Changes to the IRPC directly affect Illinois health lawyers.
Illinois health lawyers should be aware of important new changes to the Illinois Rules of Professional Conduct (IRPC), including those that require heightened responsibilities for a lawyer upon learning of wrongful corporate conduct. These new rules were announced by the Illinois Supreme Court on July 1, 2009, and are effective January 1, 2010.
The new rules represent the first complete revision of the IRPC since 1990. They are based generally on Model Rules adopted by the American Bar Association in 2002/2003 and, together with Official Comments, cover over 120 pages in length. Of the many rules with significant changes from the current IRPC are three that relate directly to compliance challenges which many Illinois health lawyers may be called upon to address, given the heavily regulated nature of the health care industry:
Rule 1.2(d) – "Counseling client about legal consequences of proposed conduct without assisting criminal or fraudulent conduct": The new IRPC changes include a new comment [10] to this section referencing a lawyer's discretion to make disclosures to prevent or rectify client fraud.
Rule 1.6 – "Duty of Confidentiality": The new IRPC provisions change the basic rules of client confidentiality in two major respects, including one which broadens the circumstances in which a lawyer is permitted to disclose the client's intention to commit a crime.
Rule 1.13 – "Organization as Client": Of particular interest are three changes to the specific rules which govern the lawyer's obligations to communicate internally within the organization―as well as outside―when the lawyer has knowledge of corporate misconduct, including but not limited to crime or fraud.
These three areas of change to the IRPC are consistent in most respects with changes adopted to the ethical rules in many other states. They reflect a policy perspective that effective corporate governance and legal compliance are enhanced by increasing the flow of information on legal risks within the organization.
The nature of the changes to Rules 1.2, 1.6 and 1.13 in particular are of such significance to organizational compliance activities that they should be shared with the compliance and audit committees, as well as the full board.
The McDermott Difference
McDermott partner Steven Pflaum is the current chair of the Illinois Supreme Court's Committee on Professional Responsibility and played a leading role during the seven-year process leading up to the court's adoption of the IRPC revisions.
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