April 25, 2018
In September 2017, this newsletter contained an article about the role of the Attorney Registration & Disciplinary Commission in combating the problem of unauthorized practice of law. As stated in the prior article, in December 2011, the Supreme Court of Illinois promulgated Rule 779 and vested the ARDC with the authority to investigate and prosecute unlicensed individuals and entities for practicing law without the Court’s permission. Although Illinois does not have any exhaustive list of the acts amounting to the practice of law, the Court has decided numerous cases that provide guidance. See generally, Chicago Bar Ass’n v. Quinlin and Tyson, Inc., 34 Ill.2d 116, 214 N.E.2d 771 (1966); People ex rel. Chicago Bar Ass’n v. Barasch, 406 Ill. 253, 8 N.E.2d 941 (1937); People v. Schafer, 404 Ill. 45, 87 N.E.2d 773 (1949); and People ex rel. Chicago Bar Ass’n v. Goodman, 366 Ill. 346, 8 N.E.2d 941 (1937). By implementing Rule 779, the Court gave the ARDC a public protection tool to take action where law enforcement agencies may not do so and private civil remedies have been ineffective. This piece will discuss the recent developments in the application of Rule 779, elaborate on the kind of matters brought to the Commission’s attention, and describe the dispositions in those matters.
What does the ARDC investigate? In 2017, the ARDC handled 113 UPL investigations. Those numbers included a variety of file types. Ninety-four of the investigations related to unlicensed individuals handling legal matters without permission to practice law. Another four pertained to allegations against non-attorney entities, rather than individuals. The remainder of the UPL investigations last year can be categorized as follows: six different matters involving disbarred attorneys practicing law, eight files against out-of-state attorneys for practicing law in Illinois without permission, and one matter involving allegations of practice by a suspended attorney. Where ARDC investigations involved licensed lawyers practicing law after removal from the roll for lack of registration or failure to complete continuing education courses, the files were not included within the UPL file tracking statistics. Among the 94 investigations into practice by unlicensed individuals, ARDC staff dealt with wide-ranging issues. Itemization of those matters is impractical, but a random sampling paints a clearer picture of the UPL landscape. Over the past year, such investigations varied from a patent agent exceeding his practice authority under federal law, to a non-attorney setting-up shop as a document preparation service, preparing court pleadings and motions for pro se parties in court cases. The ARDC had files as to independent paralegals assisting the public on legal matters without attorney supervision, a non-attorney preparing and filing tort claims in court for another person using a power of attorney, and unlicensed people providing legal advice regarding estate planning, debt resolution, immigration, and foreclosure defense matters. While the UPL allegations against individuals were diverse, the grievances against non-attorney entities were surprisingly concentrated in one field. That field was real estate. One grievance was submitted against a bank for systematically preparing deeds for loan recipients in connection with real estate transactions, while three other organizations were investigated for offering to assist with legal claims against mortgage lenders and providing foreclosure defense services. Since real estate transactions are not supervised by courts, UPL offenders may perceive their actions to be more difficult to detect, but it is difficult to discern why this type of UPL would be more concentrated among unlicensed entities in particular.
How does the ARDC handle problematic UPL cases? The Administrator has proceeded judiciously in determining how to proceed when confronting these issues. Wherever possible, he has directed that his counsel approach the matters with the goal of ending the unauthorized practice and avoiding further public harm. With this philosophy in mind, attempts are made to inform UPL Respondents of the available case law and rules prohibiting unlicensed practice and to obtain their agreements to refrain from such conduct. Utilizing this tact, most UPL investigations are closed without court action. The resolutions in closed cases are confidential per Supreme Court Rule 766, but they generally include written agreements to end the unlawful practices and may include restitution to the victims. Where Respondents are not receptive to requests to refrain from further UPL, there has been a pattern of misconduct, or there has been significant provable harm to victims that are cooperative, the Administrator has submitted the matters to the Inquiry Panels of the Commission for authorization to file formal court actions. In 2017, the Administrator filed four UPL complaints in the Circuit Courts. The charges in those cases, as permitted by Rule 779, included indirect criminal contempt and violations of the Attorney Act, 705 ILCS 205/1 et seq. The four formal cases against non-attorneys included charges against: a former law student that failed the bar exam and then offered legal services through a website, but refused to end her practice after an ARDC request; a repeat offender who prepared and delivered legal pleadings for numerous pro se divorce parties for fees; an uncooperative non-attorney that assisted a women with EEOC claims and a federal court action for a large amount of fees; and an unlicensed man who filed two different personal injury claims for a nursing home resident and continued handling the claims after being cautioned not to do so.
In UPL court actions, what have been the outcomes? The courts have meted out different sentences or judgments to fit each situation. In the case involving the recalcitrant law graduate offering legal services without bar admission, there was no victim actually harmed by the conduct, and the court simply imposed a civil penalty of $5,000 against the respondent and entered a judgment in favor of the Illinois Equal Justice Foundation pursuant to the Attorney Act. In contrast, in the proceeding relating to the non-attorney drafting divorce documents for others, even though full restitution had been paid prior to sentencing, the court convicted the respondent of indirect criminal contempt of court, put him on one year of probation, fined him $500, and entered a permanent injunction prohibiting him from providing any legal services in the future. Sentences for UPL offenders in previous years have included periods of incarceration, primarily for cases involving more egregious harm.
As stated in last year’s Court’s Connect article, the ARDC is not the only authority taking UPL enforcement action. Both the Attorney General’s office and the various State’s Attorneys’ offices have powers to proceed against UPL offenders, and the Attorney Act gives standing for lawyers and bar associations to bring civil suits in these instances. The ARDC has communicated regularly with the Attorney General’s office regarding UPL matters, and meets with the Illinois State Bar Association’s UPL Task Force on a consistent basis. Yet, where the other players in UPL enforcement elect not to act, and the circumstances warrant, the ARDC has exercised its authority under Rule 779 to end the unlawful practice of law and protect the public.