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Attorney Discipline: Recidivism

3/26/2019

March 26, 2019

A lawyer who has been disciplined for ethical misconduct more than once is generally referred to as a recidivist. Recidivism is well established as an aggravating factor in disciplinary proceedings, so a lawyer on his second trip through the disciplinary process will almost inevitably receive a harsher sanction than he would if he had no prior discipline. The issue of recidivism is not without some nuance, however, and we will explore the issue in this article.

The Supreme Court has held that it is a “paramount obligation” of every lawyer in Illinois to know and abide by the Rules of Professional Conduct, and it has warned that ignorance of what the rules require is not a defense to charges of misconduct. In re Cheronis, 114 Ill. 2d 527, 535 (1986).The Court has further explained that a lawyer who has already been disciplined for misconduct is expected to “have a heightened awareness of the necessity to conform strictly to all of the requirements of the Rules of Professional Conduct.” In re Storment, 203 Ill. 2d 378, 401 (2002). Accordingly, the Court’s concern for the public and the profession is elevated when a previously-disciplined lawyer again violates his ethical obligations.

The most blatant and aggravating type of recidivism occurs when an attorney is disciplined for a certain kind of misconduct and then, not too long after the order of discipline is entered, the attorney again engages in that specific misconduct. That scenario tends to show pretty clearly that the attorney is either unwilling or unable to practice law within the bounds of the ethics rules. For example, the attorney in In re Levin, 77 Ill. 2d 205 (1979), was suspended for three months in 1979 for neglecting a client’s matter. After 1979, he neglected other client matters and made misrepresentations to clients, which resulted in new charges. In 1984, he was suspended for three years and until further order of the Court on the subsequent misconduct charges, a substantial sanction requiring him to prove his rehabilitation before he would again be allowed to practice law. In re Levin, 101 Ill. 2d 535 (1984). When determining the sanction in the second proceedings, the Court noted, “It is a cause for concern that the court’s previous discipline of the respondent did not result in sufficient changes in his behavior to prevent these later instances of neglect.” Levin, 101 Ill. 2d at 541.

On the other end of the recidivism spectrum lies the situation in which an attorney previously disciplined for one type of misconduct commits a different type of misconduct much later in time. In that scenario, the attorney, although a recidivist, might have a viable argument that his first discipline should not significantly increase his second disciplinary sanction because each episode can be seen as an isolated slip-up. An example of this situation is In re Vrdolyak, 137 Ill. 2d 407 (1990). There, the attorney, between 1977 and 1986, had represented City of Chicago employees in workers’ compensation cases against the city while he had been serving as a Chicago alderman. He was censured for that conflict of interest in 1990. Sometime after his 1990 discipline, he advanced funds to clients in violation of the Rules of Professional Conduct. He was censured for that misconduct in 2000, with the Review Board explaining that the dissimilarity between the two types of ethical infractions and the time between them lessened the prior discipline’s aggravating impact. In re Vrdolyak, 98 CH 17 (Review Bd., May 12, 2000) at 15-18, recommendation adopted, No. M.R. 16866 (Sept. 22, 2000).

A unique recidivism-related issue arose in In re Teichner, 104 Ill. 2d 150 (1984). The attorney in that case had undertaken an extensive client solicitation scheme in 1974 after a train explosion in Decatur. In 1980, he was suspended for two years for that misconduct. It later came to light that, in 1977, after the solicitation scheme but before he was disciplined for it, the attorney had charged a client an excessive fee and converted $7,000. In 1984, the excessive fee/conversion case was before the Court. The Court noted that the attorney was not a recidivist “in the ordinary sense” because of the timing of the episodes of misconduct and the disciplinary proceedings. It explained that if both cases of misconduct had been presented “in their normal sequence or simultaneously,” disbarment would have been “virtually automatic.” It concluded, however, that despite the unique timing issue and the fact that the attorney had already been subject to a two-year suspension, disbarment remained the appropriate sanction. Teichner, 104 Ill. 2d at 167-68.

The Teichner case has been cited many times for the proposition that a prior order of discipline is always relevant to the sanction analysis in a second disciplinary case, with the weight given to that prior discipline depending on factors like the timing and nature of the episodes of misconduct. Along those same lines, if an attorney commits new misconduct while involved in ARDC disciplinary proceedings, that fact will aggravate the sanction imposed when the attorney is disciplined for the new misconduct. See In re Kirby, 2010PR00098 (Review Bd., Feb. 19, 2014) at 13-14, recommendation adopted, No. M.R. 26679 (May 16, 2014). An attorney in the midst of disciplinary proceedings, like one who has already been disciplined, is expected to pay especially close attention to his ethical obligations.

So, how many disciplined lawyers become recidivists? In 2006, the ARDC reviewed the previous 25 years of discipline records and determined that 18.2% of lawyers who had been suspended or censured during that time were at some point disciplined a second time. During that same 25-year period, 26.9% of lawyers who had been placed on probation were later disciplined for new misconduct. In other words, over three-quarters of all the Illinois lawyers who had been disciplined during that time span did not become recidivists.

Finally, how bad does recidivism get? ARDC records show that there have been approximately 18 Illinois lawyers who have been the subject of disciplinary sanctions four times over the course of their legal careers. All but three of those lawyers found themselves disbarred or suspended until further order of the Court in their final disciplinary proceedings. None of the lawyers disbarred or suspended until further order have, as yet, been reinstated to the roll of attorneys.