If I take over a client's matter from a lawyer who stepped away due to illness, must I tell the client when that lawyer returns to practice?

Plain-English summary

Attorney A, temporarily physically incapacitated, transferred specific client matters to Attorney B without any referral-fee arrangement and without retaining responsibility for the work. When A recovered and resumed practice on a restricted basis, B knew of A's return but did not tell the clients, who continued to retain B. The question was whether B owed a legal duty, to A or to the clients, to inform the clients of A's resumption of practice.

The opinion found no rule, Supreme Court case, or prior advisory opinion directly on point, and reasoned from the rules on communication and withdrawal. It treated A's transfer as a proper withdrawal under Rule 1.16, required because A's physical condition made it unreasonably difficult to carry out the work (Rule 1.16(a)(3)), with the steps to avoid prejudice under Rule 1.16(d). Because A neither arranged referral fees nor retained responsibility, the opinion characterized the arrangement as a substitution of counsel rather than a fee-sharing referral under Rule 1.5(f), (g), and noted that A's authority terminated as to the transferred matters.

The opinion concluded that, under Rule 1.4, a lawyer must keep a client reasonably informed about the status of the matter and answer reasonable requests for information, but that the referring lawyer's health and return to practice is not information needed to keep the client reasonably informed about the case, so long as the referring lawyer's participation does not affect the representation and the arrangement does not contemplate that lawyer resuming the matter. It added that, under Rule 7.1 and Rule 8.4(a)(4), if the client specifically asks about the prior lawyer's competence or practice, the successor lawyer must provide that information, and it observed that Rule 7.3(a)(1) would allow the returning lawyer to contact former clients to advise them of his return, subject to Rule 7.3(b).

Currency note

This opinion was issued in 1997, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in January 2010 as generally consistent with the 2010 Rules (referring to Rules 1.2(e), 1.4, 1.5, 1.16, 7.1, 7.3, and 8.4), while noting the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Must the successor lawyer volunteer that the referring lawyer has returned to practice?

A: No. The opinion concluded that the referring lawyer's recovery and return is not information the successor lawyer must give to keep the client reasonably informed under Rule 1.4, so long as it does not affect the representation.

Q: What if the client asks directly about the prior lawyer?

A: The opinion concluded that if the client specifically asks about the competence and practice of the prior referring lawyer, the successor lawyer is obligated to provide that information, consistent with Rules 7.1 and 8.4.

Q: Was the original transfer of the clients proper?

A: Yes. The opinion concluded it was appropriate and necessary for the incapacitated lawyer to withdraw under Rule 1.16 and transfer the matters, with client consent, to avoid prejudicing the clients.

Q: Could the returning lawyer contact the former clients?

A: The opinion observed that Rule 7.3(a)(1) would appear to allow the returning lawyer to solicit or advise former clients of his return to practice, subject to the limits of Rule 7.3(b).

Background and rules framework

The opinion interpreted Rule 1.4 (communication; Model Rule 1.4) and Rule 1.16 (declining or terminating representation; Model Rule 1.16) as the most pertinent authority, together with Rule 1.1(c) (delegation outside the firm), Rule 1.5 (fees), Rule 7.1 (false or misleading communications), Rule 7.3 (solicitation), and Rule 8.4 (misconduct), and it applied Illinois case law on when an attorney's authority terminates.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.4 (communication) / Illinois Rule 1.4
• Model Rule 1.16 (declining or terminating representation) / Illinois Rule 1.16
• Illinois Rule 1.1(c) (delegation outside the firm); Illinois Rule 1.5 (fees)
• Model Rule 7.1 (false or misleading communications) / Illinois Rule 7.1
• Model Rule 7.3 (solicitation of clients) / Illinois Rule 7.3
• Model Rule 8.4 (misconduct) / Illinois Rule 8.4

Cases:

• Herbster v. North American Co. for Life & Health Insurance, 150 Ill.App.3d 21, 501 N.E.2d 343 (2d Dist. 1986), termination of an attorney's authority
• SWS Financial Fund A v. Salomon Bros. Inc., 790 F.Supp. 1392 (N.D. Ill. 1992), continuation of the attorney-client relationship
• Rhoades v. Norfolk & Western Ry. Co., 78 Ill.2d 217, 399 N.E.2d 969 (Ill. 1979)
• Savich v. Savich, 12 Ill.2d 454, 147 N.E.2d 85 (Ill. 1957)

See also

• ISBA Ethics Op. 20-07: Lawyer's Obligations When a Client Becomes Impaired
• ISBA Ethics Op. 07-02: Continued Practice After Sale of a Law Practice
• ABA Formal Op. 03-429: Mentally Impaired Lawyer in the Firm

Source

• Landing page: https://www.isba.org/ethics/opinions/9611