CBA Record

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.

ETHICS EXTRA

BY RICKY BREEN

Oh, No! What Have I Done?

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

Ricky Breen was a June gradu- ateof JohnMarshall LawSchool and a member of the Mor- rissey Scholars program.

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