May 5, 2010
Sanction For Post-Suspension Practice Of Law
An Illinois attorney was suspended for three months in 2005 for making a campaign contribution that did not disclose the true source of the funds. The payment was intended to assist a judge in retiring campaign debts. The donor's motivation was to be a "big shot" rather than to buy a judgeship.
The attorney was then charged with unauthorized practice based on conduct that took place during the period of suspension. The Hearing Board recommended that the charges be dismissed as unproven. The Administrator noted an exception and sought a one-year suspension.
The Review Board found the charged misconduct and has recommended a three month suspension.
The post-suspension conduct at issue:
This case also involves additional conduct beyond just preparing a draft brief, to be reviewed, and which was reviewed, by a licensed attorney prior to filing. [Respondent] prepared a motion for leave to file the brief instanter and filed the motion with the brief. He also contacted opposing counsel and discussed a legal issue with him. There can be no serious question that [his] preparation of the motion for leave to file the brief and his discussion of legal issues with opposing counsel constituted the practice of law.
The board noted the difficulties that face an attorney suspended for a relatively short period of time:
We are sympathetic to the dilemma facing an attorney, such as [respondent], who is suspended for a relatively short period of time. This is especially problematic for a sole practitioner. Absent help from a friend, as [another attorney] provided here, a sole practitioner does not have another attorney readily available to cover his or her practice during the period of suspension. There are practical realities that must be addressed, including how to deal with pending cases and protect client interests. Supreme Court Rule 764 clearly specifies what is required of attorneys who are disbarred, disbarred on consent, or suspended for six months or more. However, Rule 764, on its face, does not apply to attorneys suspended for less than six months. Such an attorney is not, and should not be, required to shut down his or her practice; the shorter suspension recognizes that the attorney is not a person who should be put out of business. Yet, the attorney still must refrain from engaging in activity that would constitute the practice of law. Navigating this maze poses significant practical obstacles, even where, as here, the respondent has the advice of counsel.
We also recognize that some attorneys may not be familiar with the case precedent cited in this majority report that establishes conduct such as [his] as improper. Even opposing counsel, who ultimately determined that he should report the conduct, struggled with the question of whether or not [he] had crossed the line. Attorneys suspended for any length of time must comply with their obligation to refrain from practicing law, as established by the cases. Present law is not entirely clear as to the practical steps required of attorneys suspended for less than six months. Therefore, we respectfully suggest that the Court may wish to consider giving further guidance to the bar, either by rule changes or an opinion, with regard to those practical steps.
[Respondent] clearly tried to comply with his obligations and to protect his clients during the period of his suspension. This intent is critical and distinguishes this case from others in which attorneys were severely sanctioned for effectively continuing to practice law, despite a suspension, in a clear and intentional disregard of the suspension order. [His] efforts, and those of his attorney, are significant factors in our sanction recommendation.
A dissent would find that the charges were not proven. (Mike Frisch)
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