Ethical duties of a lawyer when they learn co-counsel has been removed from the Master Roll of Attorneys for failure to satisfy MCLE requirements.

Facts

An Illinois lawyer (Lawyer 1) was asked to prepare title and closing documents for another lawyer’s (Lawyer 2) client in a real estate transaction. After commencing work on the transaction, Lawyer 1 learned that Lawyer 2 has been removed from the roll of active lawyers for failure to comply with MCLE requirements. Lawyer 2 has also been dilatory in performing work on the matter that Lawyer 2 agreed to perform on the matter.

Questions

What are the duties of Lawyer 1 once that lawyer learns that Lawyer 2 has been removed? What duties does Lawyer 1 owe the client and whom, if anyone, is Lawyer 1 required to notify that Lawyer 2 has been practicing while removed from the Master Roll?

Opinion

Under Illinois Supreme Court Rule 796, all lawyers must comply with MCLE attendance and reporting requirements for each two-year period. The timing of each lawyer’s reporting period is based upon the first letter of the lawyer’s last name. Upon the failure of a lawyer to comply with the reporting requirements, and after failing to comply once notified by the MCLE Board of non-compliance, including non-compliance after the grace period expires, the director of the MCLE Board shall notify the ARDC of this non-compliance. On the same date that the ARDC receives the name of a lawyer who has failed to comply, the ARDC shall remove the name of that lawyer from the master roll for MCLE noncompliance. (Illinois Supreme Court Rule 796(e). The lawyer shall be reinstated only upon fulfilling the MCLE requirements and paying the proper fee. (Illinois Supreme Court Rule 796(h)). The automatic reinstatement is similar to the automatic reinstatement for failure to timely pay the annual ARDC registration fee. (Illinois Supreme Court Rule 756(i)).

Because an Illinois lawyer’s removal from the roll for an MCLE violation may arise from a variety of circumstances that do not constitute a violation of Ill. Rule Prof’l Conduct 8.4(b) or (c), Lawyer 1 should first contact Lawyer 2 and inform Lawyer 2 that he or she is aware of Lawyer 2’s removal. Lawyer 1 should also inform Lawyer 2 that Lawyer 1 can no longer participate in the transaction if Lawyer 2 continues to represent the client unless Lawyer 2 takes the necessary steps to be reinstated or if there are exigencies that require Lawyer 1 to continue so that the client does not suffer harm.

If Lawyer 2 has not remedied the violation and is not reinstated, Lawyer 1 would then have a duty to communicate Lawyer 2’s removal from the Master Roll to the client. In ISBA Opinion No. 92-07, we have previously determined that an “outside” lawyer hired by another lawyer or law firm to handle certain tasks on a matter owes the client the same duties under the Rules of Professional Conduct as does the original lawyer. While the facts presented do not tell us whether the client gave Lawyer 2 informed consent to the hiring of Lawyer 1, or whether the client was even aware that Lawyer 1 was working on the matter, Lawyer 1 is still under the obligations of the Illinois Rules of Professional Conduct. Under Rule 1.4(a)(3), Lawyer 1 has the duty to keep the client reasonably informed about the status of the matter. The fact that Lawyer 2 is removed is certainly an important development. In this case, Lawyer 1 should inform the client that he or she informed Lawyer 2 of the removal and that Lawyer 2 has not been reinstated. Lawyer 1 would only be able to continue to perform work on the matter if the client consents to Lawyer 1’s representation and a lawyer-client relationship is created, separate from the relationship the client engaged with Lawyer 2. Otherwise, Lawyer 1 should cease work on the matter.

Our rules provide that “[a] lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction or assist another in doing so.” Ill. Rule Prof’l Conduct 5.5. Ill. Rule Prof’l Conduct 8.4(a) also prohibits a lawyer from knowingly assisting or inducing another to violate the Rules of Professional Conduct. However, because this is an administrative removal that will be automatically lifted once Lawyer 2 complies with the MCLE requirements, this committee has determined that Lawyer 1 is not under the obligation of Rule 8.3(a) to report the administrative removal so long as Lawyer 2 does not continue to practice until reinstated.

There is no duty to notify the title company.

Conclusion

An Illinois lawyer, retained by another Illinois lawyer to perform services on a matter, who learns that the hiring lawyer is removed from the Master Roll due for MCLE violations must notify the client of the hiring lawyer’s removal if the hiring lawyer does not take remedial action to be reinstated. In addition, the lawyer must cease work on the matter unless separately retained by the client under a new lawyer-client agreement, or unless exigencies of the matter require the lawyer to continue representation so that the client is not harmed. The lawyer should also inform the hiring lawyer that he or she cannot continue to work in the matter unless the hiring lawyer is reinstated. The lawyer, however, may continue to work on the matter if separately retained by the client. There is no duty to report the hiring lawyer to the ARDC unless the hiring lawyer continues to practice without being reinstated, nor is there a duty to report to the title company.

References

• Illinois Supreme Court Rule 796(e)(h)
• Illinois Supreme Court Rule 756(i)
• ISBA Opinion 92-07
• Ill. Rule Prof’l Conduct 1.4(a)(3)
• Ill. Rule Prof’l Conduct 5.5
• Ill. Rule Prof’l Conduct 8.4(a)(c)
• Ill. Rule Prof’l Conduct 8.3(a)