Here’s an update on a case we reported on last year, where a lawyer agreed to a settlement on behalf of his plaintiff client — who happened to already be dead at the time. The court of appeals in the Illinois case, Robison v. Orthotic & Prosthetic Lab, (predictably) tossed out the settlement based on the lawyer’s failure to reveal that his client had died almost a year before the confidential settlement was concluded.

The court said that intentionally concealing the material fact of the death inflated the value of the damages claim, and the lawyer had no authority to enter into the settlement, as no personal representative for the estate had replaced the deceased client — and the court referred both lawyers to the state disciplinary board: the plaintiff’s lawyer for making “material omissions and misrepresentations,” and the defendant’s lawyer for failing to report the misconduct.

The plaintiff’s lawyer has now filed his answer before the disciplinary board — and it provides additional food for thought.

Advice-of-counsel, good-faith defenses

Significantly, the lawyer is offering advice-of-counsel and good faith as his defenses. He says, among other things, that before he settled his deceased client’s products liability case, he “researched the issue and discussed the matter with his law partners” at his firm, which currently appears to have eight lawyers. He concluded that “the death of his client … was ‘information relating to the representation of a client’ which he had a duty to preserve under … Rule 1.6(a),” relating to the duty of confidentiality.

Therefore, the lawyer averred in his answer to the disciplinary complaint, although the court of appeals eventually rejected his interpretation of the rule, he ” believed in good faith [at the time of the settlement] that he was precluded from disclosing the [client’s] death” to opposing counsel or the court.

In Illinois, as everywhere else, Rule 1.6 bars a lawyer from revealing a client’s confidential information. But under Model Rule 3.3, which Illinois has adopted, you can’t lie to a court by making a false statement of fact or law, and the duty of candor to the court can trump the duty of confidentiality: it applies “even if compliance requires disclosure of information otherwise protected by Rule 1.6.”

Mitigating? Exonerating?

What is the impact of an advice-of-counsel defense in a disciplinary case? In a future post, we’ll consider the various kinds of ethics advice available to lawyers, and whether the lawyer here got the kind of advice he needed. (Spoiler alert: probably not.)

But for now, the question is: If you get advice from competent counsel in a situation involving complicated ethics issues, are you absolved of any misconduct charge that might result?

The question seems to be open in Illinois. Cases from some other jurisdictions appear to say that advice of counsel is not exonerating in a disciplinary case — but it can be mitigating.

In a 1998 Kentucky case, for example, the supreme court disciplined a lawyer who had failed to reveal on his bar application that he had previously pled guilty to a criminal charge. The court rejected the defense to the disciplinary charge — that the lawyer had consulted with his brother, who was a district court judge, and with his criminal defense lawyer and had relied on their advice that because the case had been sealed, he did not need to disclose it on his bar application.

In a Colorado case, the supreme court likewise rejected a tacit advice-of-counsel defense, viewing the duty to comply with ethics rules as resting on individual lawyers, who cannot “delegate that duty or responsibility to another under the umbrella of advice of counsel and thereby create a defense to a violation” of the ethics rules.

Courts have, however, viewed a lawyer’s attempt to comply with ethics rules as a mitigating factor. In the Kentucky case, for example, the court levied a 30-day suspension, rather than the one-year sit-out that three dissenting judges would have imposed, in part because the lawyer had decided to get advice about his obligations. In a New Hampshire disciplinary case, the supreme court’s language suggested that a lawyer’s mere good-faith belief that he was on the right side of the ethics rules in drafting a will codicil that benefitted his law partner would not be a complete defense, but it might be used in mitigation.

In Oregon, Rule 8.6(b) of the state’s Rules of Professional Conduct gives mitigating effect to a lawyer’s “good faith effort to comply” with written advisory ethics opinions of the state bar’s board of governors and the state bar’s legal ethics committee.

Take care in taking counsel

We’ll have more to say soon about some of the bells and whistles that you should think about in seeking out ethics advice. In the meantime, stay tuned for more developments in this Illinois case, and whether the advice-of-counsel defense works here.