The mediation option for attorney discipline cases: are some disciplinary cases good candidates for mediation? This lawyer-mediator says "yes.".

Could a formal mediation program for attorney discipline relieve the burden on the Attorney Registration and Disciplinary Commission (ARDC) and improve the public perception of the profession? There are many reasons to think so.

Mediation typically allows quicker resolution of cases, saves judicial resources, avoids the expense and uncertainty of trials and appeals, increases participant satisfaction with the dispute resolution process, and--perhaps best of all, at least from the attorney's standpoint--comes with a guarantee of confidentiality and mediation privilege. It is a good fit in cases where the public interest in attorney discipline will not be compromised by a confidential mediation process.

Some jurisdictions, notably New York, are successfully using mediation in attorney disciplinary cases. Here in Illinois, Rule 108 of the Rules of the Attorney Registration and Disciplinary Commission (commission rule 108) incorporates some features of mediation but lacks key components such as confidentiality and the mediation privilege.

While mediation is not right for serious misconduct cases, a formal mediation program would provide a low-cost way to resolve disputes among lawyers and clients that do not involve repeated misconduct, significant harm to clients or the administration of justice, criminal conduct, substance abuse, or other grave disciplinary issues. Mediating low-level disputes would save justicesystem resources and reduce the trauma for the subject lawyers.

This article provides a brief overview of mediation, describes the kinds of discipline cases that come before the ARDC and which ones are good candidates for mediation, takes a look at a current ARDC approach to low-level disputes and why mediation is a better option, and highlights a New York program that could be a model for Illinois and other states.

Mediation overview

Mediation is a form of alternative dispute resolution "in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement" about a dispute. (1) Unlike arbitrators, mediators do not apply the law, resolve factual disputes, or adjudicate cases. (2)

Key differences between mediation and arbitration include the mediation privilege created by the Uniform Mediation Act, 710 ILCS 35/1 et seq ("Act"), and the guaranteed confidentiality for communications between parties and the mediator required by some court rules. (3) The statutory mediation privilege protects mediation communications from unauthorized disclosure and prevents their use as evidence in judicial, administrative, arbitral, and other proceedings. (4) The privilege does not extend to some communications, such as those involving actual or threatened crimes, and the Act provides for limited "good cause" exceptions. (5)

The Act, which took effect in Illinois on January 1, 2004, is intended to "foster[] the early resolution of disputes." (6) Because a mediation settlement is "specifically tailored to [the parties'] needs and interests," participants often have greater satisfaction with the process, as compared with other forms of dispute resolution. Confidentiality and the mediation privilege promote a frank exchange of ideas about the dispute, building participants' confidence in the process and its outcome. (7)

The growing use of mediation to resolve complex civil cases is instructive. In 2001, the Illinois Supreme Court adopted Supreme Court Rule 99 endorsing mediation as an important tool for doing so.8 The report of the 2008 Illinois Judicial Conference states that court-approved civil mediation programs are operating in 10 judicial circuits, including Cook County. (9) The Alternative Dispute Resolution Coordinating Committee of the Judicial Conference noted that the court-annexed civil mediation programs are "successful" and are considered by "many parties as a necessary and integral part of the Court system." (10)

The nature of ARDC disputes

The ARDC disciplinary system is intended to protect the public, maintain the integrity of the legal system, and safeguard the administration of justice. (11) The ARDC's broad mandate encompasses a wide variety of disputes. (12) The majority of grievances brought to ARDC allege problems with an attorney-client relationship. (13)

The ARDC process involves several levels: the initial intake/investigation, the inquiry board, the hearing board, and the review board. (14) ARDC proceedings ordinarily remain confidential until a complaint is filed with the hearing board and served on the respondent attorney. (15) In 2008, approximately 4 percent of the charges made to ARDC resulted in the filing and service of a public complaint. (16)

All orders imposing discipline recommended by the hearing or review board (other than reprimands) must be approved by the Illinois Supreme Court. (17) The full ARDC process, including hearing and review, often takes several years.

For a variety of reasons, the ARDC declines to prosecute some cases. (18) The commission makes a diligent effort to screen many minor disputes out of the system quickly, but some investigations take more than a year before they are closed without formal disciplinary action. (19) The length of an investigation often depends upon the nature and complexity of the issues, as well as upon the sources and volume of information that ARDC counsel must review. (20)

Unlike some other jurisdictions, Illinois does not provide a mandatory alternative remedy for fee disputes. Fee disputes comprise a significant number of the charges that ARDC declines to address. (21) A commentator recently observed that "[t]he time has come for the Illinois Supreme Court to consider and implement a fee dispute mediation or arbitration process. ..." (22) A fee dispute arbitration program is now operating in the Domestic Relations Division of the Circuit Court of Cook County. (23)

ARDC Rule 108

Commission Rule 108 offers one way to divert cases from the public discipline process. (24) Under that rule, the ARDC's inquiry board may defer public disciplinary proceedings for a year or more if the alleged misconduct is deemed minor.

Commission Rule 108 does not apply when the misconduct allegedly involves dishonesty, misappropriation, criminal conduct, or significant harm (unless restitution is made a condition of deferral). Successful compliance results in dismissal of the charges without public disclosure.

Unlike a formal mediation program, however, the Rule 108 procedure does not require a neutral mediator, client participation, or confidentiality for communications between the parties and the mediator, and the mediation privilege does not apply. In fact, commission rule 108(c)(5) requires the respondent to acknowledge that his or her admissions may be used as evidence in any further ARDC proceedings.

Thus, while commission rule 108 permits deferral of some disputes into a non-public and less formal process, the requirements of Rule 108 are at odds with the concepts of confidentiality and privilege upon which mediation depends.

The New York attorney-client mediation program

Some jurisdictions--New York being a notable example--have adopted mediation programs that divert selected allegations of attorney misconduct away from the disciplinary process. Unlike commission rule 108, the New York attorney-client mediation program fully incorporates the mediation concepts of confidentiality and privilege.

The goal of the New York program is "to address a client's underlying interests and needs, while minimizing costs for attorneys in defending minor complaints and encouraging positive relationships between attorneys and their clients and the disciplinary office." (25) Mediators are trained volunteer attorneys who meet requirements established by the Appellate Division of the New York Supreme Court.

Referral to mediation is within the discretion of the disciplinary committees appointed by the appellate division. Candidates for referral are cases where "there has been a breakdown in the attorney-client relationship and where the complaint could be resolved best through conciliation and not formal disciplinary proceedings." (26) The program excludes cases involving allegations of escrow violations, criminal conduct, a pattern of misconduct, substance abuse, or impairment. (27)

Mediation conferences, files, and correspondence are confidential but subject to the mediator's obligation to report previously undisclosed ethical misconduct. New allegations of ethical misconduct disclosed during the process result in termination of the mediation.

The New York program "deserves wide replication," according to one observer. (28) The ABA has promulgated Model Rules for Mediation of Client Lawyer Disputes where the lawyer's alleged conduct does not warrant a formal disciplinary proceeding. (29)

Which ARDC cases are good candidates for mediation?

Clearly, a formal mediation program could be a useful alternative intermediate step for some minor cases that would otherwise be closed without any action at all, or alternatively, moved into the public hearing process. While 35 percent of cases filed with the hearing board in 2008 involved claims of fraud and probably were not appropriate for mediation, a significant number of cases involved less serious conduct. (30) For example, more than 13 percent of new complaints filed in 2007 and 2008 included claims of excessive or improper fees or failure to provide competent representation (sometimes coupled with other allegations). (31)

In addition, a significant number of disciplinary cases adjudicated by the hearing board involved only minor misconduct (for which a reprimand was an acceptable sanction) or no actionable misconduct at all. In 2007, of 113 disciplinary cases adjudicated by the hearing board, 10 resulted in recommendations of dismissal or reprimand. (32) In 2008, 10 of 137 cases resulted in dismissal, summary judgment for respondent, or reprimand. (33) Another 17 cases resulted in censure. (34)

Those 10 cases from 2007 apparently did not involve charges of misappropriation, criminal misconduct, patterns of serious misconduct, substance abuse, or impairment, any of which would automatically exclude them from a deferral program. (35) Thus, at least some cases might be resolved through a mediation program without compromising the important public interest in attorney discipline.

Conclusion

The trend toward mediation of complex civil cases should be examined closely to see if a formalized mediation program can be a useful tool in the attorney discipline process. The Illinois attorney discipline process has evolved over time into a model for other states.

It could be improved by a mediation program, used at the discretion of the ARDC administrator to resolve appropriate cases faster, with less expense and burden for respondents and the public, and with due regard for protection of the public and the integrity of the legal system.

(1.) See 710 ILCS 35/2.

(2.) Compare 710 ILCS 5/1 et seq (Uniform Arbitration Act) with 710 ILCS 35/1 et seq (Uniform Mediation Act).

(3.) See Cir. Ct. Cook County Rules 20.04(b), 20.07, 21.04(B), 21.07.

(4.) See 710 ILCS 35/4.

(5.) See 710 ILCS 35/6. Cook County Law Division Mediation Rule 20.07 also creates an exception for situations in which rules of professional conduct require the reporting of a mediation communication or when disclosure of a communication is necessary to defend against a lawsuit or claim for malpractice or other misconduct. The mediator cannot be compelled to provide evidence of a mediation communication in any lawsuit or claim against an attorney or party participating in the mediation, however. Cook County Chancery Division Mediation Rule 21.07 does not have a similar exception; it follows the Uniform Mediation Act. Individual circuits have adopted their own rules of confidentiality and privilege. See also USDC, ND Ill, Local Rule 83.5 (recognizing a privilege for acts and statements made in "non-binding alternative dispute resolution").

(6.) See Uniform Mediation Act, Prefatory Note, 2001, available at http://www.mediate.com/articles/umaJune01draft.cfm.

(7.) Id.

(8.) See Ill S Ct Rule 99; see also USDC, ND Ill, Local Rule 16.3 (recognizing mediation privilege in voluntary mediation program for trademark cases).

(9.) Those circuits (and any applicable local rules) are the First, Eleventh (Rule 105), Twelfth (Rules 21.01 et seq), Fourteenth (Part 26), Sixteenth (Article 12), Seventeenth (Rules 2.08, 2.09), Eighteenth (Article 14), Nineteenth (Part 20.00), and Twentieth (Administrative Order dated October 26, 2004).

(10.) See 2008 Ill Judicial Conf Rep at 66, available at http://www.state.il.us/court/supremecourt/jud_conf/AnnualReport/2008/ JudicialConfReport2008.pdf.

(11.) See In re Howard, 188 Ill 2d 423, 434, 721 NE2d 1126, 1132 (1999); In re Timpone, 157 Ill 2d 178, 197, 623 NE2d 300, 309 (1993).

(12.) See Ill S Ct Rule 752.

(13.) See 2008 ARDC Annual Rep at 8, available at http://www.iardc.org/AnnualReport2008.pdf.

(14.) See Ill S Ct Rules 752, 753.

(15.) See Ill S Ct Rule 766.

(16.) See 2008 ARDC Annual Rep at 10 (cited in note 13).

(17.) See Ill S Ct Rule 770.

(18.) Mary Robinson, Avoiding ARDC Anxiety: A Disciplinary Primer, 84 Ill Bar J 452 (Sept 1996).

(19.) See 2008 ARDC Annual Rep at 12 (cited in note 13).

(20.) Id.

(21.) New York has a separate fee dispute resolution program which permits clients to request mediation or arbitration of fee disputes. See www.nycourts.gov/admin/feedispute.

(22.) John Levin, Fee Disputes: Time for Illinois to Take Action, 23 CBA Rec 3, 63 (2009).

(23.) See 750 ILCS 5/508(c)(4); Brochure, The Chicago Bar Association Matrimonial Fee Arbitration Project, available at http://www.chicagobar.org/AM/NavigationMenu/Public/LegalProgramsPublic/ CBAMatrimonialFeeArbitrationProject/matrimonial.pdf.

(24.) The 2008 ARDC Annual Report reported that 12 cases were terminated in 2008 upon completion of conditions imposed by the Inquiry Board under Commission Rule 108. See 2008 ARDC Annual Rep at 10 (cited in note 13).

(25.) See NY Comp Codes R & Regs tit 22 [section] 1220.7.

(26.) Id.

(27.) Id.

(28.) See Vivian Berger, Mediation: An Alternative Means of Processing Attorney Disciplinary Complaints, 16 Prof Lawyer 4, 21 (2005).

(29.) See ABA Model Rules For Mediation of ClientLawyer Disputes, American Bar Association House of Delegates, 1998, at 3, available at http://www.abanet.org/cpr/clientpro/mr_mediation.pdf.

(30.) See 2008 ARDC Annual Rep at 14 (cited in note 13).

(31.) Id at 16, 20.

(32.) The reprimands given by the hearing board in five cases in 2007 involved failure to keep three clients reasonably informed about matters (05 CH 29) (consent), making a false statement in an affidavit based upon faulty recollection (07 CH 7) (consent), failure to act diligently in representing immigration clients in the seventh circuit (05 CH 79) (consent), neglect of a legal research matter and failure to return an unearned $2,000 fee (05 CH 79) (consent), and failure to obtain informed consent to a change in terms of retention from public defender to private attorney (06 CH 23). The 2007 dismissals by the hearing board occurred in Case Numbers 06 CH 81 (changed to reprimand by review board; reprimand approved by the supreme court), 03 CH 21, 04 CH 60, 04 CH 61, and 03 CH 21.

(33.) See 2008 ARDC Annual Rep at 15 (cited in note 13).

(34.) Id at 18.

(35.) The five cases dismissed in 2007 consumed six hearing days. Three of them had been pending before the hearing board for more than two years at the time the dismissal orders were entered.

Mary Patricia Benz is a court-certified mediator and has practiced trial and appellate law in Illinois for 30 years.

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Title Annotation:	Illinois
Author:	Benz, Mary Patricia
Publication:	Illinois Bar Journal
Date:	May 1, 2010
Words:	2450
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Topics:	Legal ethics Negotiation, mediation and arbitration Mediation Usage