A call was made recently to the Ethics Inquiry Program by a person who described himself as a local lawyer. He sounded anxious and upset. Although he provided few salient details, the hypothetical that he presented involved an attorney who harbored concerns that a client he represented could have had some involvement in the terrorist activities of Sept. 11.
The questions posed involved the extent to which the attorney had the authority, or even an obligation, to inform authorities what he knew about the client's activities.
Although the caller was directed to certain rules and case law, we at the ARDC have some lingering concerns that the lawyer needed answers that were more specific than what we could provide given the context of a hypothetical question.
Applying lawyer confidentiality rules and the exceptions to those rules is extremely fact-specific, both in terms of deciding what information is protected as a confidence or secret under Rule 1.6, and in deciding whether an exception applies.
Rule 1.6 generally prohibits disclosure of communications protected by the attorney-client privilege (a confidence), as well as information learned in the professional relationship, revelation of which would be embarrassing or detrimental to the client (a secret).
Notwithstanding this obligation, lawyers are duty-bound to reveal information necessary to prevent a client from committing an act that would result in death or serious bodily harm.
Further exceptions to the confidentiality guidelines include the permissive disclosure of a client's intent to commit a crime as authorized under Rule 1.6(c), as well as the common law crime-fraud exception.
Only by asking many careful, specific questions about what the lawyer learned from or about a client, determining precisely how the lawyer came to learn such information, and discovering when and in what context the information was revealed, could anyone thoroughly and accurately analyze what information must be kept confidential and what must or may be disclosed.
We strongly encourage any lawyer struggling with such an onerous dilemma to retain a lawyer and obtain specific advice about what can and should be done.
The attorney-client privilege between the retained lawyer and the lawyer-client protects communications made in pursuit of that advice and allows the lawyer-client to discuss the issues with enough specificity to arrive at a fair answer. Just as importantly, the retained lawyer can help the lawyer-client explore the legal and moral consequences of opting for disclosure.
The important issues raised by the caller, issues involving substantive criminal law, attorney-client privilege, the crime-fraud exception, and, lastly, moral imperatives and concerns, can only be addressed by someone who can fulfill the role described by Rule 2.1 of the Illinois Rules of Professional Conduct:
"In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations, such as moral, economic, social and political factors that may be relevant to the client's situation.
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James Grogan is chief counsel for the Attorney Registration and Disciplinary Commission. Illinois lawyers who wish to contact the Ethics Inquiry Program may call (800) 826-8625 toll-free or (312) 565-2600.
New lawyers who have passed the bar examination and review by the Character and Fitness Committee will be admitted to the Illinois bar during ceremonies conducted Thursday, Nov. 8, by the Illinois Supreme Court.
Confirmed sites are: 1st District, 10:30 a.m. at Arie Crown Theater, McCormick Place, Chicago; 2nd District, 10 a.m. at Hemmens Memorial Building, Elgin; 5th District, Gateway Convention Center, Collinsville.
Real Estate Law Updates slated
ISBA Real Estate Law Updates will be presented from 9 a.m. to 4:30 p.m. Friday, Nov. 2, in the Palmer House Hilton, Chicago, and Friday, Nov. 9, in the Radisson Hotel, Bloomington.
Program coordinators for the Law Ed Series seminars are Myles L. Jacobs of Brumund & Jacobs, Joliet, chair of the ISBA Real Estate Law Section Council, and newsletter co-editor Samuel H. Levine of Arnstein & Lehr, Chicago.
Myles Jacobs will be moderator for the Chicago program, and section council member Marylou Lowder Kent of Land Title Services of Illinois, Springfield, for the Bloomington program. Each will provide welcoming remarks at 9 a.m. The schedules follow.
9:10 a.m. Legislative Update, with Marylou Lowder Kent.
9:30 a.m. Case Law Update, with section council past chair Steven B. Bashaw of Oak Brook and associate newsletter editor Joseph R. Fortunato of Fortunato, Farrell & Davenport, Westmont.
10:35 a.m. Bankruptcy and Real Estate Law, with section council member Gregory J. Moody of Codilis & Associates, Darien, and Barry A. Chatz and Miriam A. Stein of Arnstein & Lehr, Chicago
11:20 a.m. Construction and Mechanics Lien Law Update, with Samuel Levine.
11:50 a.m. A Primer on the GrahamLeachBilley Act, with section council member Robert J. Duffin of First American Title Insurance, Warrenville.
12:05 p.m. Panel discussion, followed by luncheon period.
1:30 p.m. How to Keep Your Malpractice Insurance Carrier Happy While Doing a Real Estate Closing, with Myles Jacobs, Andrew C. Dystrup of Davis, Kaplan, Dystrup & Hoster, Joliet, and Aurora Abella Austriaco of Attorneys' Title Guaranty Fund, Chicago.
2:15 p.m. Estate Planning and Elder Law Issues, with Patricia Tymony Gruber of Plainfield.
3:20 p.m. The UCC and Real Estate, with Mary E. Faupel of Eureka, past chair of the Corporation, Securities and Business Law Section Council, and Real Estate Law Section Council Ted M. Niemann of Schmiedeskamp, Robertson, Neu & Mitche, Quincy.
3:50 p.m. Recent Developments in Eminent Domain Law, with section council members Brian P. Liston of Figliulo & Silverman, Chicago, and assistant Oak Park village attorney Jack H. Tibbetts.
Arab American lawyers ask bar to support plan for protection, education
By Stephen Anderson
Condemning both the terrorists and some U.S. citizens who sought vengeance against others because of their ethnicity or religion, the Arab American Bar Association has asked the organized bar to adopt a seven-point resolution calling for hatred to be defused.
William J. Haddad, executive director of the AABA, and President Rouhy J. Shalabi stated their case Sept. 26 during a Chicago press conference at which ISBA President Tim Eaton reiterated his position opposing contemptible acts against freedom (ISBA Bar News, October 1, page 4).
Other speakers included Cook County State's Attorney Richard A. Devine, Chicago Bar Association President Terrence M. Burns, and Judge Aaron Jaffe, acting president of the Jewish Judges Association.
Haddad recited a long list of recent hate crime incidents in which American people who appear to be of Arabic ancestry or Muslim faith have been attacked since the Sept. 11 destruction in New York City and Washington, D.C.
"We are hurting just as much as any other American," Shalabi added. "For us to be divided and fall prey to terrorist acts makes us no different from the terrorists."
The AABA resolution similarly concludes that "Those who would harm others because of their ethnicity or religion become accomplices to the terrorists," whose goal is "to destroy our freedom."
The resolution, which requests that other professional bar groups join the Arab American Bar in adopting, contains these provisions.
1. The threat of widespread hate crimes and reprisals against blameless Americans of Arabic ancestry and Muslims, and those who resemble them, constitutes a danger to the liberties of all Americans.
2. In addition to law enforcement's response to hate crimes, government should: A. Develop and coordinate preventive measures to protect the rights of Arab-American and Muslim citizens, and B. Develop and coordinate pre-constructed strategies to protect the lives and property of Arab-American and Muslim citizens in the event of an escalation of hate crimes against them.
3. Society and government, through the media and through community service projects, should endeavor to educate the public to defuse the hatred.
4. It is recommended that government not act in haste to enact special legislation that may negatively impact upon the civil liberties of all Americans.
5. It is recommended that Americans continue to speak out against this backlash of hate crimes, and that the media report it.
6. It is recommended that the government of the United States bring the terrorists, and those who aided and abetted the terrorists, to justice and proceed to use all reasonable and necessary measures to protect the people of the U.S.A.
7. It is recommended that other Arab-American and Muslim organizations present this report to local government to document the danger and to begin a dialogue to defuse the danger.
To obtain more information or offer support for the resolution, call William Haddad at (312) 946-0110.
The Illinois Death Penalty Education Project and Northwest Action Council will conduct a free public forum from 7 to 8:30 p.m. Tuesday, Oct. 23, at Taft High School in Chicago. Call (773) 774-1779 for more information.
The pros and cons of Gov. George Ryan's moratorium on the death penalty in Illinois and other issues of capital punishment will be discussed by nationally known speakers. Audience members may ask questions.
Chicago attorney Sheila M. Murphy, a member of the ISBA Board of Governors, is president of the Death Penalty Education Project. Mary M. Staniec, an advisory board member, is president of the Northwest Action Council.
"Sentencing Enhancement Issues in the Wake of Apprendi," an ISBA Law Ed Series seminar, will be presented from 9 a.m. to 12:30 p.m. Monday, Nov. 12, in the Radisson Hotel, Bloomington.
Sponsored by the ISBA Committee on Corrections and Sentencing, the seminar is coordinated by committee chair Joan C. Scott of Ewing & Scott, Lewistown. She also is the program moderator. The schedule follows.
9 a.m. Case Update of Apprendi Decisions and the Impact of Apprendi on Trial Issues, with Appellate Justice Patrick J. Quinn of Chicago.
9:45 a.m. Prosecutor's Perspective on the Impact of Apprendi on Trial Issues, with assistant Cook County state's attorney Renee G. Goldfarb.
10:40 a.m. Defense Perspective on the Impact as well as Issues Raused in Port-conviction Petitions and Pleadings, with David Bergschneider, legal director of the Office of State Appellate Defender, Springfield.
11:15 a.m. Legislative Update, with Donald L. Hays, senior staff counsel for the State's Attorneys Appellate Prosecutor, Springfield.
12 noon Roundtable discussion.
Russian pianist doubles as lemon law attorney
By Jeff Cappel
Dmitry Feofanov's pathway to the legal profession in Illinois from his birthplace in Russia was unusual. A skilled concert pianist, he also conducts a niche practice in lemon law.
Born in Moscow in 1957, he attended the Teacher's College of Moscow Conservatory with a talent for the piano that came from parents who were professional musicians.
Feofanov came to the United States in 1978 and attended Northeast Missouri State University and the University of Illinois. Soon, he became a music teacher at the University of Kentucky.
Learning to teach music was difficult for him, but he found that one doesn't need natural talent to learn and succeed. "If you can get someone early enough, like by age four and with perseverance, a person who isn't clicking musically might in time," he said.
"The student may even surpass those who clicked right away," he continued. "It wasn't necessarily because of something I did as a teacher, other than just wait. I am very optimistic about people's abilities."
During five concerts in 1990, Feofanov played the complete Prokofiev piano solos. "Nobody had ever done that before," he said. "It was kind of like winning a million dollars, and I thought that was as high as I could go. Even if I wanted to surpass it, I wouldn't be able to."
He had already decided to go to law school and embark on a new career. "I was tired of being poor," he explained. His final concert was in June 1990, and he started his first legal writing class in August at the Chicago-Kent College of Law.
"So it was a clean break," he said. "I thought I would never touch a piano again, but the opportunities that I wish I had received started to come in."
Now a partner in the Naperville firm of Brooks, Adams & Tarulis, Feofanov graduated in 1994 from the Chicago-Kent with high honors. He clerked for the Iowa Supreme Court and the Illinois Appellate Court.
Feofanov's practice is concentrated in automobile litigation and fraud, or lemon law. He said that this type of practice is rare. He finds it an intricate area that blends many different areas of law, including fair crediting reporting and common law fraud.
Feofanov found lemon law by happenstance when a woman walked into his office with a car problem that required litigation. Later, a man came in with a similar problem. He enjoyed the two cases, and he decided to make lemon law a full-time venture.
Although he doesn't attend many concerts, Feofanov has some future concert dates of his own. He will conduct an orchestra in Tucson, Ariz., next summer and participate in a recording session in Austria in 2003.
Time constraints require that he prepare for those sessions as they approach and then move on with his law practice. "I spend all my time in the office," he said.
In 1989, Feofanov and Allan Ho compiled the mammoth 764-page "Biographical Dictionary of Russian/ Soviet Composers" over a seven-year period. He did it because there were no English dictionaries for Russian composers.
Feofanov didn't return to Russia to research the book, because "he didn't part on good terms." He also wrote "Shostakovich Reconsidered," a book about the Russian composer who died in 1976, although he doesn't particularly like the music.