September 23, 2019
Attorney discipline proceedings, if contested, can take a long time – well over a year – to move from formal disciplinary complaint to final order of discipline. What can be done to protect the public and the profession if an attorney’s ongoing conduct is causing or threatening harm during that time period? The Illinois Supreme Court can impose an interim suspension.
An interim suspension is just what it sounds like, a suspension from the practice of law that is put into place during disciplinary proceedings and runs until the proceedings conclude and a final disciplinary sanction is put into place. Interim suspensions are governed by Illinois Supreme Court Rules 761 and 774, which outline the grounds and the procedures for interim suspensions.
First, the grounds: the ARDC is required to seek an interim suspension whenever an attorney has been convicted of a crime that involves moral turpitude. Ill. S. Ct. R. 761(b). Moral turpitude has been defined as anything that is contrary to justice, honesty, or good morals (In re Pontarelli, 393 Ill. 310, 314 (1946)), or which involves fraud or fraudulent conduct. In re Vavrik, 117 Ill. 2d 408, 412-13 (1987). The ARDC may seek an interim suspension whenever an attorney has been charged with (as opposed to convicted of) a crime that involves moral turpitude or a crime that reflects adversely on the attorney’s fitness to practice law, and there is persuasive evidence to support the charge. Ill. S. Ct. R. 774(a)(1). An interim suspension may also be sought when 1) the ARDC’s Inquiry Board authorizes the filing of a disciplinary complaint that charges a violation of the Rules of Professional Conduct involving fraud or moral turpitude or threatening irreparable injury to the public, the attorney’s clients, or the orderly administration of justice, and 2) there appears to be persuasive evidence to support the charge.
Ill. S. Ct. R. 774(a)(2).
Next, the procedure: when an attorney is convicted of a crime that involves moral turpitude, the ARDC files in the Court, and serves upon the attorney, a petition seeking an order suspending the attorney until further order of the Court, accompanied by a certified copy of the judgment of conviction. Ill. S. Ct. R. 761(b). The Court is then required by rule to issue a rule to show cause as to why the attorney should not be suspended from the practice of law until further order of the Court. Ill. S. Ct. R. 761(b).
When an attorney is charged with a serious crime or is the subject of a serious disciplinary charge, the ARDC may file a petition for a rule to show cause. Ill. S. Ct. R. 774(a). The petition will describe the criminal or disciplinary charge lodged against the attorney and the proof expected to be offered in support of that charge, and explain why allowing the attorney to continue in the practice of law will harm the attorney’s clients, the public, and/or the administration of justice. The Court has discretion as to whether to issue a rule to show cause. Ill. S. Ct. R. 774(c)(4).
The Court may also issue a rule to show cause on its own motion. Ill. S. Ct. R. 774(a). The ARDC is tasked with serving upon the attorney any rule to show cause issued by the Court. Ill. S. Ct. Rs. 761(b)(2). 774(c).
The attorney who is the subject of a rule to show cause is provided an opportunity to file an answer to the rule. Ill. S. Ct. R. 774(c)(4).The Court will consider the ARDC’s petition and any answer filed and determine whether it believes it is appropriate to suspend the attorney from the practice of law until further order of the Court. Ill. S. Ct. Rs. 761(b)(3), 774(c)(4). If the Court imposes an interim suspension, the suspension is effective immediately. Ill. S. Ct. Rs.
761(b)(3), 774(c)(4). The interim suspension may include any conditions that the Court sees fit to put into place, such as requiring the attorney to notify clients of the interim suspension,
requiring an audit of the attorney’s bookkeeping materials and bank accounts, appointing a trustee to manage the attorney’s affairs, and/or ordering that the attorney participate in a physical or mental examination. Ill. S. Ct. R. 774(d).
In 2018, ten Illinois lawyers were placed on interim suspensions; four pursuant to Rule 761, and six pursuant to Rule 774. That total is generally consistent with prior years. The Rule 761 cases involved criminal convictions for 1) growing over 200 marijuana plants, possession with intent to deliver marijuana, and maintaining a drug house; 2) unauthorized access to a law firm partner’s computer to obtain information; 3) theft of between $10,000 and $100,000 from a law firm; and 4) wire fraud, and aiding and abetting a fraud. The Rule 774 cases involved charges of 1) wire and bank fraud; 2) child pornography; 3) mail fraud; 4) misappropriation of client funds; 5) dishonest collection of excessive fees; and 6) misappropriation of client funds, neglect, forgery, and subornation of perjury. Given the seriousness of the convictions and charges, one can see how the public and/or the legal profession would be harmed by allowing the attorneys who were the subject of these ten interim suspensions to remain in practice while disciplinary proceedings moved to a conclusion.
As noted above, the Supreme Court has discretion as to whether to impose an interim suspension. Occasionally, upon receiving an attorney’s answer to a rule to show cause, the Court will continue the rule until further order. In those situations, the rule is usually discharged when the Court enters a final order of discipline in the case. SeeIn re O’Connor, Nos. M.R. 26239 & 26428 (Jan. 17, 2014); In re Birt, Nos. M.R. 26382 & 27896 (May 18, 2016).
Interim suspensions provide a mechanism for the Supreme Court to help protect the public and the profession when there is good reason to believe that an attorney might cause harm during the pendency of disciplinary proceedings or when the egregious nature of an attorney’s
actions would bring the legal profession into disrepute in the eyes of the public if not addressed immediately. It is a tool that is selectively used but one that serves a purpose central to the Illinois Supreme Court’s plenary jurisdiction over the practice of law.