July 23, 2018
Last month’s article mentioned the three types of disciplinary suspensions imposed by the Illinois Supreme Court for attorney misconduct, and discussed suspensions until further order of the Court. This article will attempt to provide a basic understanding of a second type of suspension: suspensions stayed in full or in part by a term of probation.
Supreme Court Rule 770, which addresses the types of discipline that can be imposed, authorizes probation as a possible sanction in conjunction with a term of suspension. Suspensions may be fully or partially stayed, and include certain conditions that the attorney must follow, including periodically reporting to the Commission. Ill. Sup. Ct. R. 770(f), 772(b). When an attorney violates a probationary condition, the stay may be vacated, and the attorney may be required to serve the previously-stayed suspension. Ill. Sup. Ct. R. 772(c). A sanction imposing probation may also include the condition that the suspension continues until further order of the Court, if probation is revoked. Ill. Sup. Ct. R. 770(f).
Generally, cases in which probation has been imposed fall into two types: disability and non-disability. In determining if probation is warranted, the Hearing and Review Boards’ task is to recommend a discipline based on the twin goals of determining whether the attorney is a fit person to practice law and whether the public and profession will be protected and safeguarded if the attorney were to practice law. In re Sutherin, 03 CH 61 (Review Bd., Nov. 21, 2005) at 13, recommendation adopted, No. M.R. 20636 (Sept. 20, 2006). Probation suggests that the attorney has a problem or condition that can be fixed. Thus, the purpose of probation is to correct problems that had a detrimental impact on the manner in which an attorney runs his or her practice. It is not the purpose of probation to simply provide a more lenient sanction for attorney misconduct.
With regard to disability-type probation, in 1983, the Supreme Court enacted Supreme Rule 772 to govern the prescription of a period of probation for an impaired attorney who suffers from substance abuse or mental illness, such as depression or bipolar disorder. Pursuant to that Rule, attorneys seeking a disability-type probation must prove that: 1) they can perform legal work without causing the courts or profession to fall into disrepute; 2) they are unlikely to harm the public during rehabilitation and their probation conditions can be adequately supervised; 3) they have a temporary or minor disability that does not require treatment and transfer to inactive status; and 4) their misconduct does not subject them to disbarment. Ill. Sup. Ct. R. 772(a).
Staying a suspension by probation in disability cases allows for the monitoring of an attorney’s treatment and provides the attorney with an incentive to complete rehabilitation or to continue with treatment. In re Gergets, 99 CH 104 (Review Bd., July 1, 2002) at 15, approved and confirmed, No. M.R. 18324 (Nov. 26, 2002). Accordingly, the Court has regularly denied probation where an attorney has declined treatment, has failed to provide medical evidence of a diagnosis or treatment, or has failed to show that he or she is unlikely to harm the public during a period of treatment. In those cases, the suspensions have typically included an “until further order” requirement, meaning that the attorney would have to prove to the Court that the attorney has recovered from or has control over the impairment before being permitted to practice law.
In the absence of a disability requiring probation under Supreme Court Rule 772, probation has also been imposed in cases involving institutional deficiencies, which led to the misconduct and which could be monitored during a period of probation. Authority for this type of probation finds its roots in the language of In re Jordan, 157 Ill. 2d 266, 276 (1993): when an attorney’s “right to practice law needs to be monitored or limited rather than suspended or revoked.”
Probation in these types of non-disability cases can be appropriate when such a sanction would safeguard the public and the administration of justice, while giving the attorney an opportunity to correct the conditions in his or her practice that led to the misconduct. Thus, in some cases, probation has been imposed where the attorney’s office management problems resulted in neglect of client matters or failure to communicate with clients, or where trust account problems resulted in misappropriating funds. See e.g., In re Smith, 168 Ill. 2d 269, 296-98 (1995), in which the Supreme Court held probationary conditions requiring implementation of a case tracking system and a system for recording client contacts were appropriate to correct an attorney’s severely inadequate office management practices.
Because probation is designed to assist an attorney to correct an impairment or deficiency that caused the alleged misconduct, the Court has typically declined to impose probation where the misconduct does not result from an alleged disability, or from an alleged office management or trust account deficiency. See e.g., In re Spak, 2013PR00132 (Review Bd., July 23, 2015), Administrator’s petition for leave to file exceptions as to sanction allowed, No. M.R. 27597 (Nov. 17, 2015) (attorney failed to deposit settlement funds into a client fund account and engaged in dishonest conduct by using $2,260 that was owed to a lienholder; athough the Hearing and Review Boards had both recommended a suspension stayed, in part, by probation, the Supreme Court imposed a straight suspension of one year). Probation is also not appropriate when the attorney’s behavior is not amenable to monitoring or where the misconduct is due to circumstances which cannot be monitored or improved. Thus, probation is not appropriate in cases involving intentional deceit or repeated acts of intentional conduct for the attorney’s own benefit. For example, if the attorney’s conversion was intentional or dishonest, probation is ordinarily not imposed.
The possibility that a term of suspension will be imposed, if the attorney violates the probationary conditions, is meant to ensure the attorney’s compliance with ethical rules and that the attorney does not repeat the misconduct. Jordan, 157 Ill. 2d at 275. So, when an attorney has demonstrated an inability or failure to acknowledge or express remorse for the misconduct, or has demonstrated a possibility that the attorney would repeat the misconduct, probation is not warranted. See e.g., In re Hoffman, 08 SH 65 (Review Bd., June 23, 2010) at 21-22, recommendation adopted, No. M.R. 24030 (Sept. 22, 2010), in which probation was not imposed for an attorney who knowingly or recklessly made false statements regarding the qualifications and integrity of a circuit court judge and an administrative law judge, and later made remarks about the Hearing Panel’s objectivity and qualifications, which demonstrated the disciplinary process did not have any deterrent or remedial effect on the attorney.
Probation is a serious sanction. Given the appropriate circumstances, it can accomplish the goals of the disciplinary system because it is an opportunity for an attorney to treat the impairment or correct the problems that led to the misconduct. It also permits the public to continue to be served by a capable attorney, although one who is subject to conditions. But, it is important to remember that probation is not automatic, it is not always warranted, and it carries an administrative burden for both the Commission and the attorney; the attorney must comply with conditions and periodically report to the Commission, and the Commission must monitor the attorney’s probation.