Ethical Considerations for the Workers’ Compensation Lawyer

1. Ethical Considerations for the Workers’ Compensation Lawyer Mary F. Andreoni ARDC, Ethics Education Counsel Workers’ Compensation Bar Association Ethics Luncheon April 26, 2010

2. New Rules of Professional Conduct Effective January 1, 2010 • Why? • World has changed • Old Rules based on old technologies (e.g. Rule 7.3) • Existing Illinois Rules based on 1983 guidelines • Practice of Law has changed • More lawyers = more licenses • 27,000 dual licensed Illinois lawyers (2007) • More mobility • Provides for consistency among states

3. Impact of New Rules • New Rules will NOT affect the way vast majority lawyers conduct their practices • The changes codify precedent, thus more notice to lawyers of conduct standards (e.g. Rule 1.18) • Contains Official Comments that provide helpful guidance to lawyers in interpreting Rules

4. Comments (New) • Not in 1990 Rules • Guidance and interpretation without having the force of a rule • More specific explanation of particular issues

5. New Rules to Illinois • Duties to Prospective Clients: Rule 1.18 • Lawyer Serving as Third-Party Neutral: Rule 2.4 • Duties in Non-Adjudicative Proceedings: Rule 3.9 • Non-Profit & Court-Annexed Limited Legal Services Programs: Rule 6.5

6. Duties to Prospective Clients: New Rule 1.18 • Defines prospective client • Establishes duties to prospective clients including: • Duty of confidentiality • Duty to avoid conflicts • To extent lawyer provides services shall provide reasonable care • Explains how to avoid obtaining disqualifying information • Protects prospective client’s confidential information without treating the consultation as the formation of an attorney-client relationship

7. #1 Confidentiality: Rule 1.6 • Broadens Scope of protected information • “all information relating to the representation” & permits disclosure by lawyer • Expands permissive disclosure • when “impliedly authorized in order to carry out the representation” • Client fraud • Lawyer to obtain advice about compliance with the Rules • Retains permissive disclosure: • Where required by law or court order • To establish claim or defense on behalf of lawyer in controversy between lawyer or client

8. #2 Scope of Representation: Rule 1.2 • R. 1.2(a) - Lawyer may take action impliedly authorized to carry out representation • R. 1.2(c) - Lawyer may limit scope of representation if limitation is reasonable and client gives informed consent (Keef v. Widuch) • R. 1.0(e) defines “informed consent” – adequate information & explanation of material risks & other available alternatives

9. #3 Financial Assistance to Clients: Rule 1.8 • Lawyer prohibited from providing financial assistance to clients but may advance courts costs & expenses of litigation – Rule 1.8(e) • Third person paying for lawyers services permitted under Rule 1.8(f) if: • Client gives informed consent; • No interference with representation; and • Confidential information protected. Comments [11]-[12]

10. #4 Clients With Diminished Capacity: Rule 1.14 • Changed Title from “Client Under a Disability” to “Client with Diminished Capacity” • Lawyer may take reasonably necessary protective action including consulting with individuals to protect client under Rule 1.14(b). See Comments 5-7 • Provides for emergency legal assistance where health, safety or financial interest of person is threatened. See Comments 9 & 10

11. #5 Handling Trust Funds and Property: Rule 1.15 • Rule 1.15 Safekeeping Property • Retains IOLTA guidelines • Check www.ltf.org if your bank has opted for unlimited protection by FDIC for trust account funds • Allows benign commingling (1.15(b)-deposit own funds only to pay amount of bank service charges) • Provisions of Rule 1.15(c) codify requirements of Dowling with respect to advance payment retainers. Also provides for fixed fees and general retainers

12. #6 Reasonable Fees and Expenses: Rule 1.5 • Includes both fees and expenses • Scope of representation, fees and expenses must be communicated to client • Writing “preferred” but not required for non-contingent fee agreements

13. #7 Candor Toward the Tribunal: Rule 3.3 • Changes Emphasis of Rule: Old Rule (Conduct) vs. New Rule (Candor) • Tribunal includes arbitrator. See Rule 1.0(m) defining “tribunal.” • Lawyer shall take reasonable remedial measures for client who intends to engage, is engaging or has engaged in criminal or fraudulent conduct • Comments 10 & 11 to Rule 3.3 provide examples of remedial measures

14. #8 Communications with Represented Persons: Rule 4.2 • Applies to communications with a “person” rather than with a “party,” clearing up ambiguity under prior rule • Comment [7] provides guidance concerning which constituents of a represented organization are persons represented by counsel under the rule • “Matter” interpreted by the Illinois Supreme Court in People v. Santiago, --- N.E.2d ----, 2010 WL 966493(Ill. March 18, 2010).

15. #9 Inadvertent Receipt of Information: New Rule 4.4(b) • Lawyer who receives a document relating to the representation of the lawyer’s client and knows that the document has been inadvertently sent shall promptly notify the sender. See Comments 2 and 3

16. #10 Multi-Jurisdictional Practice: Rule 5.5 • Specifies circumstances in which a non-Illinois lawyer may render temporary legal services in Illinois • Circumstances include: • Work in conjunction with an Illinois lawyer • Reasonably related to pending or potential proceeding in this or another jurisdiction • Reasonably related to pending or potential arbitration, mediation or other ADR proceeding • Arise out of or are reasonably related to lawyer’s practice in a jurisdiction where lawyer is admitted • Out-of-state lawyers under this Rule are subject to Illinois disciplinary jurisdiction under Rule 8.5

17. Information About the New Rules For a Copy of the New Rules Call the ARDC: 312-565-2600 (Chicago); 217-522-6838(Springfield) and or go to the ARDC website at: www.iardc.org For Guidance on the New Rules Call the ARDC Ethics Inquiry Hotline: 312-565-2600 (Chicago); 217-522-6838 (Springfield)