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ETHICS
EXTRA
BY RICKY BREEN
Y
ou are a lawyer, pressed by time,
family activities, job commitments,
and continuing legal education
requirements on top of client expectations.
You have many tasks to do and deadlines to
meet, but your child has taken ill and you
forget to file that pleading. You intend to
take steps to remedy your mistake in the
morning, but then your car breaks down.
Things cascade from there.
A week later, your client calls for an
update on his matter. What do you do:
Admit your oversight, blame it on your
innocent paralegal, or try to hide your
mistake and hope it never comes to light?
Unlike Shakespeare, this comedy of
errors will not delight. This mistake could
come back to haunt you and presents the
ethical dilemma of whether a lawyer must
report an error to a client. The answer is
“yes,” with the understanding that disci-
plinary authorities consider a variety of
factors when determining the degree of
punishment for a lawyer’s error. A critical
factor is whether the client would have a
claim for malpractice against the lawyer.
If so, and if there is also a violation of the
Rules of Professional Conduct, the punish-
ment can be severe.
The Attorney Registration and Disci-
plinary Commission and ultimately the
Illinois Supreme Court examine lawyers’
failure to report errors to clients on a slid-
ing scale. Three rules are critical.
First, Illinois’ Rule of Professional
Conduct 1.4(b) states that a lawyer “shall
explain a matter to the extent reasonably
necessary to permit the client to make
informed decisions regarding the represen-
tation.” Second, Rule 1.4(a)(1) states that a
lawyer “shall promptly inform the client of
any decision or circumstance with respect
to which the client’s informed consent is
required by the rules.” Third, Rule 1.7 also
imposes a duty on the lawyer to step down
if “there is a risk that the representation
of one or more clients will be materially
limited by…a personal interest of the
lawyer.” The lawyer’s own interests must
not adversely affect the representation of
the client. The first two rules control the
conduct of lawyers and impose a duty on
lawyers to own up to their mistakes when
representing clients. The third admonishes
lawyers to step aside when their interest
overrides loyalty to the client, and they
cannot maintain objective judgment.
Lawyers are Human, Too
Brian Pollock, in “Surviving a Screw-up,”
points out that normal human instincts
explain lawyers’ hesitation to inform
clients of mistakes. 34 LITIG (No.2) 24
(2008). “Embarrassment, desire to protect
reputation, the need to please, and fear
of the consequences” are key factors that
drive lawyers to hide their mistakes from
the client.
Thus, in
In re James Bentivoglio
, Com-
mission No. 06 SH 12, M.R. 21135
(November 17, 2006), the ARDC respon-
dent, a firm associate, was assigned to
represent a defendant in an employment
contract case in 2001. His assignment was
to evaluate whether a counterclaim was
warranted; he decided it was, but never
filed a counterclaim. In addition to failing
to file the counterclaim, he failed to comply
with discovery to the extent that the court
twice imposed monetary sanctions, in
November 2002 and December 2003.
The respondent paid these sanctions out
of his own pocket and never informed the
client of the sanctions. The court eventu-
ally granted the plaintiff’s motion for a
default judgment roughly three years after
Bentivoglio had been assigned the case. The
respondent informed his client of the judg-
ment against him, but did not tell the client
that it was a default judgment. Nearly four
years after being given the assignment the
respondent further complicated the prob-
lem by misrepresenting to a supervising
partner that a counterclaim had been filed,
that the client had paid one of the sanc-
tions, and that only one sanction had been
entered instead of two. Thus, Bentivoglio
failed to keep his client properly informed
of proceedings that under Illinois Rules
1.4(a)(1) and 1.4(b) required the client’s
informed consent.
For his misconduct, and with the pres-
ence of mitigating factors, the Illinois
Supreme Court, on consent, imposed a
30-day suspension for the respondent’s
negligence and misrepresentation. Ben-
tivoglio’s several mistakes led him to lie to
both the client and the supervising partner.
Mitigating Factors
In
In re Kenneth Marquis Battle
, Com-
mission No. 2014PR00017, M.R. 27084
(January 16, 2015), Battle failed to file
a personal injury case within the statute
of limitations. In addition to his initial
mistake, Battle engaged in a series of
miscommunications with the client about
the incident and her medical condition.
Eventually she became suspicious and
contacted the clerk of the court. When
she confronted Battle about his conduct,
he met with her and offered a settlement
agreement, which would relieve him of
liability upon his payment to her of the
settlement monies. Moreover, he never
advised her to seek advice of independent
counsel. In preparing the settlement agree-
ment Battle violated Illinois Rule 1.7 as he
put his own personal interest above that of
the client.
CBA RECORD
51
Oh, No! What Have I Done?
Ricky Breen was a June gradu-
ateof JohnMarshall LawSchool
and a member of the Mor-
rissey Scholars program.
continued on page 57