Board of Governors

May 17, 2013

Agenda Item 97 Special Committee on Collaborative Law

MEMORANDUM

To: Special Committee on Collaborative Law From: CJN Date: February 26, 2013 Re: Separation of Powers and SB 31 ______________________________________________________________________________ On February 21, 2013 the Special Committee requested that I research the issue of whether SB 31 (collaborative law) posed separation of powers issues. The results of my research and analysis are below. I believe that many of SB 31’s provisions likely violate the separation of powers. I. Separation of Powers The legislature is prohibited from enacting laws that unduly infringe upon the inherent powers of the courts. Lebron v. Gottlieb Memorial Hospital, 237 Ill.2d 217, 233, 930 N.E.2d 895, 912 (2010), citing Best v. Taylor Machine Works, 179 Ill.2d 367, 411 (1997). Legislative enactments that directly and irreconcilably conflict with rules of the court on matters within the court’s authority also violate the separation of powers doctrine. Burger v. Lutheran General Hospital, 198 Ill. 2d 21, 33, 759 N.E.2d 533, 542 (2001). As a matter of preserving the independence of the judiciary, court rules supersede inconsistent statutory provisions. Kunkel v. Walton, 179 Ill. 2d 519, 529, 689 N.E.2d 1047 (1997). Nevertheless, the separation of powers doctrine is not absolute nor is it violated “merely because separate spheres of governmental authority may overlap.” Best, 179 Ill. 2d at 411. Laws that compliment the authority of the judiciary or that have only a peripheral effect on court administration may be acceptable. Kunkel, 179 Ill. 2d at 528. The Illinois Supreme Court has made it clear that lawyer regulation is within its sole authority. E.g., Ford Motor Credit Company v. Sperry, 214 Ill. 2d 371, 382, 827 N.E.2d 422, 429 citing People ex rel.Chicago Bar Association v. Goodman, 366 Ill 346 (1937)(“This court has the inherent power to define and regulate the practice of law in this state.”). This includes the “power to prescribe rules governing attorney conduct…”. Ford Motor Credit Company, 214 Ill.2d at 382 citing People ex rel. Brazen v. Finley, 119 Ill.2d 485, 494 (1988). The comprehensive scheme of lawyer regulation, including the Illinois Rules of Professional Conduct, disciplinary procedures and penalties, and the establishment of the ARDC are all part of the Court’s exclusive authority over the regulation of lawyers. Brazen, 119 Ill. 2d at 494. More applicable to SB 31 issues, the Court recognizes by rule that “lawyers who represent clients in alternative dispute resolution processes are governed by the Rules of Professional Conduct. RPC 2.4, Comment [5].

No Illinois case specifically discusses whether a statute affecting a lawyer’s professional conduct violates the separation of powers doctrine. But cf. Cripe v. Leiter, 184 Ill. 2d 185, 703 N.E.2d 100 (1998)(Refusal to apply Illinois’ Consumer Fraud Act to the conduct of lawyers in part due to the Court’s exclusive role in lawyer regulation.); Brazen, 119 Ill. 2d 485(a lower court’s attempt to regulate lawyer conduct via a certification of ethical compliance was struck down as an encroachment upon the Supreme Court’s sole authority to regulate the practice of law). Separation of powers cases in Illinois have addressed legislative encroachment in such areas as: assessing damages (Lebron, 237 Ill. 2d at 242 (legislative limitations on noneconomic damages in medical malpractice cases encroached upon the judicial prerogative of considering excessiveness of jury damages award); and discovery (Kunkel, 179 Ill. 2d at 531(automatic waiver of any privilege of physician confidentiality inconsistent with and undermines the court’s comprehensive scheme for fair and efficient discovery). (Conversely, statutory requirements to attach an evidentiary transcript to a court order for the issuance of a tax deed (People ex rel. County Collector v. Jeri, Ltd., 40 Ill. 2d 293 (1968)); or imposing a 48 hour waiting period in divorce cases (Strukoff v. Strukoff, 76 Ill. 2d 53, 389 N.E.2d 1170 (1979)) were not found to violate the separation of powers.) Other states have addressed the issue and come to differing conclusions on the interplay between statutes and lawyer conduct. Beyers v. Richmond, 594 Pa. 654, 937 A.2d 1082 (2007)(Separation of powers doctrine and the court’s inherent authority to regulate attorney conduct bars application of Pennsylvania’s Unfair Trade Practices law to prosecute attorney conversion); Irwin v. Surdyk’s Liquor, 599 N.W.2d 132 (1999)(legislative delegation of attorney fee regulation to the executive branch violates separation of powers as an impingement on the court’s inherent authority to regulate lawyers); Chambers v. Stengel, 37 S.W.3d 741 (2001)(criminal penalties for improper client solicitation appropriate as a valid exercise of police power); Santa Clara County Counsel Attorney’s Association v. Woodside, 7 Cal. 4th 525, 869 P.2d 1142 (1994)(legislatively enacted bargaining rights applicable to county employed lawyers upheld absent a direct and fundamental conflict between the statute and lawyers’ ethical obligations). II. SB 31 Analysis SB 31 clearly regulates the professional conduct of lawyers in dealing with their clients (and others) when engaging in collaborative law. The provisions dealing with disqualification, imputation of conflicts, mandatory assessments and due diligence, treatment of client information, and others appear to have more than a “peripheral” effect on the administration of justice. These provisions impact the entire lawyer-client relationship during a collaborative law process. In addition, many of these provisions appear to be in conflict, or at least inconsistent, with the Illinois Rules of Professional Conduct (“RPC”). As such they are constitutionally suspect under the separation of powers doctrine. Provisions of SB 31 that appear to be problematic include: *Section 9: This section mandates the disqualification of a party’s lawyer from representing a party before a tribunal in a proceeding related to the collaborative matter (with some exceptions). Lawyer “disqualification,” however, is governed by the RPC under conflicts of interest (RPC 1.7, 1.8, and 1.9) and withdrawal (RPC 1.16). Section 9’s mandatory disqualification requirement is inconsistent with the RPC which envisions a case by case and continuous evaluation of conflicts, a client’s informed consent, and duties of communication. The elimination of discretion in judicial acts has been referenced as a rationale for finding a separation of powers violation. Best, 179 Ill. 2d at 413.

Section 9 also imputes lawyer disqualification to all other lawyers in a disqualified lawyer’s law firm. Here too, imputation is an aspect of lawyer conduct already governed by the RPC 1.10. In addition, Section 9 appears inconsistent with RPC 1.10 because RPC 1.10 provides for the waiver of the imputation. It also appears that section 9 does not allow for the screening of lateral hires as does RPC 1.10. *Section 10: This section allows a lawyer in a firm who is otherwise disqualified from representing a collaborative law party because of the imputed disqualification to nevertheless represent the party if the lawyer does not charge a fee for the representation and the party satisfies income criteria established by the firm. Generally, this carve-out for low income and pro bono representation infringes upon the Court’s authority to establish equal client rights for all legal consumers, regardless of income. (Whether such a carve-out violates the constitutional prohibition on “special legislation” was not reviewed, but a “special legislation” analysis often accompanies a court’s discussion of separation of powers.) Currently, the RPC do not contain any differing set of lawyer obligations based upon a client’s income. Specifically, section 10 seems inconsistent with the RPC in two respects: (1) section 10(b)(1) requires a lawfirm to establish income criteria for pro bono clients – currently no such requirements exists or are even contemplated, especially in that there are no mandatory pro bono requirements in Illinois; and (2) section 10(b)(3) would allow a “screening” procedure to defeat the imputed disqualification – currently the RPC only allows screening in situations of lateral hires, not as a means to undermine imputation or defeat conflicts of interests. *Section 11: This section seeks to permit representation notwithstanding an imputation of disqualification under section 9 for government agencies. Such a government agency exception conflicts with the RPC’s equal applicability to lawyers for all income classes. As noted, imputation, as well as the ability of lawyers to represent parties that may be affected by a conflict of interest, is conduct governed under the RPC. *Section 12: This section provides that a party “shall make timely, full, candid, and informal disclosure of information related to the collaborative matter without formal discovery.” Such informal disclosures are mandatory. This section may infringe, or at least conflicts with, the Court’s authority to give effect to and preserve a fundamental right and principle of the attorney-client relationship – the confidentiality of information related to the presentation. The purpose of client confidentiality is to encourage clients to communicate “fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.” RPC 1.6, Comment [2]. Only when a lawyer is fully informed can he or she provide effective representation. Id. However, this important purpose is potentially impeded by section 12’s mandatory disclosure which may lead a prospective client to withhold information from their lawyer. *Section 14: This section provides that a lawyer must assess with a prospective collaborative party the factors the lawyer reasonably believes are relevant in determining whether collaborative law is appropriate. It also requires that lawyers provide the prospective party information the lawyer reasonably believes is sufficient for the party to make informed decisions about participating in the collaborative law (or other dispute resolution) process. These concepts are currently encompassed in RPC 1.2 addressing limited scope representations and RPC 1.4 on communication. However, section 14 requirements may be inconsistent with RPC 1.2 in that: (1) the “lawyer reasonably believes” standard applicable to lawyer disclosures contained in section 14 is likely more subjective than the RPC 1.2 standard of “reasonable under the circumstances;” and (2) the limited scope representation under RPC 1.2 does not carry with it

the automatic disqualification requirement as a prerequisite to engage in a limited scope representation. *Section 15. This section requires a lawyer to investigate whether a prospective party to a collaborative law process has a history of violence or coercive behavior. This investigation obligation continues throughout the collaborative process. These obligations seem inconsistent with a lawyer’s obligations as expressed in a number of Supreme Court rules. Under RPC 3.1, as well as S. Ct. Rule 137, a lawyer’s duty of investigation extends only to the facts and law of the particular case. Performing a historical investigation on a prospective party’s (not just the lawyer’s client) prior behavior is inconsistent with these obligations. In addition, to the extent section 15 implies (or demands) a duty to make a psychological assessment of a prospective party it is inconsistent with the role of a lawyer as recognized by the Court. RPC 2.1, Comment [4] (“Matters that go beyond strictly legal questions may also be in the domain of another profession. Family matters can involve problems within the professional competence of psychiatry, clinical psychology or social work…”). Finally, as a general matter, SB 31 appears to have the effect of legislatively granting recognition to a specialty or subspecialty of the law. This is clearly inconsistent, and likely conflicts with, with RPC 7.4 that “states the general policy of the Supreme Court of Illinois not to recognize certifications of specialties or expertise… .” RPC 7.4, Comment [2]. III. Conclusion SB 31 controls the manner in which lawyers deal professionally with their clients. This type of regulation of the practice of law however, is solely within the authority of the Supreme Court. It represents more than a peripheral impact on lawyer conduct. As such it infringes upon the Court’s authority. Specifically, as set out above, many of the provisions of SB 31 seem to conflict, or at least are inconsistent, with the Courts Rules of Professional Conduct. Where statutes conflict and are inconsistent with Court rules, the separation of powers doctrine is violated.