In my last post, I discussed “deferred prosecutions” under ARDC Rule 108 – matters that are resolved before the Inquiry Board of the Commission without a formal complaint being voted. This option, while not without its pitfalls for respondent-attorneys, at least avoids the tribulations and trauma of a public disciplinary proceeding.
Now, a new, similar option has arisen, one that potentially assists a respondent-attorney even more: Commission Rule 56, entitled “Diversion.”
The chief difference between Rule 108 and Rule 56 is that under the former, a referral to the Inquiry Board is required, whereas the latter addresses what the Administrator may do in an investigation short of an Inquiry referral. The Administrator has always had broad powers, in the investigative phase, to evaluate the practice of the lawyer being investigated and identify concerns with that lawyer’s practice. He has had the authority to continue investigating and communication with the attorney about those concerns, to suggest remedial measures that the attorney could take, and to monitor (in an informal way) the attorney’s progress in adopting those measures. Rule 56 does not appear to add to the Administrator’s powers in those respects, but it spells them out, codifying them and establishing them as permissible aims of a disciplinary investigation.
That does not, or at least should not, mean that Rule 56 is surplusage. Rather, it can be seen as an effort to reframe the ARDC’s investigative work under the rubric of “proactive management-based regulation,” or “PMBR,” which we’ve discussed before. Rule 56 tracks the philosophical aims of PMBR by emphasizing that the Administrator can “identify [a] concern” about a lawyer’s practice, rather than find a rule violation and target the lawyer for prosecution. The focus, in theory, shifts away from punishing the lawyer for misdeeds, and toward assisting the lawyer in implementing better practices. That is one of the stated goals of PMBR.
Rule 56 also makes it clear that the Administrator may, after securing an attorney’s agreement to address the identified concern, close the investigation into the attorney. The Administrator would then monitor the attorney’s compliance outside the confines of an investigation. That concept is new to Illinois disciplinary regulation. Previously, if the Administrator closed an investigation for any reason, that ended the matter, although investigations could (and still can) be reopened if, for example, new information comes to light. There was no post-closure monitoring. Now, though, there can be.
Does the lawyer benefit from that aspect of Rule 56? Perhaps it’s a neutral event in a practical sense: if the Administrator can reopen the investigation for virtually any reason, and the whole thing is confidential anyway, does it matter if the investigation is closed or open? I argue that it does matter. The closure of the investigation is a psychological lift to the lawyer. It is the removal of regulatory jeopardy, which is a good event for the lawyer even if it’s temporary or not truly guaranteed. Closure allows the lawyer to focus on the conditions the Administrator wants her to remedy, without the sense of a proceeding of some kind hanging over the lawyer’s head. It also allows the lawyer to report to her legal malpractice insurer that an investigation has been closed, which can only be better than reporting that the investigation continues.
Most of all, closure can allow the lawyer to resume her focus on her daily life and practice, with less of a sense that regulatory action is impending in some way, even as there is new or renewed emphasis on working on a problem area in the practice. That would be to the benefit of the lawyer and her clients, who would be best served by a lawyer free of distractions and newly dedicated to improving her practice.
The foregoing, though, must be read with some caution, as I have not yet seen Rule 56 invoked or put into practice in any way. (Not that I could or would write about it, had one of my clients experienced a Rule 56-related situation.) As such, I can’t be sure of exactly how the Administrator of the ARDC sees the rule, how it is or will be used, or how sanguine we can be about the possibility of attorneys (and clients) being actively helped by the rule. This may be one of the ultimate your-mileage-may-vary developments in disciplinary law, as its application seems to be able to be invoked at the discretion of an ARDC attorney handling an investigation. It’s therefore not possible to predict when and how it will come up. But we should all be aware of it, and we should look for ways to urge its application, toward the best interests of all involved in the disciplinary system.