I wrote previously about the concept of proactive management-based regulation (“PMBR”), an attorney discipline concept that has been studied and implemented in some jurisdictions worldwide. The word was that Illinois was looking to be the first jurisdiction to adopt it in the U.S., and with our Supreme Court’s January 25 amendment to its Rule 756(e), that’s now happened.
This change does not mean that the ARDC is no more, or that you can’t still get an ominous-looking letter asking for you to respond to a client’s accusations. The traditional disciplinary enforcement mechanisms remain. But PMBR, as Illinois is defining it, will require changes in how you register with the ARDC each year. The degree to which the change will impact your practice will hinge primarily on one factor: whether you are currently covered by malpractice insurance.
Until now, our registration process has required you to disclose whether you’re covered, and if you are, the date upon which the coverage dates of the policy. That information was collected not as a means of requiring lawyers to obtain coverage, but as a way to report to the Court general numbers and trends associated with malpractice coverage in Illinois.
The ARDC has previously discussed PMBR in the context of “succession planning,” reacting to another data point it received in the last registration year – the number of lawyers self-reporting that they lack a formal plan for their practices in the event of sudden illness, incapacitation, or death. But PMBR, as implemented, will have broader aims than simply ensuring that solo practitioners and small-firm lawyers have succession plans.
Under amended Rule 756(e), the Court has still not taken the step of requiring all lawyers in private practice to obtain malpractice coverage. Rather, the Rule now requires that if you report that you are a private practitioner without coverage, you must participate in a four-hour online “self-assessment” concerning your practice. The assessment will be
administered by the ARDC, and the information you give will be kept confidential. The idea is to allow the ARDC to observe some number of lawyers in a way that is disassociated from its investigative function, with a view to assisting uninsured attorneys with rule compliance and avoiding potential disciplinary problems before they occur.
But how will it work? We don’t know yet what the “self-assessment” will entail; reports indicate that the ARDC is currently developing it. Several questions come to mind:
- What information will the uninsured lawyer be required to
- What will be the format of the self-assessment (multiple
choice questions? Essays requiring qualitative analysis?)
- How will the assessment be a four-hour experience? Is it
expected that the act of providing information will take that long, or will
there be hours of content that the lawyer views or listens to?
- What will the scope of the ARDC’s review of the information
- What actions can the reporting lawyer expect the ARDC to
take after the completion of the self-assessment?
Amended Rule 756(e) answers that last question in part by providing that “[t]he
self-assessment shall be designed to allow the lawyer to earn four hours of MCLE professional responsibility credit and to provide the lawyer with results of the self-assessment and resources for the lawyer to use to address any issues raised by the self-assessment” (emphasis added). If the ARDC creates and administers the self-assessment, and the self-assessment will be designed to produce results, then that means that
the ARDC will participate in producing some kind of evaluative statement or report to the lawyer about actions the lawyer should (must?) take. At this early stage, without knowing the contours of either the self-assessment or its results, it’s hard to envision what the results will look like or what they will mean. But we do know that they will exist, meaning that the 756(e) procedures will be more active and result-oriented than the previous simple reporting of whether a lawyer has malpractice insurance.
We also know that lawyers undergoing the self-assessment can expect that ARDC will keep the information they provide confidential except by reporting it “in the aggregate,” and that “[n]either the Administrator [of the ARDC] nor the lawyer may offer th[e] information into evidence in a disciplinary proceeding.” The Rule thus mandates that
self-assessment information be absent from formal disciplinary proceedings – complaints against lawyers filed pursuant to Rule 753 or 761 (or, in rare cases, confidentially pursuant to Rule 758). But what about confidential investigations? Those are disciplinary proceedings too, even though they do not occur before a tribunal and do not involve the admission of evidence. They involve the giving of evidence and information to the Administrator, though, and the Rule is silent regarding whether the information a lawyer gives during her self-assessment could become part of the information that the Administrator has or can use during a disciplinary investigation.
Illinois lawyers – not just those who will be subject to the self-assessment but all practitioners – will need clarity on this vital point.
In future posts, as more information becomes available, we’ll look at the ideas and programs that will be developed as the implementation of PMBR proceeds. We’ll also look at the other substantive rule changes the Court enacted on January 25, and other trends and developments in the suddenly-fast-changing world of Illinois legal ethics.