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The Public Servant
The newsletter of the ISBA’s Standing Committee on Government Lawyers

November 2000, vol. 2, no. 1

Practice and procedure before the attorney registration and disciplinary commission

In 1973, the Illinois Supreme Court enacted Rule 751, creating the Attorney Registration and Disciplinary Commission ("ARDC" or "the Commission") to exercise administrative supervision of the registration and discipline of members of the Illinois bar. Every attorney in good standing is familiar with the registration process that takes place annually between November and February, but most practitioners have little knowledge of disciplinary proceedings, which, although they bear many similarities to typical contested cases, are designed to formulate recommendations to the supreme court, rather than to arrive at final decisions.

Supreme Court Rule 753 creates the three boards that accomplish specifically designated functions in the disciplinary process: the Inquiry Board, the Hearing Board, and the Review Board. Members of the first two boards, which include attorneys and lay members, are appointed by the Commission, while members of the Review Board, all of whom are attorneys, are named by the supreme court. All of the boards act in panels of three members; Inquiry and Hearing Board panels consist of two lawyers and one layperson. In addition to its assigned duties in contested cases, each board is authorized to approve petitions to the supreme court for discipline on consent, under Supreme Court Rule 762(b). Consent petitions, if accepted by the court, eliminate the need to complete a contested proceeding.

The ARDC receives approximately 6,000 charges of attorney misconduct every year. While the vast majority of these charges are closed after investigation by staff lawyers, the more serious matters are brought before the Inquiry Board, which serves a function analogous to that of a grand jury. At a meeting of an Inquiry Board panel, an attorney for the Administrator (the chief executive officer of the ARDC) will present the basis for pursuit of a charge and ask the panel to vote a complaint, i.e., to agree that a formal disciplinary proceeding should be brought. Investigations conducted by the Administrator and proceedings before the Inquiry Board are confidential, as required by Supreme Court Rule 766.

If the Inquiry Board votes a complaint against a respondent, the Administrator prepares and files the complaint with the Hearing Board. After service of the complaint is made on the respondent, proceedings before the Hearing Board, and all subsequent steps in the disciplinary process, become a matter of public record.

Supreme Court Rule 753(c) requires that proceedings before the Hearing Board be conducted in accordance with the Code of Civil Procedures and supreme court rules, as modified by duly promulgated rules of the ARDC. The designated chairperson of a hearing panel will schedule prehearing and status conferences as necessary, to consider pleading and evidentiary issues, to monitor and supervise discovery, and to address other issues that may arise prior to hearing. See Commission Rule 260.

When a matter goes to hearing, it will be the Administrator's burden to prove the charges against a respondent by clear and convincing evidence, under Supreme Court Rule 753(c)(6). Hearings are conducted with the formality of civil trials. In addition to examination of witnesses by counsel, however, members of the panel will often direct questions to the witnesses during the formal proceedings. An attorney's character is always relevant in a disciplinary proceeding, but Commission rules specify that character evidence will not be received in the form of letters or affidavits; live testimony or, occasionally, evidence depositions are introduced by the respondent in most cases in an effort to mitigate the impact of any proved misconduct.

After oral closing arguments are presented, a matter is taken under advisement by the hearing panel, which will later issue a written report and recommendation summarizing the proceedings, analyzing the evidence, making formal findings as to each of the Administrator's allegations of misconduct, and recommending either that a particular discipline be imposed or that the complaint be dismissed. No post-trial motions are considered; a party's dispute with the Hearing Board's report and recommendation is preserved through the filing of a notice of exceptions with the Review Board.

The Review Board functions as an appellate tribunal, using procedures adapted from the supreme court's rules governing civil appeals. See Commission Rules 301-04, governing the filing of a notice of exceptions, the preparation of briefs and the presentation of oral arguments. Factual findings by the Hearing Board will be accorded deference by the Review Board, as they will by the supreme court, but the Review Board will reject or modify any findings that it determines to be against the manifest weight of the evidence. Supreme Court Rule 753(d)(3). That rule also authorizes the Review Board to make additional findings, if they are found proved by clear and convincing evidence; to approve, reject or modify the recommendation of the Hearing Board; to remand the case for further proceedings before the Hearing Board; or to dismiss the proceeding. Id.

There is no provision for any type of rehearing or reconsideration at the Review Board level. Reports and recommendations of the Review Board may be challenged by the administrator or the respondent by filing, in the supreme court, petitions for leave to file exceptions, which are prepared in a format similar to that of petitions for leave to appeal.

If neither the administrator nor the respondent wishes to contest a recommendation, after the Hearing Board or the Review Board has issued a report and recommendation, the matter must still be brought before the supreme court for entry of a final order. In such a case, the clerk of the Commission is directed by Supreme Court Rule 753 to file the report and recommendation as an "agreed matter," and the Administrator must file a motion in the Supreme Court, asking that the report and recommendation be approved and confirmed. Because the court considers these cases to fall within the exercise of its inherent and original jurisdiction, it reserves to itself the opportunity to reject or modify recommended dispositions, even in uncontested matters.