June 25, 2018
There are three types of disciplinary suspensions imposed by the Illinois Supreme Court for attorney misconduct: suspensions that end of their own accord after a set amount of time elapses (known informally as “straight suspensions”), suspensions that are stayed in full or in part by a term of probation, and suspensions that run until further order of the Court (known as “UFO suspensions”). This article will attempt to provide a basic understanding of the third type, UFO suspensions.
A UFO suspension differs from a straight suspension in that it does not have a fixed end date. If, for example, the Court imposes a five-month straight suspension on Attorney A effective on March 15, Attorney A can simply resume practice on August 15. In contrast, a UFO suspension runs until the Court enters an order agreeing that the disciplined attorney has proved his or her rehabilitation and reinstating the attorney to the practice of law. There are two basic things to know about UFO suspensions: why they are imposed, and under what circumstances they are lifted.
First, why are they imposed? A UFO suspension is a serious disciplinary sanction. It is generally appropriate when there is a legitimate question as to whether an attorney will be able or willing to practice law ethically after serving a term of suspension, in other words, when it might be risky for clients or the public if the attorney simply resumes practice after serving a straight suspension. For example, when an attorney commits misconduct and that misconduct is causally related to a substance abuse or mental health issue suffered by the attorney, a question arises as to the need for a UFO suspension. The stronger the evidence that the attorney recognizes and has been making progress in dealing with the substance abuse or mental health issue, the less risk the attorney poses upon resuming the practice of law, and the less need there is for a UFO suspension. On the other hand, where the evidence shows a causal connection between misconduct and a substance abuse or mental health issue, and where there is evidence that the attorney denies a problem or has not made progress in addressing the problem, there is a greater need for added protection before the attorney is again allowed to resume the practice of law, and it is more likely that a UFO suspension will be imposed. In the case of In re Dees, 2014PR00133 (Review Bd., Sept. 15, 2016), approved and confirmed¸ No. M.R. 28383 (Jan. 13, 2017), the Court imposed a UFO suspension on an attorney who had neglected client matters, because the evidence showed that he had failed to make meaningful progress in addressing his depression and anxiety, which were causally related to the neglect. The attorney’s condition had “not improved to the point where he can represent clients without exposing them to unreasonable risk.” Dees, Review Bd. at 16.
Attorneys can also be the subject of UFO suspensions based on their attitude towards their misconduct, their clients, and/or the Court’s disciplinary authority. In one of the most-cited cases of this type, In re Houdek, 113 Ill. 2d 323 (1986), the Court suspended an attorney for 24 months and until further order of the Court for commingling and converting $45 that his client had given him in connection with a real estate transfer, neglecting that transfer, and lying to the client and to the ARDC about his actions. The attorney also failed to appear at his disciplinary hearing and refused to make restitution to his client. The Court noted that the misconduct initially “involved a single case and a small amount of money” but that the attorney had exacerbated his circumstances by the way in which he dealt with his client and the disciplinary system. The Court explained that “the lack of any evidence that [the attorney] is willing or able to meet professional standards of conduct in the future” warranted a UFO suspension. Houdek, 113 Ill. 2d at 326, 327. The Houdek case has been invoked by Hearing and Review Boards literally hundreds of times since its publication. Case law has also developed to the point where an attorney’s failure to appear for his or her disciplinary hearing, by itself, will virtually guarantee a UFO suspension.
How does one get reinstated after being suspended until further order of the Court? The answer is governed by Supreme Court Rule 767 and ARDC Rules 400 through 415. When the specified term of suspension has ended, for example, after five months in the case of an attorney suspended for five months and until further order of the Court, the attorney can file a verified petition for reinstatement with the Court. The petition must set out the details of the attorney’s life since discipline was imposed, including his or her residences, employment, income, assets, tax liabilities and general financial dealings, any civil or criminal legal involvement, and any medical or psychiatric treatment for substance abuse or mental illness issues. Notice of the petition is given to the chief judge of each circuit in which the attorney had practiced law and to the president of each local or county bar association where the attorney had practiced law. Persons having information relevant to the attorney’s reinstatement are invited to communicate with the ARDC.
The ARDC will investigate for accuracy the information contained in the petition. At a later point, the reinstatement case will go to a Hearing Board panel, composed of two lawyers and one non-lawyer, for an evidentiary hearing. In that proceeding, the attorney, now called the petitioner, will have the burden of proving his or her rehabilitation by clear and convincing evidence. That burden is heavier than a civil case’s preponderance-of-the-evidence standard but lighter than the beyond-a-reasonable-doubt criminal standard. In re Tuchow, 90 CH 305 (Review Bd., Oct. 12, 1994) at 8-9, approved and confirmed, No. M.R. 6757 (Jan. 25, 1995).
The Hearing Board is bound to consider six enumerated factors (with discretion to consider others) when determining the petitioner’s “rehabilitation, present good character and current knowledge of the law.” Ill. Sup. Ct. R. 767(f). Those factors are (1) the nature of the misconduct for which the petitioner was disciplined, (2) the petitioner’s maturity and experience at the time discipline was imposed, (3) whether the petitioner recognizes the nature and seriousness of his or her misconduct, (4) whether the petitioner has made restitution (if applicable), (5) the petitioner’s conduct since discipline was imposed, and (6) the petitioner’s candor in presenting evidence in support of the petition. Ill. Sup. Ct. R. 767(f).
The Hearing Board will issue a report recommending either that the petition for reinstatement be denied or that it be granted (or granted with conditions). If either party disagrees with the Hearing Board’s report, it can appeal to the Review Board. If neither party disagrees with the Hearing Board’s report, the matter goes directly to the Supreme Court. The Court has the final word on whether a disciplined attorney is reinstated. In all, the reinstatement process can take up to two years to complete.
A UFO suspension is a serious sanction reserved for serious misconduct cases. It is employed to better protect future clients and the public when there is reason to believe that an attorney who is subject to discipline may be a risk to engage in further misconduct when back in practice.