Unregistered Practice: All Risk, No Benefit

No Sale 2

It’s lawyer registration season again – and it’s usually not a difficult process for practicing lawyers looking to report, pay, and move on to next year. But it becomes problematic for some lawyers each year. Lawyers sometimes put off their registration until it’s too late, or they neglect the process altogether, whether due to personal crisis or simple inattention. Either way, if they don’t complete the process by February 1, they’re removed from the Roll of Attorneys until they register. What can they expect to happen after that?

One thing is for sure: though registration is (or should be) a routine process, it isn’t trivial. Only lawyers who are listed on the Roll are authorized to practice law in this state. Other states refer to a removal from the roll of attorneys as an “administrative suspension,” or some similar term. We don’t say that in Illinois, but we might as well. If you’re off the Roll, you’re as good as suspended. You can’t go to court, advise clients, or do anything that constitutes the practice of law. Think you can give it a whirl without getting found out? Think again: whether you know it or not, there may be someone out there who’s motivated to look up your status on the ARDC website, and to make any unregistered practice an issue.

For example, a litigation opponent could file a motion to disqualify you, and may even argue that any filings made while unregistered constitute nullities. This argument may not be well taken – see People v. Brigham, 151 Ill.2d 58 (1992), in which the Supreme Court held that representation by unregistered lawyers, as opposed to those who were never licensed to practice, does not violate a defendant’s Sixth Amendment rights. Nevertheless, the unregistered practitioner would not want that motion to be filed. The matter could also be reported to the Administrator of the ARDC, and an investigation would ensue. The Administrator would expect the lawyer to describe the reasons for his or her removal; any actions taken during the period of removal; and the steps the lawyer has taken or is taking to register and thereby cure the problem.

If the lawyer cannot provide satisfactory answers to those questions – or, worse, if the attorney doesn’t cooperate with the Administrator’s inquiry – the Administrator will not hesitate to seek formal discipline against the attorney. Usually, the formal cases that are filed on facts like these involve lawyers who practiced while unregistered for a lengthy period of time, often six months or more. The Administrator may also file cases against lawyers who took extensive actions while unregistered, or whose unregistered practice caused some kind of harm to a client or a third party.

If a lawyer has practiced law while unregistered, she may have violated Rule 5.5(a) by “practicing law in a jurisdiction in violation of the disciplinary regulation” of that jurisdiction. The Administrator may have little difficulty establishing that that violation occurred, particularly if it can be shown, clearly and convincingly, that the unregistered lawyer filed a pleading, appeared in court, attended an out-of-court proceeding or meeting, or provided legal advice. But is there another rule that the lawyer violates simply by practicing while unregistered?

The Administrator often takes the position that there is: Rule 8.4(c), which prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation. But the charge is not made in all unregistered practice cases, and sometimes, when it is made, it is dropped as part of a final resolution.

The theory underlying the dishonesty charge is that by holding herself out as a lawyer while removed from the Roll of Attorneys, the lawyer has misrepresented her status to courts, clients, opposing counsel, and the public at large. The Administrator sometimes pursues the charge even absent any evidence that the lawyer has made an affirmative misrepresentation to anyone; the theory is that by not correcting any misimpressions, the lawyer has lied by omission.

The Administrator has filed 4 cases during calendar year 2018 alleging unregistered practice, and he has charged violations of Rule 8.4(c) in all of them. In 2017, the Administrator also filed 4 cases alleging unregistered practice, but only charged that conduct as dishonesty in 3 of them. The lawyer who escaped the dishonesty charge on those allegations was accused of several other kinds of misconduct involving dishonesty; yet the Administrator did not deem the lawyer’s unregistered practice to have been dishonest.

In 3 cases involving unregistered practice that were resolved by way of consent petitions between 2017 and 2018, only 2 of the lawyers were required to admit, as part of the consent petition, that their unauthorized practice had involved dishonesty. One lawyer was not required to admit that, despite having been charged with dishonest unauthorized practice. That is to say: the Administrator dropped the charge as part of the resolution of the case. The consent petitions reveal no change in the essential nature of the allegations; only that the Administrator elected not to proceed on the charge.

Defense attorneys are always heartened when the Administrator declines to pursue a charge, especially one that involves dishonesty. But this defense lawyer also advocates an approach that recognizes that the unregistered practice of law need not be considered an inherently dishonest act, absent affirmative misrepresentations concerning registration status.

But for the practicing Illinois lawyer, the main takeaway here should be: register!

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