CBA Record July-August 2022

Legal Ethics: A Retrospective By John Levin

I n anticipation of the 150th anniver sary of The Chicago Bar Association, this retrospective covers the develop ments in the law related to professional responsibility over the last 50-plus years as reflected in the work of the CBA’s Pro fessional Responsibility Committee and in the articles and columns in the CBA Record . The underlying theme of this study is that the substance of the law regulating the bar has evolved to reflect changes in the environment in which the practice of law takes place. In 1968 Illinois did not have a com prehensive set of disciplinary rules. (I use 1968 as the base year because that was the year I was admitted to the Illinois bar.) The CBA and the ISBA had each adopted a version of the ABA Model Code of Professional Responsibility. Prior to the creation of the Illinois ARDC in 1973, special committees of the CBA and the ISBA were responsible for hearing disci plinary complaints against Illinois lawyers. At that time, if you were a lawyer with a question about professional ethics, you could submit the question to a bar asso ciation, and its professional responsibil ity committee would write an opinion on which you could rely. That jurisdiction was given to the IARDC in 1973, but there was no statewide code until 1980. Since then, the Illinois code has been revised several times. A section-by-section, year-by-year analysis of these revisions is far beyond the scope of this article. How ever, while the structure and language of

vices that link potential clients with law yers. In 1968, lawyers found clients largely by personal reference. The very idea of paying a service to connect potential cli ents with qualified lawyers to perform a specific service for a published competi tive price without ever meeting the client in-person would have been unthinkable. However, the evolution of the internet to become the general public’s research tool of choice compelled the organized bar to accept it. So, over time, a series of amend ments to Rules 7.1, 7.2, 7.3 5.4 and 1.5 and their comments, have permitted the current referral climate on the internet. Rule 5.5 – Unauthorized Practice of Law, Multijurisdictional Practice of Law, and its comments lay out a complex struc ture permitting the multijurisdictional practice of law. In 1968, it was fairly clear that if you were not licensed in Illinois, you could not provide any legal services in Illinois. However, the increase in the ease of communication and the growth in the number of multistate entities requir ing legal representation has prompted amendments to the Rules to allow some degree of multistate practice. Most other states have rules similar to 5.5 allowing Illinois lawyers to represent clients there. One change that exemplifies the change of the “profession of law” to the “busi ness of law” was the adoption of Rule 1.17 - Sale of Law Practice. When the adoption of the Rule was debated, there was much concern about how the attorney-client relationship – which was highly personal –

the code, including many of the section numbers, have changed based on changes in the ABA Model Code, most of the con cepts have not changed. What has changed is the nature of the practice of law and the self-image of the law as a profession. As an exercise, let us look at how the rules and their application have evolved since 1968. (The section numbers referred to below are those of the current Illinois Rules.) Rule 1.1 – Competence, states that a lawyer must provide competent representation. This seems uncontrover sial, but the increase in the volume and complexity of substantive law between 1968 and today has made maintaining general competence significantly more challenging. In addition, the requirement that competence includes knowledge and skill relating to the “relevant technology” has made what once seemed an ancillary subject into a fundamental requirement. Rules 1.3–Diligence, and1.4–Commu nication, once again seem uncontroversial. Lawyers should work with due dispatch and communicate with their clients. How ever, the concept of communication and due dispatch in the days of the land line and U.S. mail is a magnitude different from today’s cell phone and email. As we are all aware, lawyers are now on call 24/7. It is well known that legal advertising went from being prohibited to allowed (see Rule 7.2 - Advertising). However, this change was forced on the legal profession by U.S. Supreme Court decision. More interesting is the evolution of internet ser

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