply provide
a framework for the ethical practice of law.
[17] Furthermore, for purposes of determining the lawyer’s authority and
responsibility, principles of substantive law external to these Rules determine
whether a client-lawyer relationship exists. Most of the duties flowing from the
client-lawyer relationship attach only after the client has requested the lawyer to
render legal services and the lawyer has agreed to do so. But there are some duties,
such as that of confidentiality under Rule 1.6, that attach when the lawyer agrees to
consider whether a client-lawyer relationship shall be established. See Rule 1.18.
Whether a client-lawyer relationship exists for any specific purpose can depend on
the circumstances and may be a question of fact.
[18] Under various legal provisions, including constitutional, statutory and
common law, the responsibilities of government lawyers may include authority
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h when the lawyer agrees to
consider whether a client-lawyer relationship shall be established. See Rule 1.18.
Whether a client-lawyer relationship exists for any specific purpose can depend on
the circumstances and may be a question of fact.
[18] Under various legal provisions, including constitutional, statutory and
common law, the responsibilities of government lawyers may include authority
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concerning legal matters that ordinarily reposes in the client in private client-lawyer
relationships. For example, a lawyer for a government agency may have authority on
behalf of the government to decide upon settlement or whether to appeal from an
adverse judgment. Such authority in various respects is generally vested in the
attorney general and the state’s attorney in state government, and their federal
counterparts, and the same may be true of other government law officers. Also,
lawyers under the supervision of these officers may be authorized to represent several
government agencies in intragovernmental legal controversies in circumstances
where a private lawyer could not represent multiple private clients. These Rules do
not abrogate any such authority.
[19] Failure to comply with an obligation or prohibition imposed by a Rule is a
basis for invoking the disciplinary process. The Rules presuppose that disciplinary
assessment of a lawyer’s conduct will be made on the basis of the facts and
circumstances as they existed at the time of the conduct in question and in
recognition of the fact that a lawyer often has to act upon uncertain or incomplete
evidence of the situation. Moreover, the Rules presuppose that whether or not
discipline should be imposed for a violation, and the severity of a sanction, depend
on all the circumstances, such as the willfulness and seriousness of the violation,
extenuating factors and whether there have been previous violations
n
recognition of the fact that a lawyer often has to act upon uncertain or incomplete
evidence of the situation. Moreover, the Rules presuppose that whether or not
discipline should be imposed for a violation, and the severity of a sanction, depend
on all the circumstances, such as the willfulness and seriousness of the violation,
extenuating factors and whether there have been previous violations.
[20] Violation of a Rule should not itself give rise to a cause of action against a
lawyer nor should it create any presumption in such a case that a legal duty has been
breached. In addition, violation of a Rule does not necessarily warrant any other
nondisciplinary remedy, such as disqualification of a lawyer in pending litigation.
The Rules are designed to provide guidance to lawyers and to provide a structure for
regulating conduct through disciplinary agencies. They are not designed to be a basis
for civil liability. Furthermore, the purpose of the Rules can be subverted when they
are invoked by opposing parties as procedural weapons. The fact that a Rule is a just
basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the
administration of a disciplinary authority, does not imply that an antagonist in a
collateral proceeding or transaction has standing to seek enforcement of the Rule.
Nevertheless, since the Rules do establish standards of conduct by lawyers, a
lawyer’s violation of a Rule may be evidence of breach of the applicable standard of
conduct.
[21] The Comment accompanying each Rule explains and illustrates the meaning
and purpose of the Rule. The Preamble and this note on Scope provide general
orientation and are instructive and not directive. The Comments are intended as
guides to interpretation, but the text of each Rule is authoritative.
Adopted July 1, 2009, effective January 1, 2010.
RULE 1.0: TERMINOLOGY
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(a) “Belief” or “believes” denotes that the person involved actually supposed the
fact in question to be true. A person’s belief may be inferred from circumstances.
e general
orientation and are instructive and not directive. The Comments are intended as
guides to interpretation, but the text of each Rule is authoritative.
Adopted July 1, 2009, effective January 1, 2010.
RULE 1.0: TERMINOLOGY
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(a) “Belief” or “believes” denotes that the person involved actually supposed the
fact in question to be true. A person’s belief may be inferred from circumstances.
(b) “Confirmed in writing,” when used in reference to the informed consent of
a person, denotes informed consent that is given in writing by the person or a writing
that a lawyer promptly transmits to the person confirming an oral informed consent.
See paragraph (e) for the definition of “informed consent.” If it is not feasible to
obtain or transmit the writing at the time the person gives informed consent, then the
lawyer must obtain or transmit it within a reasonable time thereafter.
(c) “Firm” or “law firm” denotes a lawyer or lawyers in a law partnership,
professional corporation, sole proprietorship or other association authorized to
practice law; or lawyers employed in a legal services organization or the legal
department of a corporation or other organization.
(d) “Fraud” or “fraudulent” denotes conduct that is fraudulent under the
substantive or procedural law of the applicable jurisdiction and has a purpose to
deceive.
(e) “Informed consent” denotes the agreement by a person to a proposed course
of conduct after the lawyer has communicated adequate information and explanation
about the material risks of and reasonably available alternatives to the proposed
course of conduct.
(f) “Knowingly,” “known,” or “knows” denotes actual knowledge of the fact in
question. A person’s knowledge may be inferred from circumstances.
(g) “Partner” denotes a member of a partnership, a shareholder in a law firm
organized as a professional corporation, or a member of an association authorized to
practice law.
isks of and reasonably available alternatives to the proposed
course of conduct.
(f) “Knowingly,” “known,” or “knows” denotes actual knowledge of the fact in
question. A person’s knowledge may be inferred from circumstances.
(g) “Partner” denotes a member of a partnership, a shareholder in a law firm
organized as a professional corporation, or a member of an association authorized to
practice law.
(h) “Reasonable” or “reasonably” when used in relation to conduct by a lawyer
denotes the conduct of a reasonably prudent and competent lawyer.
(i) “Reasonable belief” or “reasonably believes” when used in reference to a
lawyer denotes that the lawyer believes the matter in question and that the
circumstances are such that the belief is reasonable.
(j) “Reasonably should know” when used in reference to a lawyer denotes that a
lawyer of reasonable prudence and competence would ascertain the matter in
question.
(k) “Screened” denotes the isolation of a lawyer from any participation in a matter
through the timely imposition of procedures within a firm that are reasonably
adequate under the circumstances to protect information that the isolated lawyer is
obligated to protect under these Rules or other law.
(l) “Substantial” when used in reference to degree or extent denotes a material
matter of clear and weighty importance.
(m) “Tribunal” denotes a court, an arbitrator in a binding arbitration proceeding
or a legislative body, administrative agency or other body acting in an adjudicative
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capacity. A legislative body, administrative agency or other body acts in an
adjudicative capacity when a neutral official, after the presentation of evidence or
legal argument by a party or parties, will render a binding legal judgment directly
affecting a party’s interests in a particular matter.
proceeding
or a legislative body, administrative agency or other body acting in an adjudicative
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capacity. A legislative body, administrative agency or other body acts in an
adjudicative capacity when a neutral official, after the presentation of evidence or
legal argument by a party or parties, will render a binding legal judgment directly
affecting a party’s interests in a particular matter.
(n) “Writing” or “written” denotes a tangible or electronic record of a
communication or representation, including handwriting, typewriting, printing,
photostating, photography, audio or video recording and e-mail. A “signed” writing
includes an electronic sound, symbol or process attached to or logically associated
with a writing and executed or adopted by a person with the intent to sign the writing.
Adopted July 1, 2009, effective January 1, 2010.
Comment
Confirmed in Writing
[1] If it is not feasible to obtain or transmit a written confirmation, if required, at
the time the client gives informed consent, then the lawyer must obtain or transmit
it within a reasonable time thereafter. If a lawyer has obtained a client’s informed
consent, and written confirmation is required, the lawyer may act in reliance on that
consent so long as it is confirmed in writing within a reasonable time thereafter.
Firm
[2] Whether two or more lawyers constitute a firm within paragraph (c) can
depend on the specific facts. For example, two practitioners who share office space
and occasionally consult or assist each other ordinarily would not be regarded as
constituting a firm. However, if they present themselves to the public in a way that
suggests that they are a firm or conduct themselves as a firm, they should be regarded
as a firm for purposes of the Rules. The terms of any formal agreement between
associated lawyers are relevant in determining whether they are a firm, as is the fact
that they have mutual access to information concerning the clients they serve
firm. However, if they present themselves to the public in a way that
suggests that they are a firm or conduct themselves as a firm, they should be regarded
as a firm for purposes of the Rules. The terms of any formal agreement between
associated lawyers are relevant in determining whether they are a firm, as is the fact
that they have mutual access to information concerning the clients they serve.
Furthermore, it is relevant in doubtful cases to consider the underlying purpose of the
Rule that is involved. A group of lawyers could be regarded as a firm for purposes
of the Rule that the same lawyer should not represent opposing parties in litigation,
while it might not be so regarded for purposes of the Rule that information acquired
by one lawyer is attributed to another.
[3] With respect to the law department of an organization, including the
government, there is ordinarily no question that the members of the department
constitute a firm within the meaning of the Rules of Professional Conduct. There can
be uncertainty, however, as to the identity of the client. For example, it may not be
clear whether the law department of a corporation represents a subsidiary or an
affiliated corporation, as well as the corporation by which the members of the
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department are directly employed. A similar question can arise concerning an
unincorporated association and its local affiliates.
[4] Similar questions can also arise with respect to lawyers in legal aid and legal
services organizations. Depending upon the structure of the organization, the entire
organization or different components of it may constitute a firm or firms for purposes
of these Rules.
Fraud
[5] When used in these Rules, the terms “fraud” or “fraudulent” refer to conduct
that is characterized as such under the substantive or procedural law of the applicable
jurisdiction and has a purpose to deceive. This does not include merely negligent
misrepresentation or negligent failure to apprise another of relevant information
t may constitute a firm or firms for purposes
of these Rules.
Fraud
[5] When used in these Rules, the terms “fraud” or “fraudulent” refer to conduct
that is characterized as such under the substantive or procedural law of the applicable
jurisdiction and has a purpose to deceive. This does not include merely negligent
misrepresentation or negligent failure to apprise another of relevant information. For
purposes of these Rules, it is not necessary that anyone has suffered damages or
relied on the misrepresentation or failure to inform.
Informed Consent
[6] Many of the Rules of Professional Conduct require the lawyer to obtain the
informed consent of a client or other person (e.g., a former client or, under certain
circumstances, a prospective client) before accepting or continuing representation or
pursuing a course of conduct. See, e.g., Rules 1.2(c), 1.6(a) and 1.7(b). The
communication necessary to obtain such consent will vary according to the Rule
involved and the circumstances giving rise to the need to obtain informed consent.
The lawyer must make reasonable efforts to ensure that the client or other person
possesses information reasonably adequate to make an informed decision. Ordinarily,
this will require communication that includes a disclosure of the facts and
circumstances giving rise to the situation, any explanation reasonably necessary to
inform the client or other person of the material advantages and disadvantages of the
proposed course of conduct and a discussion of the client’s or other person’s options
and alternatives. In some circumstances it may be appropriate for a lawyer to advise
a client or other person to seek the advice of other counsel. A lawyer need not inform
a client or other person of facts or implications already known to the client or other
person; nevertheless, a lawyer who does not personally inform the client or other
person assumes the risk that the client or other person is inadequately informed and
the consent is invalid
e appropriate for a lawyer to advise
a client or other person to seek the advice of other counsel. A lawyer need not inform
a client or other person of facts or implications already known to the client or other
person; nevertheless, a lawyer who does not personally inform the client or other
person assumes the risk that the client or other person is inadequately informed and
the consent is invalid. In determining whether the information and explanation
provided are reasonably adequate, relevant factors include whether the client or other
person is experienced in legal matters generally and in making decisions of the type
involved, and whether the client or other person is independently represented by
other counsel in giving the consent. Normally, such persons need less information
and explanation than others, and generally a client or other person who is
independently represented by other counsel in giving the consent should be assumed
to have given informed consent.
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[7] Obtaining informed consent will usually require an affirmative response by
the client or other person. In general, a lawyer may not assume consent from a
client’s or other person’s silence. Consent may be inferred, however, from the
conduct of a client or other person who has reasonably adequate information about
the matter. Rule 1.5(e) requires that a person’s consent be confirmed in writing. For
a definition of “writing” and “confirmed in writing,” see paragraphs (n) and (b).
Other Rules require that a client’s consent be obtained in a writing signed by the
client. See Rules 1.5(c), 1.8(a) and (g). For a definition of “signed,” see paragraph
t or other person who has reasonably adequate information about
the matter. Rule 1.5(e) requires that a person’s consent be confirmed in writing. For
a definition of “writing” and “confirmed in writing,” see paragraphs (n) and (b).
Other Rules require that a client’s consent be obtained in a writing signed by the
client. See Rules 1.5(c), 1.8(a) and (g). For a definition of “signed,” see paragraph
(n).
Screened
[8] This definition applies to situations where screening of a personally
disqualified lawyer is permitted to remove imputation of a conflict of interest under
Rules 1.10, 1.11, 1.12 or 1.18.
[9] The purpose of screening is to assure the affected parties that confidential
information known by the personally disqualified lawyer remains protected. The
personally disqualified lawyer should acknowledge the obligation not to
communicate with any of the other lawyers in the firm with respect to the matter.
Similarly, other lawyers in the firm who are working on the matter should be
informed that the screening is in place and that they may not communicate with the
personally disqualified lawyer with respect to the matter. Additional screening
measures that are appropriate for the particular matter will depend on the
circumstances. To implement, reinforce and remind all affected lawyers of the
presence of the screening, it may be appropriate for the firm to undertake such
procedures as a written undertaking by the screened lawyer to avoid any
communication with other firm personnel and any contact with any firm files or other
materials relating to the matter, written notice and instructions to all other firm
personnel forbidding any communication with the screened lawyer relating to the
matter, denial of access by the screened lawyer to firm files or other materials relating
to the matter and periodic reminders of the screen to the screened lawyer and all other
firm personnel
nd any contact with any firm files or other
materials relating to the matter, written notice and instructions to all other firm
personnel forbidding any communication with the screened lawyer relating to the
matter, denial of access by the screened lawyer to firm files or other materials relating
to the matter and periodic reminders of the screen to the screened lawyer and all other
firm personnel.
[10] In order to be effective, screening measures must be implemented as soon
as practical after a lawyer or law firm knows or reasonably should know that there
is a need for screening.
Adopted July 1, 2009, effective January 1, 2010.
RULE 1.1: COMPETENCE
A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and preparation
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reasonably necessary for the representation.
Adopted July 1, 2009, effective January 1, 2010.
Comment
Legal Knowledge and Skill
[1] In determining whether a lawyer employs the requisite knowledge and skill
in a particular matter, relevant factors include the relative complexity and specialized
nature of the matter, the lawyer’s general experience, the lawyer’s training and
experience in the field in question, the preparation and study the lawyer is able to
give the matter and whether it is feasible to refer the matter to, or associate or consult
with, a lawyer of established competence in the field in question. In many instances,
the required proficiency is that of a general practitioner. Expertise in a particular field
of law may be required in some circumstances.
[2] A lawyer need not necessarily have special training or prior experience to
handle legal problems of a type with which the lawyer is unfamiliar. A newly
admitted lawyer can be as competent as a practitioner with long experience. Some
important legal skills, such as the analysis of precedent, the evaluation of evidence
and legal drafting, are required in all legal problems
in some circumstances.
[2] A lawyer need not necessarily have special training or prior experience to
handle legal problems of a type with which the lawyer is unfamiliar. A newly
admitted lawyer can be as competent as a practitioner with long experience. Some
important legal skills, such as the analysis of precedent, the evaluation of evidence
and legal drafting, are required in all legal problems. Perhaps the most fundamental
legal skill consists of determining what kind of legal problems a situation may
involve, a skill that necessarily transcends any particular specialized knowledge. A
lawyer can provide adequate representation in a wholly novel field through necessary
study. Competent representation can also be provided through the association of a
lawyer of established competence in the field in question.
[3] In an emergency a lawyer may give advice or assistance in a matter in which
the lawyer does not have the skill ordinarily required where referral to or consultation
or association with another lawyer would be impractical. Even in an emergency,
however, assistance should be limited to that reasonably necessary in the
circumstances, for ill-considered action under emergency conditions can jeopardize
the client’s interest.
[4] A lawyer may accept representation where the requisite level of competence
can be achieved by reasonable preparation. This applies as well to a lawyer who is
appointed as counsel for an unrepresented person. See also Rule 6.2.
Thoroughness and Preparation
[5] Competent handling of a particular matter includes inquiry into and analysis
of the factual and legal elements of the problem, and use of methods and procedures
meeting the standards of competent practitioners. It also includes adequate
preparation. The required attention and preparation are determined in part by what
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n unrepresented person. See also Rule 6.2.
Thoroughness and Preparation
[5] Competent handling of a particular matter includes inquiry into and analysis
of the factual and legal elements of the problem, and use of methods and procedures
meeting the standards of competent practitioners. It also includes adequate
preparation. The required attention and preparation are determined in part by what
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is at stake; major litigation and complex transactions ordinarily require more
extensive treatment than matters of lesser complexity and consequence. An
agreement between the lawyer and the client regarding the scope of the representation
may limit the matters for which the lawyer is responsible. See Rule 1.2(c).
Maintaining Competence
[6] To maintain the requisite knowledge and skill, a lawyer should keep abreast
of changes in the law and its practice, engage in continuing study and education and
comply with all continuing legal education requirements to which the lawyer is
subject.
Adopted July 1, 2009, effective January 1, 2010.
RULE 1.2: SCOPE OF REPRESENTATION AND ALLOCATION OF
AUTHORITY BETWEEN CLIENT AND LAWYER
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions
concerning the objectives of representation and, as required by Rule 1.4, shall consult
with the client as to the means by which they are to be pursued. A lawyer may take
such action on behalf of the client as is impliedly authorized to carry out the
representation. A lawyer shall abide by a client’s decision whether to settle a matter.
In a criminal case, the lawyer shall abide by the client’s decision, after consultation
with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the
client will testify.
(b) A lawyer’s representation of a client, including representation by
appointment, does not constitute an endorsement of the client’s political, economic,
social or moral views or activities.
a matter.
In a criminal case, the lawyer shall abide by the client’s decision, after consultation
with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the
client will testify.
(b) A lawyer’s representation of a client, including representation by
appointment, does not constitute an endorsement of the client’s political, economic,
social or moral views or activities.
(c) A lawyer may limit the scope of the representation if the limitation is
reasonable under the circumstances and the client gives informed consent.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that
the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal
consequences of any proposed course of conduct with a client and may counsel or
assist a client to make a good-faith effort to determine the validity, scope, meaning
or application of the law.
(e) After accepting employment on behalf of a client, a lawyer shall not thereafter
delegate to another lawyer not in the lawyer’s firm the responsibility for performing
or completing that employment, without the client’s informed consent.
Adopted July 1, 2009, effective January 1, 2010.
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Comment
Allocation of Authority between Client and Lawyer
[1] Paragraph (a) confers upon the client the ultimate authority to determine the
purposes to be served by legal representation, within the limits imposed by law and
the lawyer’s professional obligations. The decisions specified in paragraph (a), such
as whether to settle a civil matter, must also be made by the client. See Rule 1.4(a)(1)
for the lawyer’s duty to communicate with the client about such decisions. With
respect to the means by which the client’s objectives are to be pursued, the lawyer
shall consult with the client as required by Rule 1.4(a)(2) and may take such action
as is impliedly authorized to carry out the representation.
[2] On occasion, however, a lawyer and a client may disagree about the means
to be used to accomplish the client’s objectives
te with the client about such decisions. With
respect to the means by which the client’s objectives are to be pursued, the lawyer
shall consult with the client as required by Rule 1.4(a)(2) and may take such action
as is impliedly authorized to carry out the representation.
[2] On occasion, however, a lawyer and a client may disagree about the means
to be used to accomplish the client’s objectives. Clients normally defer to the special
knowledge and skill of their lawyer with respect to the means to be used to
accomplish their objectives, particularly with respect to technical, legal and tactical
matters. Conversely, lawyers usually defer to the client regarding such questions as
the expense to be incurred and concern for third persons who might be adversely
affected. Because of the varied nature of the matters about which a lawyer and client
might disagree and because the actions in question may implicate the interests of a
tribunal or other persons, this Rule does not prescribe how such disagreements are
to be resolved. Other law, however, may be applicable and should be consulted by
the lawyer. The lawyer should also consult with the client and seek a mutually
acceptable resolution of the disagreement. If such efforts are unavailing and the
lawyer has a fundamental disagreement with the client, the lawyer may withdraw
from the representation. See Rule 1.16(b)(4). Conversely, the client may resolve the
disagreement by discharging the lawyer. See Rule 1.16(a)(3).
[3] At the outset of a representation, the client may authorize the lawyer to take
specific action on the client’s behalf without further consultation. Absent a material
change in circumstances and subject to Rule 1.4, a lawyer may rely on such an
advance authorization. The client may, however, revoke such authority at any time.
[4] In a case in which the client appears to be suffering diminished capacity, the
lawyer’s duty to abide by the client’s decisions is to be guided by reference to Rule
1.14
e client’s behalf without further consultation. Absent a material
change in circumstances and subject to Rule 1.4, a lawyer may rely on such an
advance authorization. The client may, however, revoke such authority at any time.
[4] In a case in which the client appears to be suffering diminished capacity, the
lawyer’s duty to abide by the client’s decisions is to be guided by reference to Rule
1.14.
Independence from Client’s Views or Activities
[5] Legal representation should not be denied to people who are unable to afford
legal services, or whose cause is controversial or the subject of popular disapproval.
By the same token, representing a client does not constitute approval of the client’s
views or activities.
Agreements Limiting Scope of Representation
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[6] The scope of services to be provided by a lawyer may be limited by agreement
with the client or by the terms under which the lawyer’s services are made available
to the client. When a lawyer has been retained by an insurer to represent an insured,
for example, the representation may be limited to matters related to the insurance
coverage. A limited representation may be appropriate because the client has limited
objectives for the representation. In addition, the terms upon which representation is
undertaken may exclude specific means that might otherwise be used to accomplish
the client’s objectives. Such limitations may exclude actions that the client thinks are
too costly or that the lawyer regards as repugnant or imprudent.
[7] Although this Rule affords the lawyer and client substantial latitude to limit
the representation, the limitation must be reasonable under the circumstances. If, for
example, a client’s objective is limited to securing general information about the law
the client needs in order to handle a common and typically uncomplicated legal
problem, the lawyer and client may agree that the lawyer’s services will be limited
to a brief telephone consultation
substantial latitude to limit
the representation, the limitation must be reasonable under the circumstances. If, for
example, a client’s objective is limited to securing general information about the law
the client needs in order to handle a common and typically uncomplicated legal
problem, the lawyer and client may agree that the lawyer’s services will be limited
to a brief telephone consultation. Such a limitation, however, would not be
reasonable if the time allotted was not sufficient to yield advice upon which the client
could rely. Although an agreement for a limited representation does not exempt a
lawyer from the duty to provide competent representation, the limitation is a factor
to be considered when determining the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation. See Rule 1.1.
[8] All agreements concerning a lawyer’s representation of a client must accord
with the Rules of Professional Conduct and other law. See, e.g., Rules 1.1, 1.8 and
5.6.
Criminal, Fraudulent and Prohibited Transactions
[9] Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a
client to commit a crime or fraud. This prohibition, however, does not preclude the
lawyer from giving an honest opinion about the actual consequences that appear
likely to result from a client’s conduct. Nor does the fact that a client uses advice in
a course of action that is criminal or fraudulent of itself make a lawyer a party to the
course of action. There is a critical distinction between presenting an analysis of legal
aspects of questionable conduct and recommending the means by which a crime or
fraud might be committed with impunity.
[10] When the client’s course of action has already begun and is continuing, the
lawyer’s responsibility is especially delicate. The lawyer is required to avoid assisting
the client, for example, by drafting or delivering documents that the lawyer knows
are fraudulent or by suggesting how the wrongdoing might be concealed
ending the means by which a crime or
fraud might be committed with impunity.
[10] When the client’s course of action has already begun and is continuing, the
lawyer’s responsibility is especially delicate. The lawyer is required to avoid assisting
the client, for example, by drafting or delivering documents that the lawyer knows
are fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer
may not continue assisting a client in conduct that the lawyer originally supposed was
legally proper but then discovers is criminal or fraudulent. The lawyer must,
therefore, withdraw from the representation of the client in the matter. See Rule
1.16(a). In some cases, withdrawal alone might be insufficient. It may be necessary
for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion,
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document, affirmation or the like. See Rule 4.1. In such situations, the lawyer should
also consider whether disclosure of information relating to the representation is
appropriate. See Rule 1.6(b).
[11] Where the client is a fiduciary, the lawyer may be charged with special
obligations in dealings with a beneficiary.
[12] Paragraph (d) applies whether or not the defrauded party is a party to the
transaction. Hence, a lawyer must not participate in a transaction to effectuate
criminal or fraudulent avoidance of tax liability. Paragraph (d) does not preclude
undertaking a criminal defense incident to a general retainer for legal services to a
lawful enterprise. The last clause of paragraph (d) recognizes that determining the
validity or interpretation of a statute or regulation may require a course of action
involving disobedience of the statute or regulation or of the interpretation placed
upon it by governmental authorities
aph (d) does not preclude
undertaking a criminal defense incident to a general retainer for legal services to a
lawful enterprise. The last clause of paragraph (d) recognizes that determining the
validity or interpretation of a statute or regulation may require a course of action
involving disobedience of the statute or regulation or of the interpretation placed
upon it by governmental authorities.
[13] If a lawyer comes to know or reasonably should know that a client expects
assistance not permitted by the Rules of Professional Conduct or other law or if the
lawyer intends to act contrary to the client’s instructions, the lawyer must consult
with the client regarding the limitations on the lawyer’s conduct. See Rule 1.4(a)(5).
[14] The prohibition stated in paragraph (e) has existed in Illinois ethics rules and
in the prior Code since 1980. It is intended to curtail abuses that occasionally occur
when a lawyer attempts to transfer complete or substantial responsibility for a matter
to an unaffiliated lawyer without the client’s awareness or consent. The Rule is
designed to clarify the lawyer’s obligation to complete the employment contemplated
unless the client gives informed consent to substitution by an unaffiliated lawyer. The
Rule is not intended to prohibit lawyers from hiring lawyers outside of their firm to
perform certain services on the client’s or the law firm’s behalf. Nor is it intended to
prevent lawyers from engaging lawyers outside of their firm to stand in for discrete
events in situations such as personal emergencies, illness or schedule conflicts.
Adopted July 1, 2009, effective January 1, 2010.
RULE 1.3: DILIGENCE
A lawyer shall act with reasonable diligence and promptness in representing a
client.
Adopted July 1, 2009, effective January 1, 2010.
Comment
[1] A lawyer should pursue a matter on behalf of a client despite opposition,
obstruction or personal inconvenience to the lawyer, and take whatever lawful and
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or schedule conflicts.
Adopted July 1, 2009, effective January 1, 2010.
RULE 1.3: DILIGENCE
A lawyer shall act with reasonable diligence and promptness in representing a
client.
Adopted July 1, 2009, effective January 1, 2010.
Comment
[1] A lawyer should pursue a matter on behalf of a client despite opposition,
obstruction or personal inconvenience to the lawyer, and take whatever lawful and
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ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must
also act with commitment and dedication to the interests of the client and with zeal
in advocacy upon the client’s behalf. A lawyer is not bound, however, to press for
every advantage that might be realized for a client. For example, a lawyer may have
authority to exercise professional discretion in determining the means by which a
matter should be pursued. See Rule 1.2. The lawyer’s duty to act with reasonable
diligence does not require the use of offensive tactics or preclude the treating of all
persons involved in the legal process with courtesy and respect.
[2] A lawyer’s work load must be controlled so that each matter can be handled
competently.
[3] Perhaps no professional shortcoming is more widely resented than
procrastination. A client’s interests often can be adversely affected by the passage of
time or the change of conditions; in extreme instances, as when a lawyer overlooks
a statute of limitations, the client’s legal position may be destroyed. Even when the
client’s interests are not affected in substance, however, unreasonable delay can cause
a client needless anxiety and undermine confidence in the lawyer’s trustworthiness.
A lawyer’s duty to act with reasonable promptness, however, does not preclude the
lawyer from agreeing to a reasonable request for a postponement that will not
prejudice the lawyer’s client.
[4] Unless the relationship is terminated as provided in Rule 1.16, a lawyer
should carry through to conclusion all matters undertaken for a client
ety and undermine confidence in the lawyer’s trustworthiness.
A lawyer’s duty to act with reasonable promptness, however, does not preclude the
lawyer from agreeing to a reasonable request for a postponement that will not
prejudice the lawyer’s client.
[4] Unless the relationship is terminated as provided in Rule 1.16, a lawyer
should carry through to conclusion all matters undertaken for a client. If a lawyer’s
employment is limited to a specific matter, the relationship terminates when the
matter has been resolved. If a lawyer has served a client over a substantial period in
a variety of matters, the client sometimes may assume that the lawyer will continue
to serve on a continuing basis unless the lawyer gives notice of withdrawal. Doubt
about whether a client-lawyer relationship still exists should be clarified by the
lawyer, preferably in writing, so that the client will not mistakenly suppose the
lawyer is looking after the client’s affairs when the lawyer has ceased to do so. For
example, if a lawyer has handled a judicial or administrative proceeding that
produced a result adverse to the client and the lawyer and the client have not agreed
that the lawyer will handle the matter on appeal, the lawyer must consult with the
client about the possibility of appeal before relinquishing responsibility for the
matter. See Rule 1.4(a)(2). Whether the lawyer is obligated to prosecute the appeal
for the client depends on the scope of the representation the lawyer has agreed to
provide to the client. See Rule 1.2.
[5] To prevent neglect of client matters in the event of a sole practitioner’s death
or disability, the duty of diligence may require that each sole practitioner prepare a
plan, in conformity with applicable rules, that designates another competent lawyer
to review client files, notify each client of the lawyer’s death or disability, and
determine whether there is a need for immediate protective action. See Illinois
Supreme Court Rule 776, Appointment of Receiver in Certain Cases.
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sability, the duty of diligence may require that each sole practitioner prepare a
plan, in conformity with applicable rules, that designates another competent lawyer
to review client files, notify each client of the lawyer’s death or disability, and
determine whether there is a need for immediate protective action. See Illinois
Supreme Court Rule 776, Appointment of Receiver in Certain Cases.
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Adopted July 1, 2009, effective January 1, 2010.
RULE 1.4: COMMUNICATION
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect
to which the client’s informed consent, as defined in Rule 1.0(e), is required by
these Rules;
(2) reasonably consult with the client about the means by which the client’s
objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer’s
conduct when the lawyer knows that the client expects assistance not permitted
by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit
the client to make informed decisions regarding the representation.
Adopted July 1, 2009, effective January 1, 2010.
Comment
[1] Reasonable communication between the lawyer and the client is necessary for
the client effectively to participate in the representation.
Communicating with Client
[2] If these Rules require that a particular decision about the representation be
made by the client, paragraph (a)(1) requires that the lawyer promptly consult with
and secure the client’s consent prior to taking action unless prior discussions with the
client have resolved what action the client wants the lawyer to take
effectively to participate in the representation.
Communicating with Client
[2] If these Rules require that a particular decision about the representation be
made by the client, paragraph (a)(1) requires that the lawyer promptly consult with
and secure the client’s consent prior to taking action unless prior discussions with the
client have resolved what action the client wants the lawyer to take. For example, a
lawyer who receives from opposing counsel an offer of settlement in a civil
controversy or a proffered plea bargain in a criminal case must promptly inform the
client of its substance unless the client has previously indicated that the proposal will
be acceptable or unacceptable or has authorized the lawyer to accept or to reject the
offer. See Rule 1.2(a).
[3] Paragraph (a)(2) requires the lawyer to reasonably consult with the client
about the means to be used to accomplish the client’s objectives. In some
situations–depending on both the importance of the action under consideration and
the feasibility of consulting with the client–this duty will require consultation prior
to taking action. In other circumstances, such as during a trial when an immediate
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decision must be made, the exigency of the situation may require the lawyer to act
without prior consultation. In such cases the lawyer must nonetheless act reasonably
to inform the client of actions the lawyer has taken on the client’s behalf.
Additionally, paragraph (a)(3) requires that the lawyer keep the client reasonably
informed about the status of the matter, such as significant developments affecting
the timing or the substance of the representation.
[4] A lawyer’s regular communication with clients will minimize the occasions
on which a client will need to request information concerning the representation
on the client’s behalf.
Additionally, paragraph (a)(3) requires that the lawyer keep the client reasonably
informed about the status of the matter, such as significant developments affecting
the timing or the substance of the representation.
[4] A lawyer’s regular communication with clients will minimize the occasions
on which a client will need to request information concerning the representation.
When a client makes a reasonable request for information, however, paragraph (a)(4)
requires prompt compliance with the request, or if a prompt response is not feasible,
that the lawyer, or a member of the lawyer’s staff, acknowledge receipt of the request
and advise the client when a response may be expected. Client telephone calls should
be promptly returned or acknowledged.
Explaining Matters
[5] The client should have sufficient information to participate intelligently in
decisions concerning the objectives of the representation and the means by which
they are to be pursued, to the extent the client is willing and able to do so. Adequacy
of communication depends in part on the kind of advice or assistance that is
involved. For example, when there is time to explain a proposal made in a
negotiation, the lawyer should review all important provisions with the client before
proceeding to an agreement. In litigation a lawyer should explain the general strategy
and prospects of success and ordinarily should consult the client on tactics that are
likely to result in significant expense or to injure or coerce others. On the other hand,
a lawyer ordinarily will not be expected to describe trial or negotiation strategy in
detail. The guiding principle is that the lawyer should fulfill reasonable client
expectations for information consistent with the duty to act in the client’s best
interests, and the client’s overall requirements as to the character of representation
icant expense or to injure or coerce others. On the other hand,
a lawyer ordinarily will not be expected to describe trial or negotiation strategy in
detail. The guiding principle is that the lawyer should fulfill reasonable client
expectations for information consistent with the duty to act in the client’s best
interests, and the client’s overall requirements as to the character of representation.
In certain circumstances, such as when a lawyer asks a client to consent to a
representation affected by a conflict of interest, the client must give informed
consent, as defined in Rule 1.0(e).
[6] Ordinarily, the information to be provided is that appropriate for a client who
is a comprehending and responsible adult. However, fully informing the client
according to this standard may be impracticable, for example, where the client is a
child or suffers from diminished capacity. See Rule 1.14. When the client is an
organization or group, it is often impossible or inappropriate to inform every one of
its members about its legal affairs; ordinarily, the lawyer should address
communications to the appropriate officials of the organization. See Rule 1.13.
Where many routine matters are involved, a system of limited or occasional reporting
may be arranged with the client.
Withholding Information
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[7] In some circumstances, a lawyer may be justified in delaying transmission of
information when the client would be likely to react imprudently to an immediate
communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client
when the examining psychiatrist indicates that disclosure would harm the client. A
lawyer may not withhold information to serve the lawyer’s own interest or
convenience or the interests or convenience of another person. Rules or court orders
governing litigation may provide that information supplied to a lawyer may not be
disclosed to the client. Rule 3.4(c) directs compliance with such rules or orders.
Adopted July 1, 2009, effective January 1, 2010.
RULE 1.5: FEES
he client. A
lawyer may not withhold information to serve the lawyer’s own interest or
convenience or the interests or convenience of another person. Rules or court orders
governing litigation may provide that information supplied to a lawyer may not be
disclosed to the client. Rule 3.4(c) directs compliance with such rules or orders.
Adopted July 1, 2009, effective January 1, 2010.
RULE 1.5: FEES
(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable
fee or an unreasonable amount for expenses. The factors to be considered in
determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the
particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing
the services; and
(8) whether the fee is fixed or contingent.
(b) The scope of the representation and the basis or rate of the fee and expenses
for which the client will be responsible shall be communicated to the client,
preferably in writing, before or within a reasonable time after commencing the
representation, except when the lawyer will charge a regularly represented client on
the same basis or rate. Any changes in the basis or rate of the fee or expenses shall
also be communicated to the client.
(c) A fee may be contingent on the outcome of the matter for which the service
is rendered, except in a matter in which a contingent fee is prohibited by paragraph
ble time after commencing the
representation, except when the lawyer will charge a regularly represented client on
the same basis or rate. Any changes in the basis or rate of the fee or expenses shall
also be communicated to the client.
(c) A fee may be contingent on the outcome of the matter for which the service
is rendered, except in a matter in which a contingent fee is prohibited by paragraph
(d) or other law. A contingent fee agreement shall be in a writing signed by the client
and shall state the method by which the fee is to be determined, including the
percentage or percentages that shall accrue to the lawyer in the event of settlement,
trial or appeal; litigation and other expenses to be deducted from the recovery; and
whether such expenses are to be deducted before or after the contingent fee is
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calculated. The agreement must clearly notify the client of any expenses for which
the client will be liable whether or not the client is the prevailing party. Upon
conclusion of a contingent fee matter, the lawyer shall provide the client with a
written statement stating the outcome of the matter and, if there is a recovery,
showing the remittance to the client and the method of its determination.
(d) A lawyer shall not enter into an arrangement for, charge, or collect:
(1) any fee in a domestic relations matter, the payment or amount of which
is contingent upon the securing of a divorce or upon the amount of alimony or
support, or property settlement in lieu thereof; or
(2) a contingent fee for representing a defendant in a criminal case.
to the client and the method of its determination.
(d) A lawyer shall not enter into an arrangement for, charge, or collect:
(1) any fee in a domestic relations matter, the payment or amount of which
is contingent upon the securing of a divorce or upon the amount of alimony or
support, or property settlement in lieu thereof; or
(2) a contingent fee for representing a defendant in a criminal case.
(e) A division of a fee between lawyers who are not in the same firm may be
made only if:
(1) the division is in proportion to the services performed by each lawyer, or
if the primary service performed by one lawyer is the referral of the client to
another lawyer and each lawyer assumes joint financial responsibility for the
representation;
(2) the client agrees to the arrangement, including the share each lawyer will
receive, and the agreement is confirmed in writing; and
(3) the total fee is reasonable.
Adopted July 1, 2009, effective January 1, 2010.
Comment
Reasonableness of Fee and Expenses
[1] Paragraph (a) requires that lawyers charge fees that are reasonable under the
circumstances. The factors specified in (1) through (8) are not exclusive. Nor will
each factor be relevant in each instance. Paragraph (a) also requires that expenses for
which the client will be charged must be reasonable. A lawyer may seek
reimbursement for the cost of services performed in-house, such as copying, or for
other expenses incurred in-house, such as telephone charges, either by charging a
reasonable amount to which the client has agreed in advance or by charging an
amount that reasonably reflects the cost incurred by the lawyer.
Basis or Rate of Fee
[2] When the lawyer has regularly represented a client, they ordinarily will have
evolved an understanding concerning the basis or rate of the fee and the expenses for
which the client will be responsible. In a new client-lawyer relationship, however, an
understanding as to fees and expenses must be promptly established
that reasonably reflects the cost incurred by the lawyer.
Basis or Rate of Fee
[2] When the lawyer has regularly represented a client, they ordinarily will have
evolved an understanding concerning the basis or rate of the fee and the expenses for
which the client will be responsible. In a new client-lawyer relationship, however, an
understanding as to fees and expenses must be promptly established. Generally, it is
desirable to furnish the client with at least a simple memorandum or copy of the
lawyer’s customary fee arrangements that states the general nature of the legal
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services to be provided, the basis, rate or total amount of the fee and whether and to
what extent the client will be responsible for any costs, expenses or disbursements
in the course of the representation. A written statement concerning the terms of the
engagement reduces the possibility of misunderstanding.
[3] Contingent fees, like any other fees, are subject to the reasonableness standard
of paragraph (a) of this Rule. In determining whether a particular contingent fee is
reasonable, or whether it is reasonable to charge any form of contingent fee, a lawyer
must consider the factors that are relevant under the circumstances. Applicable law
may impose limitations on contingent fees, such as a ceiling on the percentage
allowable, or may require a lawyer to offer clients an alternative basis for the fee.
Applicable law also may apply to situations other than a contingent fee, for example,
government regulations regarding fees in certain tax matters.
Terms of Payment
[4] A lawyer may require advance payment of a fee, but is obliged to return any
unearned portion. See Comments [3B] through [3D] to Rule 1.15 and Rule 1.16(d).
A lawyer may accept property in payment for services, such as an ownership interest
in an enterprise, providing this does not involve acquisition of a proprietary interest
in the cause of action or subject matter of the litigation contrary to Rule 1.8 (i)
y require advance payment of a fee, but is obliged to return any
unearned portion. See Comments [3B] through [3D] to Rule 1.15 and Rule 1.16(d).
A lawyer may accept property in payment for services, such as an ownership interest
in an enterprise, providing this does not involve acquisition of a proprietary interest
in the cause of action or subject matter of the litigation contrary to Rule 1.8 (i).
However, a fee paid in property instead of money may be subject to the requirements
of Rule 1.8(a) because such fees often have the essential qualities of a business
transaction with the client.
[5] An agreement may not be made whose terms might induce the lawyer
improperly to curtail services for the client or perform them in a way contrary to the
client’s interest. For example, a lawyer should not enter into an agreement whereby
services are to be provided only up to a stated amount when it is foreseeable that
more extensive services probably will be required, unless the situation is adequately
explained to the client. Otherwise, the client might have to bargain for further
assistance in the midst of a proceeding or transaction. However, it is proper to define
the extent of services in light of the client’s ability to pay. A lawyer should not
exploit a fee arrangement based primarily on hourly charges by using wasteful
procedures.
Prohibited Contingent Fees
[6] Paragraph (d) prohibits a lawyer from charging a contingent fee in a domestic
relations matter when payment is contingent upon the securing of a divorce or upon
the amount of alimony or support or property settlement to be obtained. This
provision does not preclude a contract for a contingent fee for legal representation in
connection with the recovery of postjudgment balances due under support, alimony
or other financial orders because such contracts do not implicate the same policy
concerns.
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ment is contingent upon the securing of a divorce or upon
the amount of alimony or support or property settlement to be obtained. This
provision does not preclude a contract for a contingent fee for legal representation in
connection with the recovery of postjudgment balances due under support, alimony
or other financial orders because such contracts do not implicate the same policy
concerns.
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Division of Fee
[7] A division of fee is a single billing to a client covering the fee of two or more
lawyers who are not in the same firm. A division of fee facilitates association of more
than one lawyer in a matter in which neither alone could serve the client as well, or
referral of a matter where appropriate, and often is used when the fee is contingent
and the division is between a referring lawyer and a trial specialist. Paragraph (e)
permits the lawyers to divide a fee either on the basis of the proportion of services
they render or, where the primary service performed by one lawyer is the referral of
the client to another lawyer, if each lawyer assumes financial responsibility for the
representation as a whole. In addition, the client must agree to the arrangement,
including the share that each lawyer is to receive, and the agreement must be
confirmed in writing. Contingent fee agreements must be in a writing signed by the
client and must otherwise comply with paragraph (c) of this Rule. Joint financial
responsibility for the representation entails financial responsibility for the
representation as if the lawyers were associated in a general partnership. See In re
Storment, 203 Ill. 2d 378 (2002). A lawyer should only refer a matter to a lawyer
whom the referring lawyer reasonably believes is competent to handle the matter. See
Rule 1.1.
[8] Paragraph (e) does not prohibit or regulate division of fees to be received in
the future for work done when lawyers were previously associated in a law firm, or
payments made pursuant to a separation or retirement agreement
ent, 203 Ill. 2d 378 (2002). A lawyer should only refer a matter to a lawyer
whom the referring lawyer reasonably believes is competent to handle the matter. See
Rule 1.1.
[8] Paragraph (e) does not prohibit or regulate division of fees to be received in
the future for work done when lawyers were previously associated in a law firm, or
payments made pursuant to a separation or retirement agreement.
Disputes over Fees
[9] If a procedure has been established for resolution of fee disputes, such as an
arbitration or mediation procedure established by law or rule, the lawyer must comply
with the procedure when it is mandatory, and, even when it is voluntary, the lawyer
should conscientiously consider submitting to it. Law may prescribe a procedure for
determining a lawyer’s fee, for example, in representation of an executor or
administrator, a class or a person entitled to a reasonable fee as part of the measure
of damages. The lawyer entitled to such a fee and a lawyer representing another party
concerned with the fee should comply with the prescribed procedure.
Adopted July 1, 2009, effective January 1, 2010.
RULE 1.6: CONFIDENTIALITY OF INFORMATION
(a) A lawyer shall not reveal information relating to the representation of a client
unless the client gives informed consent, the disclosure is impliedly authorized in
order to carry out the representation, or the disclosure is permitted by paragraph (b)
or required by paragraph (c).
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escribed procedure.
Adopted July 1, 2009, effective January 1, 2010.
RULE 1.6: CONFIDENTIALITY OF INFORMATION
(a) A lawyer shall not reveal information relating to the representation of a client
unless the client gives informed consent, the disclosure is impliedly authorized in
order to carry out the representation, or the disclosure is permitted by paragraph (b)
or required by paragraph (c).
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(b) A lawyer may reveal information relating to the representation of a client to
the extent the lawyer reasonably believes necessary:
(1) to prevent the client from committing a crime in circumstances other than
those specified in paragraph (c);
(2) to prevent the client from committing fraud that is reasonably certain to
result in substantial injury to the financial interests or property of another and in
furtherance of which the client has used or is using the lawyer’s services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests
or property of another that is reasonably certain to result or has resulted from the
client’s commission of a crime or fraud in furtherance of which the client has
used the lawyer’s services;
(4) to secure legal advice about the lawyer’s compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy
between the lawyer and the client, to establish a defense to a criminal charge or
civil claim against the lawyer based upon conduct in which the client was
involved, or to respond to allegations in any proceeding concerning the lawyer’s
representation of the client; or
(6) to comply with other law or a court order.
(c) A lawyer shall reveal information relating to the representation of a client to
the extent the lawyer reasonably believes necessary to prevent reasonably certain
death or substantial bodily harm.
ed upon conduct in which the client was
involved, or to respond to allegations in any proceeding concerning the lawyer’s
representation of the client; or
(6) to comply with other law or a court order.
(c) A lawyer shall reveal information relating to the representation of a client to
the extent the lawyer reasonably believes necessary to prevent reasonably certain
death or substantial bodily harm.
(d) Information received by a lawyer participating in a meeting or proceeding
with a trained intervener or panel of trained interveners of an approved lawyers’
assistance program, or in an intermediary program approved by a circuit court in
which nondisciplinary complaints against judges or lawyers can be referred, shall be
considered information relating to the representation of a client for purposes of these
Rules.
Adopted July 1, 2009, effective January 1, 2010.
Comment
[1] This Rule governs the disclosure by a lawyer of information relating to the
representation of a client during the lawyer’s representation of the client. See Rule
1.18 for the lawyer’s duties with respect to information provided to the lawyer by a
prospective client, Rule 1.9(c)(2) for the lawyer’s duty not to reveal information
relating to the lawyer’s prior representation of a former client and Rules 1.8(b) and
1.9(c)(1) for the lawyer’s duties with respect to the use of such information to the
disadvantage of clients and former clients.
[2] A fundamental principle in the client-lawyer relationship is that, in the
absence of the client’s informed consent, the lawyer must not reveal information
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to reveal information
relating to the lawyer’s prior representation of a former client and Rules 1.8(b) and
1.9(c)(1) for the lawyer’s duties with respect to the use of such information to the
disadvantage of clients and former clients.
[2] A fundamental principle in the client-lawyer relationship is that, in the
absence of the client’s informed consent, the lawyer must not reveal information
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relating to the representation. See Rule 1.0(e) for the definition of informed consent.
This contributes to the trust that is the hallmark of the client-lawyer relationship. The
client is thereby encouraged to seek legal assistance and to communicate fully and
frankly with the lawyer even as to embarrassing or legally damaging subject matter.
The lawyer needs this information to represent the client effectively and, if necessary,
to advise the client to refrain from wrongful conduct. Almost without exception,
clients come to lawyers in order to determine their rights and what is, in the complex
of laws and regulations, deemed to be legal and correct. Based upon experience,
lawyers know that almost all clients follow the advice given, and the law is upheld.
[3] The principle of client-lawyer confidentiality is given effect by related bodies
of law: the attorney-client privilege, the work product doctrine and the rule of
confidentiality established in professional ethics. The attorney-client privilege and
work product doctrine apply in judicial and other proceedings in which a lawyer may
be called as a witness or otherwise required to produce evidence concerning a client.
The rule of client-lawyer confidentiality applies in situations other than those where
evidence is sought from the lawyer through compulsion of law. The confidentiality
rule, for example, applies not only to matters communicated in confidence by the
client but also to all information relating to the representation, whatever its source
or otherwise required to produce evidence concerning a client.
The rule of client-lawyer confidentiality applies in situations other than those where
evidence is sought from the lawyer through compulsion of law. The confidentiality
rule, for example, applies not only to matters communicated in confidence by the
client but also to all information relating to the representation, whatever its source.
A lawyer may not disclose such information except as authorized or required by the
Rules of Professional Conduct or other law. See also Scope.
[4] Paragraph (a) prohibits a lawyer from revealing information relating to the
representation of a client. This prohibition also applies to disclosures by a lawyer that
do not in themselves reveal protected information but could reasonably lead to the
discovery of such information by a third person. A lawyer’s use of a hypothetical to
discuss issues relating to the representation is permissible so long as there is no
reasonable likelihood that the listener will be able to ascertain the identity of the
client or the situation involved.
Authorized Disclosure
[5] Except to the extent that the client’s instructions or special circumstances
limit that authority, a lawyer is impliedly authorized to make disclosures about a
client when appropriate in carrying out the representation. In some situations, for
example, a lawyer may be impliedly authorized to admit a fact that cannot properly
be disputed or to make a disclosure that facilitates a satisfactory conclusion to a
matter. Lawyers in a firm may, in the course of the firm’s practice, disclose to each
other information relating to a client of the firm, unless the client has instructed that
particular information be confined to specified lawyers.
Disclosure Adverse to Client
[6] Although the public interest is usually best served by a strict rule requiring
lawyers to preserve the confidentiality of information relating to the representation
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he course of the firm’s practice, disclose to each
other information relating to a client of the firm, unless the client has instructed that
particular information be confined to specified lawyers.
Disclosure Adverse to Client
[6] Although the public interest is usually best served by a strict rule requiring
lawyers to preserve the confidentiality of information relating to the representation
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of their clients, the confidentiality rule is subject to limited exceptions. Paragraph (c)
recognizes the overriding value of life and physical integrity and requires disclosure
reasonably necessary to prevent reasonably certain death or substantial bodily harm.
Such harm is reasonably certain to occur if it will be suffered imminently or if there
is a present and substantial threat that a person will suffer such harm at a later date
if the lawyer fails to take action necessary to eliminate the threat. Thus, a lawyer who
knows from information relating to a representation that a client or other person has
accidentally discharged toxic waste into a town’s water must reveal this information
to the authorities if there is a present and substantial risk that a person who drinks the
water will contract a life-threatening or debilitating disease and the lawyer’s
disclosure is necessary to eliminate the threat or reduce the number of victims.
[6A] Paragraph (b)(1) preserves the policy of the 1980 Illinois Code of
Professional Responsibility and the 1990 Illinois Rules of Professional Conduct that
permitted a lawyer to reveal the intention of a client to commit a crime. This general
provision would permit disclosure where the client’s intended conduct is a crime,
including a financial crime, and the situation is not covered by paragraph (c)
Paragraph (b)(1) preserves the policy of the 1980 Illinois Code of
Professional Responsibility and the 1990 Illinois Rules of Professional Conduct that
permitted a lawyer to reveal the intention of a client to commit a crime. This general
provision would permit disclosure where the client’s intended conduct is a crime,
including a financial crime, and the situation is not covered by paragraph (c).
[7] Paragraph (b)(2) is a limited exception to the rule of confidentiality that
permits the lawyer to reveal information to the extent necessary to enable affected
persons or appropriate authorities to prevent the client from committing fraud, as
defined in Rule 1.0(d), that is reasonably certain to result in substantial injury to the
financial or property interests of another and in furtherance of which the client has
used or is using the lawyer’s services. Such a serious abuse of the client-lawyer
relationship by the client forfeits the protection of this Rule. The client can, of course,
prevent such disclosure by refraining from the wrongful conduct. Like paragraph
(b)(1), paragraph (b)(2) does not require the lawyer to reveal the client’s misconduct,
but the lawyer may not counsel or assist the client in conduct the lawyer knows is
criminal or fraudulent. See Rule 1.2(d). See also Rule 1.16 with respect to the
lawyer’s obligation or right to withdraw from the representation of the client in such
circumstances, and Rule 1.13(c), which permits the lawyer, where the client is an
organization, to reveal information relating to the representation in limited
circumstances.
[8] Paragraph (b)(3) addresses the situation in which the lawyer does not learn of
the client’s crime or fraud until after it has been consummated. Although the client
no longer has the option of preventing disclosure by refraining from the wrongful
conduct, there will be situations in which the loss suffered by the affected person can
be prevented, rectified or mitigated
in limited
circumstances.
[8] Paragraph (b)(3) addresses the situation in which the lawyer does not learn of
the client’s crime or fraud until after it has been consummated. Although the client
no longer has the option of preventing disclosure by refraining from the wrongful
conduct, there will be situations in which the loss suffered by the affected person can
be prevented, rectified or mitigated. In such situations, the lawyer may disclose
information relating to the representation to the extent necessary to enable the
affected persons to prevent or mitigate reasonably certain losses or to attempt to
recoup their losses. Paragraph (b)(3) does not apply when a person who has
committed a crime or fraud thereafter employs a lawyer for representation concerning
that offense.
[9] A lawyer’s confidentiality obligations do not preclude a lawyer from securing
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confidential legal advice about the lawyer’s personal responsibility to comply with
these Rules. In most situations, disclosing information to secure such advice will be
impliedly authorized for the lawyer to carry out the representation. Even when the
disclosure is not impliedly authorized, paragraph (b)(4) permits such disclosure
because of the importance of a lawyer’s compliance with the Rules of Professional
Conduct.
[10] Where a legal claim or disciplinary charge alleges complicity of the lawyer
in a client’s conduct or other misconduct of the lawyer involving representation of
the client, the lawyer may respond to the extent the lawyer reasonably believes
necessary to establish a defense. The same is true with respect to a claim involving
the conduct or representation of a former client. Such a charge can arise in a civil,
criminal, disciplinary or other proceeding and can be based on a wrong allegedly
committed by the lawyer against the client or on a wrong alleged by a third person,
for example, a person claiming to have been defrauded by the lawyer and client
acting together
se. The same is true with respect to a claim involving
the conduct or representation of a former client. Such a charge can arise in a civil,
criminal, disciplinary or other proceeding and can be based on a wrong allegedly
committed by the lawyer against the client or on a wrong alleged by a third person,
for example, a person claiming to have been defrauded by the lawyer and client
acting together. The lawyer’s right to respond arises when an assertion of such
complicity has been made. Paragraph (b)(5) does not require the lawyer to await the
commencement of an action or proceeding that charges such complicity, so that the
defense may be established by responding directly to a third party who has made such
an assertion. The right to defend also applies, of course, where a proceeding has been
commenced.
[11] A lawyer entitled to a fee is permitted by paragraph (b)(5) to prove the
services rendered in an action to collect it. This aspect of the Rule expresses the
principle that the beneficiary of a fiduciary relationship may not exploit it to the
detriment of the fiduciary.
[12] Other law may require that a lawyer disclose information about a client.
Whether such a law supersedes Rule 1.6 is a question of law beyond the scope of
these Rules. When disclosure of information relating to the representation appears
to be required by other law, the lawyer must discuss the matter with the client to the
extent required by Rule 1.4. If, however, the other law supersedes this Rule and
requires disclosure, paragraph (b)(6) permits the lawyer to make such disclosures as
are necessary to comply with the law.
[13] A lawyer may be ordered to reveal information relating to the representation
of a client by a court or by another tribunal or governmental entity claiming authority
pursuant to other law to compel the disclosure
ule 1.4. If, however, the other law supersedes this Rule and
requires disclosure, paragraph (b)(6) permits the lawyer to make such disclosures as
are necessary to comply with the law.
[13] A lawyer may be ordered to reveal information relating to the representation
of a client by a court or by another tribunal or governmental entity claiming authority
pursuant to other law to compel the disclosure. Absent informed consent of the client
to do otherwise, the lawyer should assert on behalf of the client all nonfrivolous
claims that the order is not authorized by other law or that the information sought is
protected against disclosure by the attorney-client privilege or other applicable law.
In the event of an adverse ruling, the lawyer must consult with the client about the
possibility of appeal to the extent required by Rule 1.4. Unless review is sought,
however, paragraph (b)(6) permits the lawyer to comply with the court’s order.
[14] Paragraph (b) permits disclosure only to the extent the lawyer reasonably
believes the disclosure is necessary to accomplish one of the purposes specified.
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Where practicable, the lawyer should first seek to persuade the client to take suitable
action to obviate the need for disclosure. In any case, a disclosure adverse to the
client’s interest should be no greater than the lawyer reasonably believes necessary
to accomplish the purpose. If the disclosure will be made in connection with a
judicial proceeding, the disclosure should be made in a manner that limits access to
the information to the tribunal or other persons having a need to know it and
appropriate protective orders or other arrangements should be sought by the lawyer
to the fullest extent practicable.
[15] Paragraph (b) permits but does not require the disclosure of information
relating to a client’s representation to accomplish the purposes specified in
paragraphs (b)(1) through (b)(6)
imits access to
the information to the tribunal or other persons having a need to know it and
appropriate protective orders or other arrangements should be sought by the lawyer
to the fullest extent practicable.
[15] Paragraph (b) permits but does not require the disclosure of information
relating to a client’s representation to accomplish the purposes specified in
paragraphs (b)(1) through (b)(6). In exercising the discretion conferred by this Rule,
the lawyer may consider such factors as the nature of the lawyer’s relationship with
the client and with those who might be injured by the client, the lawyer’s own
involvement in the transaction and factors that may extenuate the conduct in
question. A lawyer’s decision not to disclose as permitted by paragraph (b) does not
violate this Rule. Disclosure may be required, however, by other Rules. Some Rules
require disclosure only if such disclosure would be permitted by paragraph (b). See
Rules 1.2(d), 4.1(b), and 8.1. Rules 3.3 and 8.3, on the other hand, require disclosure
in some circumstances regardless of whether such disclosure is permitted by this
Rule.
Withdrawal
[15A] If the lawyer’s services will be used by a client in materially furthering a
course of criminal or fraudulent conduct, the lawyer must withdraw, as stated in Rule
1.16(a)(1). The lawyer may give notice of the fact of withdrawal regardless of
whether the lawyer decides to disclose information relating to a client’s
representation as permitted by paragraph (b). The lawyer may also withdraw or
disaffirm any opinion or other document that had been prepared for the client or
others. Where the client is an organization, the lawyer must also consider the
provisions of Rule 1.13
e lawyer may give notice of the fact of withdrawal regardless of
whether the lawyer decides to disclose information relating to a client’s
representation as permitted by paragraph (b). The lawyer may also withdraw or
disaffirm any opinion or other document that had been prepared for the client or
others. Where the client is an organization, the lawyer must also consider the
provisions of Rule 1.13.
Acting Competently to Preserve Confidentiality
[16] A lawyer must act competently to safeguard information relating to the
representation of a client against inadvertent or unauthorized disclosure by the lawyer
or other persons who are participating in the representation of the client or who are
subject to the lawyer’s supervision. See Rules 1.1, 5.1 and 5.3.
[17] When transmitting a communication that includes information relating to the
representation of a client, the lawyer must take reasonable precautions to prevent the
information from coming into the hands of unintended recipients. This duty,
however, does not require that the lawyer use special security measures if the method
of communication affords a reasonable expectation of privacy. Special
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circumstances, however, may warrant special precautions. Factors to be considered
in determining the reasonableness of the lawyer’s expectation of confidentiality
include the sensitivity of the information and the extent to which the privacy of the
communication is protected by law or by a confidentiality agreement. A client may
require the lawyer to implement special security measures not required by this Rule
or may give informed consent to the use of a means of communication that would
otherwise be prohibited by this Rule.
Former Client
[18] The duty of confidentiality continues after the client-lawyer relationship has
terminated. See Rule 1.9(c)(2). See Rule 1.9(c)(1) for the prohibition against using
such information to the disadvantage of the former client
ecurity measures not required by this Rule
or may give informed consent to the use of a means of communication that would
otherwise be prohibited by this Rule.
Former Client
[18] The duty of confidentiality continues after the client-lawyer relationship has
terminated. See Rule 1.9(c)(2). See Rule 1.9(c)(1) for the prohibition against using
such information to the disadvantage of the former client.
Lawyers’ Assistance and Court Intermediary Programs
[19] Information about the fitness or conduct of a law student, lawyer or judge
may be received by a lawyer while participating in an approved lawyers’ assistance
program. Protecting the confidentiality of such information encourages law students,
lawyers and judges to seek assistance through such programs. Without such
protection, law students, lawyers and judges may hesitate to seek assistance, to the
detriment of clients and the public. Similarly, lawyers participating in an approved
intermediary program established by a circuit court to resolve nondisciplinary issues
among lawyers and judges may receive information about the fitness or conduct of
a lawyer or judge. Paragraph (d) therefore provides that any information received by
a lawyer participating in an approved lawyers’ assistance program or an approved
circuit court intermediary program will be protected as confidential client
information for purposes of the Rules. See also Comment [5] to Rule 8.3.
Adopted July 1, 2009, effective January 1, 2010.
RULE 1.7: CONFLICT OF INTEREST: CURRENT CLIENTS
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest. A concurrent conflict of
interest exists if:
(1) the representation of one client will be directly adverse to another client;
or
(2) there is a significant risk that the representation of one or more clients will
be materially limited by the lawyer’s responsibilities to another client, a former
client or a third person or by a personal interest of the lawyer.
-27-
concurrent conflict of interest. A concurrent conflict of
interest exists if:
(1) the representation of one client will be directly adverse to another client;
or
(2) there is a significant risk that the representation of one or more clients will
be materially limited by the lawyer’s responsibilities to another client, a former
client or a third person or by a personal interest of the lawyer.
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(b) Notwithstanding the existence of a concurrent conflict of interest under
paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide
competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client
against another client represented by the lawyer in the same litigation or other
proceeding before a tribunal; and
(4) each affected client gives informed consent.
Adopted July 1, 2009, effective January 1, 2010.
Comment
General Principles
[1] Loyalty and independent judgment are essential elements in the lawyer’s
relationship to a client. Concurrent conflicts of interest can arise from the lawyer’s
responsibilities to another client, a former client or a third person or from the
lawyer’s own interests. For specific Rules regarding certain concurrent conflicts of
interest, see Rule 1.8. For former client conflicts of interest, see Rule 1.9. For
conflicts of interest involving prospective clients, see Rule 1.18. For a definition of
“informed consent” see Rule 1.0(e).
[2] Resolution of a conflict of interest problem under this Rule requires the
lawyer to: (1) clearly identify the client or clients; (2) determine whether a conflict
of interest exists; (3) decide whether the representation may be undertaken despite
the existence of a conflict, i.e., whether the conflict is consentable; and (4) if so,
consult with the clients affected under paragraph (a) and obtain their informed
consent
lict of interest problem under this Rule requires the
lawyer to: (1) clearly identify the client or clients; (2) determine whether a conflict
of interest exists; (3) decide whether the representation may be undertaken despite
the existence of a conflict, i.e., whether the conflict is consentable; and (4) if so,
consult with the clients affected under paragraph (a) and obtain their informed
consent. The clients affected under paragraph (a) include both of the clients referred
to in paragraph (a)(1) and the one or more clients whose representation might be
materially limited under paragraph (a)(2).
[3] A conflict of interest may exist before representation is undertaken, in which
event the representation must be declined, unless the lawyer obtains the informed
consent of each client under the conditions of paragraph (b). To determine whether
a conflict of interest exists, a lawyer should adopt reasonable procedures, appropriate
for the size and type of firm and practice, to determine in both litigation and
nonlitigation matters the persons and issues involved. See also Comment to Rule 5.1.
Ignorance caused by a failure to institute such procedures will not excuse a lawyer’s
violation of this Rule. As to whether a client-lawyer relationship exists or, having
once been established, is continuing, see Comment to Rule 1.3 and Scope.
[4] If a conflict arises after representation has been undertaken, the lawyer
ordinarily must withdraw from the representation, unless the lawyer has obtained the
-28-
aused by a failure to institute such procedures will not excuse a lawyer’s
violation of this Rule. As to whether a client-lawyer relationship exists or, having
once been established, is continuing, see Comment to Rule 1.3 and Scope.
[4] If a conflict arises after representation has been undertaken, the lawyer
ordinarily must withdraw from the representation, unless the lawyer has obtained the
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informed consent of the client under the conditions of paragraph (b). See Rule 1.16.
Where more than one client is involved, whether the lawyer may continue to
represent any of the clients is determined both by the lawyer’s ability to comply with
duties owed to the former client and by the lawyer’s ability to represent adequately
the remaining client or clients, given the lawyer’s duties to the former client. See
Rule 1.9. See also Comments [5] and [29].
[5] Unforeseeable developments, such as changes in corporate and other
organizational affiliations or the addition or realignment of parties in litigation, might
create conflicts in the midst of a representation, as when a company sued by the
lawyer on behalf of one client is bought by another client represented by the lawyer
in an unrelated matter. Depending on the circumstances, the lawyer may have the
option to withdraw from one of the representations in order to avoid the conflict. The
lawyer must seek court approval where necessary and take steps to minimize harm
to the clients. See Rule 1.16. The lawyer must continue to protect the confidences of
the client from whose representation the lawyer has withdrawn. See Rule 1.9(c).
Identifying Conflicts of Interest: Directly Adverse
[6] Loyalty to a current client prohibits undertaking representation directly
adverse to that client without that client’s informed consent. Thus, absent consent,
a lawyer may not act as an advocate in one matter against a person the lawyer
represents in some other matter, even when the matters are wholly unrelated
has withdrawn. See Rule 1.9(c).
Identifying Conflicts of Interest: Directly Adverse
[6] Loyalty to a current client prohibits undertaking representation directly
adverse to that client without that client’s informed consent. Thus, absent consent,
a lawyer may not act as an advocate in one matter against a person the lawyer
represents in some other matter, even when the matters are wholly unrelated. The
client as to whom the representation is directly adverse is likely to feel betrayed, and
the resulting damage to the client-lawyer relationship is likely to impair the lawyer’s
ability to represent the client effectively. In addition, the client on whose behalf the
adverse representation is undertaken reasonably may fear that the lawyer will pursue
that client’s case less effectively out of deference to the other client, i.e., that the
representation may be materially limited by the lawyer’s interest in retaining the
current client. Similarly, a directly adverse conflict may arise when a lawyer is
required to cross-examine a client who appears as a witness in a lawsuit involving
another client, as when the testimony will be damaging to the client who is
represented in the lawsuit. On the other hand, simultaneous representation in
unrelated matters of clients whose interests are only economically adverse, such as
representation of competing economic enterprises in unrelated litigation, does not
ordinarily constitute a conflict of interest and thus may not require consent of the
respective clients.
[7] Directly adverse conflicts can also arise in transactional matters. For example,
if a lawyer is asked to represent the seller of a business in negotiations with a buyer
represented by the lawyer, not in the same transaction but in another, unrelated
matter, the lawyer could not undertake the representation without the informed
consent of each client.
Identifying Conflicts of Interest: Material Limitation
-29-
erse conflicts can also arise in transactional matters. For example,
if a lawyer is asked to represent the seller of a business in negotiations with a buyer
represented by the lawyer, not in the same transaction but in another, unrelated
matter, the lawyer could not undertake the representation without the informed
consent of each client.
Identifying Conflicts of Interest: Material Limitation
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[8] Even where there is no direct adverseness, a conflict of interest exists if there
is a significant risk that a lawyer’s ability to consider, recommend or carry out an
appropriate course of action for the client will be materially limited as a result of the
lawyer’s other responsibilities or interests. For example, a lawyer asked to represent
several individuals seeking to form a joint venture is likely to be materially limited
in the lawyer’s ability to recommend or advocate all possible positions that each
might take because of the lawyer’s duty of loyalty to the others. The conflict in effect
forecloses alternatives that would otherwise be available to the client. The mere
possibility of subsequent harm does not itself require disclosure and consent. The
critical questions are the likelihood that a difference in interests will eventuate and,
if it does, whether it will materially interfere with the lawyer’s independent
professional judgment in considering alternatives or foreclose courses of action that
reasonably should be pursued on behalf of the client.
Lawyer’s Responsibilities to Former Clients and Other Third Persons
[9] In addition to conflicts with other current clients, a lawyer’s duties of loyalty
and independence may be materially limited by responsibilities to former clients
under Rule 1.9 or by the lawyer’s responsibilities to other persons, such as fiduciary
duties arising from a lawyer’s service as a trustee, executor or corporate director.
Personal Interest Conflicts
[10] The lawyer’s own interests should not be permitted to have an adverse effect
on representation of a client
loyalty
and independence may be materially limited by responsibilities to former clients
under Rule 1.9 or by the lawyer’s responsibilities to other persons, such as fiduciary
duties arising from a lawyer’s service as a trustee, executor or corporate director.
Personal Interest Conflicts
[10] The lawyer’s own interests should not be permitted to have an adverse effect
on representation of a client. For example, if the probity of a lawyer’s own conduct
in a transaction is in serious question, it may be difficult or impossible for the lawyer
to give a client detached advice. Similarly, when a lawyer has discussions concerning
possible employment with an opponent of the lawyer’s client, or with a law firm
representing the opponent, such discussions could materially limit the lawyer’s
representation of the client. In addition, a lawyer may not allow related business
interests to affect representation, for example, by referring clients to an enterprise in
which the lawyer has an undisclosed financial interest. See Rule 1.8 for specific
Rules pertaining to a number of personal interest conflicts, including business
transactions with clients. See also Rule 1.10 (personal interest conflicts under Rule
1.7 ordinarily are not imputed to other lawyers in a law firm).
[11] When lawyers representing different clients in the same matter or in
substantially related matters are closely related by blood or marriage, there may be
a significant risk that client confidences will be revealed and that the lawyer’s family
relationship will interfere with both loyalty and independent professional judgment.
As a result, each client is entitled to know of the existence and implications of the
relationship between the lawyers before the lawyer agrees to undertake the
representation. Thus, a lawyer related to another lawyer, e.g., as parent, child, sibling
or spouse, ordinarily may not represent a client in a matter where that lawyer is
representing another party, unless each client gives informed consent. The
-30-
each client is entitled to know of the existence and implications of the
relationship between the lawyers before the lawyer agrees to undertake the
representation. Thus, a lawyer related to another lawyer, e.g., as parent, child, sibling
or spouse, ordinarily may not represent a client in a matter where that lawyer is
representing another party, unless each client gives informed consent. The
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disqualification arising from a close family relationship is personal and ordinarily is
not imputed to members of firms with whom the lawyers are associated. See Rule
1.10.
[12] A lawyer is prohibited from engaging in sexual relationships with a client
unless the sexual relationship predates the formation of the client-lawyer relationship.
See Rule 1.8(j).
Interest of Person Paying for a Lawyer’s Service
[13] A lawyer may be paid from a source other than the client, including a co-
client, if the client is informed of that fact and consents and the arrangement does not
compromise the lawyer’s duty of loyalty or independent judgment to the client. See
Rule 1.8(f). If acceptance of the payment from any other source presents a significant
risk that the lawyer’s representation of the client will be materially limited by the
lawyer’s own interest in accommodating the person paying the lawyer’s fee or by the
lawyer’s responsibilities to a payer who is also a co-client, then the lawyer must
comply with the requirements of paragraph (b) before accepting the representation,
including determining whether the conflict is consentable and, if so, that the client
has adequate information about the material risks of the representation.
Prohibited Representations
[14] Ordinarily, clients may consent to representation notwithstanding a conflict.
However, as indicated in paragraph (b), some conflicts are nonconsentable, meaning
that the lawyer involved cannot properly ask for such agreement or provide
representation on the basis of the client’s consent
client
has adequate information about the material risks of the representation.
Prohibited Representations
[14] Ordinarily, clients may consent to representation notwithstanding a conflict.
However, as indicated in paragraph (b), some conflicts are nonconsentable, meaning
that the lawyer involved cannot properly ask for such agreement or provide
representation on the basis of the client’s consent. When the lawyer is representing
more than one client, the question of consentability must be resolved as to each
client.
[15] Consentability is typically determined by considering whether the interests
of the clients will be adequately protected if the clients are permitted to give their
informed consent to representation burdened by a conflict of interest. Thus, under
paragraph (b)(1), representation is prohibited if in the circumstances the lawyer
cannot reasonably conclude that the lawyer will be able to provide competent and
diligent representation. See Rule 1.1 (competence) and Rule 1.3 (diligence).
[16] Paragraph (b)(2) describes conflicts that are nonconsentable because the
representation is prohibited by applicable law. For example, in some states
substantive law provides that the same lawyer may not represent more than one
defendant in a capital case, even with the consent of the clients, and under federal
criminal statutes certain representations by a former government lawyer are
prohibited, despite the informed consent of the former client. In addition, decisional
law in some states limits the ability of a governmental client, such as a municipality,
to consent to a conflict of interest.
[17] Paragraph (b)(3) describes conflicts that are nonconsentable because of the
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lients, and under federal
criminal statutes certain representations by a former government lawyer are
prohibited, despite the informed consent of the former client. In addition, decisional
law in some states limits the ability of a governmental client, such as a municipality,
to consent to a conflict of interest.
[17] Paragraph (b)(3) describes conflicts that are nonconsentable because of the
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institutional interest in vigorous development of each client’s position when the
clients are aligned directly against each other in the same litigation or other
proceeding before a tribunal. Whether clients are aligned directly against each other
within the meaning of this paragraph requires examination of the context of the
proceeding. Although this paragraph does not preclude a lawyer’s multiple
representation of adverse parties to a mediation (because mediation is not a
proceeding before a “tribunal” under Rule 1.0(m)), such representation may be
precluded by paragraph (b)(1).
Informed Consent
[18] Informed consent requires that each affected client be aware of the relevant
circumstances and of the material and reasonably foreseeable ways that the conflict
could have adverse effects on the interests of that client. See Rule 1.0(e) (informed
consent). The information required depends on the nature of the conflict and the
nature of the risks involved. When representation of multiple clients in a single
matter is undertaken, the information must include the implications of the common
representation, including possible effects on loyalty, confidentiality and the attorney-
client privilege and the advantages and risks involved. See Comments [30] and [31]
(effect of common representation on confidentiality).
[19] Under some circumstances it may be impossible to make the disclosure
necessary to obtain consent
undertaken, the information must include the implications of the common
representation, including possible effects on loyalty, confidentiality and the attorney-
client privilege and the advantages and risks involved. See Comments [30] and [31]
(effect of common representation on confidentiality).
[19] Under some circumstances it may be impossible to make the disclosure
necessary to obtain consent. For example, when the lawyer represents different
clients in related matters and one of the clients refuses to consent to the disclosure
necessary to permit the other client to make an informed decision, the lawyer cannot
properly ask the latter to consent. In some cases the alternative to common
representation can be that each party may have to obtain separate representation with
the possibility of incurring additional costs. These costs, along with the benefits of
securing separate representation, are factors that may be considered by the affected
client in determining whether common representation is in the client’s interests.
[20] Reserved.
Revoking Consent
[21] A client who has given consent to a conflict may revoke the consent and,
like any other client, may terminate the lawyer’s representation at any time. Whether
revoking consent to the client’s own representation precludes the lawyer from
continuing to represent other clients depends on the circumstances, including the
nature of the conflict, whether the client revoked consent because of a material
change in circumstances, the reasonable expectations of the other clients and whether
material detriment to the other clients or the lawyer would result.
Consent to Future Conflict
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ient’s own representation precludes the lawyer from
continuing to represent other clients depends on the circumstances, including the
nature of the conflict, whether the client revoked consent because of a material
change in circumstances, the reasonable expectations of the other clients and whether
material detriment to the other clients or the lawyer would result.
Consent to Future Conflict
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[22] Whether a lawyer may properly request a client to waive conflicts that might
arise in the future is subject to the test of paragraph (b). The effectiveness of such
waivers is generally determined by the extent to which the client reasonably
understands the material risks that the waiver entails. The more comprehensive the
explanation of the types of future representations that might arise and the actual and
reasonably foreseeable adverse consequences of those representations, the greater the
likelihood that the client will have the requisite understanding. Thus, if the client
agrees to consent to a particular type of conflict with which the client is already
familiar, then the consent ordinarily will be effective with regard to that type of
conflict. If the consent is general and open-ended, then the consent ordinarily will be
ineffective, because it is not reasonably likely that the client will have understood the
material risks involved. On the other hand, if the client is an experienced user of the
legal services involved and is reasonably informed regarding the risk that a conflict
may arise, such consent is more likely to be effective, particularly if, e.g., the client
is independently represented by other counsel in giving consent and the consent is
limited to future conflicts unrelated to the subject of the representation. In any case,
advance consent cannot be effective if the circumstances that materialize in the future
are such as would make the conflict nonconsentable under paragraph (b)
ent is more likely to be effective, particularly if, e.g., the client
is independently represented by other counsel in giving consent and the consent is
limited to future conflicts unrelated to the subject of the representation. In any case,
advance consent cannot be effective if the circumstances that materialize in the future
are such as would make the conflict nonconsentable under paragraph (b).
Conflicts in Litigation
[23] Paragraph (b)(3) prohibits representation of opposing parties in the same
litigation, regardless of the clients’ consent. On the other hand, simultaneous
representation of parties whose interests in litigation may conflict, such as
coplaintiffs or codefendants, is governed by paragraph (a)(2). A conflict may exist
by reason of substantial discrepancy in the parties’ testimony, incompatibility in
positions in relation to an opposing party or the fact that there are substantially
different possibilities of settlement of the claims or liabilities in question. Such
conflicts can arise in criminal cases as well as civil. The potential for conflict of
interest in representing multiple defendants in a criminal case is so grave that
ordinarily a lawyer should decline to represent more than one codefendant. On the
other hand, common representation of persons having similar interests in civil
litigation is proper if the requirements of paragraph (b) are met.
[24] Ordinarily a lawyer may take inconsistent legal positions in different
tribunals at different times on behalf of different clients. The mere fact that
advocating a legal position on behalf of one client might create precedent adverse to
the interests of a client represented by the lawyer in an unrelated matter does not
create a conflict of interest
f the requirements of paragraph (b) are met.
[24] Ordinarily a lawyer may take inconsistent legal positions in different
tribunals at different times on behalf of different clients. The mere fact that
advocating a legal position on behalf of one client might create precedent adverse to
the interests of a client represented by the lawyer in an unrelated matter does not
create a conflict of interest. A conflict of interest exists, however, if there is a
significant risk that a lawyer’s action on behalf of one client will materially limit the
lawyer’s effectiveness in representing another client in a different case; for example,
when a decision favoring one client will create a precedent likely to seriously weaken
the position taken on behalf of the other client. Factors relevant in determining
whether the clients need to be advised of the risk include: where the cases are
-33-

pending, whether the issue is substantive or procedural, the temporal relationship
between the matters, the significance of the issue to the immediate and long-term
interests of the clients involved and the clients’ reasonable expectations in retaining
the lawyer. If there is significant risk of material limitation, then absent informed
consent of the affected clients, the lawyer must refuse one of the representations or
withdraw from one or both matters.
[25] When a lawyer represents or seeks to represent a class of plaintiffs or
defendants in a class-action lawsuit, unnamed members of the class are ordinarily not
considered to be clients of the lawyer for purposes of applying paragraph (a)(1) of
this Rule. Thus, the lawyer does not typically need to get the consent of such a person
before representing a client suing the person in an unrelated matter. Similarly, a
lawyer seeking to represent an opponent in a class action does not typically need the
consent of an unnamed member of the class whom the lawyer represents in an
unrelated matter
lawyer for purposes of applying paragraph (a)(1) of
this Rule. Thus, the lawyer does not typically need to get the consent of such a person
before representing a client suing the person in an unrelated matter. Similarly, a
lawyer seeking to represent an opponent in

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## Nearby sections

- [IL. R. Ct.  Rule . Preamble and Scope](https://www.frixlaw.com/law-library/statutes/SRULES_IL_TVIII_R.md)
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- [IL. R. Ct. 1.12 Rule 1.12. Former Judge, Arbitrator, Mediator or Other Third-Party Neutral](https://www.frixlaw.com/law-library/statutes/SRULES_IL_TVIII_R1_12.md)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/SRULES_IL_TVIII_R. Check the current official text before relying on it. Not legal advice.