Ill. R. Prof'l Conduct (2010) Preamble & Scope

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 a nd

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 de alings 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 representation. A lawyer should keep

in confidence inf ormation 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. 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.

[7] Many of a lawyer’s professional responsibilities are prescribed in the Rules 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 diffic ult 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 l awyers. Neglect of these responsibilities compromises

the independence of the profession and the public interest which it serves.

[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 th e 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 permis sive 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 natur e 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. 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 deter mining 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 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.

[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 admini stration 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 instr uctive

and not directive. The Comments are intended as guides to interpretation, but the text of each Rule

is authoritative.