Applebaum v. Rush University Medical Center ( 2008 )

Docket No. 105905.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
MICHAEL APPLEBAUM, Special Adm’r of the Estate of Joseph
Applebaum, Deceased, Appellant, v. RUSH UNIVERSITY
MEDICAL CENTER et al., Appellees.
Opinion filed November 20, 2008.
JUSTICE FREEMAN delivered the judgment of the court, with
opinion.
Justices Thomas, Kilbride, Garman, Karmeier, and Burke
concurred in the judgment and opinion.
Chief Justice Fitzgerald took no part in the decision.
OPINION
The circuit court of Cook County certified the following question
of law for interlocutory appeal, pursuant to Supreme Court Rule
308(a) (155 Ill. 2d R. 308(a)):
“Whether the nullity rule should be applied in a wrongful
death action where the plaintiff is an attorney who has passed
the bar and was on inactive status at the time of the filing of
the complaint, was the special administrator, sole benficiary
and son of the decedent and prior to the hearing on the motion
whose license was reinstated.”
The appellate court answered this question in the affirmative. 376
Ill. App. 3d 993. We granted leave to appeal (210 Ill. 2d R. 315). For
the reasons that follow, we answer the certified question in the
negative. Accordingly, we reverse the judgment of the appellate court
and remand this cause to the circuit court for further proceedings
consistent with this opinion.
BACKGROUND
This interlocutory appeal has its genesis in a medical malpractice
complaint filed on December 1, 2005, in the circuit court of Cook
County. Plaintiff, Michael Applebaum, filed suit as special
administrator of the estate of Joseph Applebaum, against Rush
University Medical Center and other defendants,1 seeking damages
for the estate pursuant to the Wrongful Death Act (740 ILCS 180/0.01
et seq. (West 2004)) and the Survival Act (755 ILCS 5/27–6 (West
2004)), stemming from defendants’ alleged misconduct in treating
decedent. Plaintiff is decedent’s only child and the sole beneficiary of
his estate, which had no creditors and was not opened to probate.
Plaintiff’s complaint and the damages it sought, however, were solely
in the name of the estate and not pled individually for plaintiff.
Plaintiff signed the complaint as “Attorney for Plaintiff.” The
record reveals that plaintiff is a physician who received an Illinois
license to practice law in 1988. The Attorney Registration and
Disciplinary Commission (ARDC) has no record of plaintiff ever
having been disciplined or being the subject of a public disciplinary
proceeding. Plaintiff remained on “active” status with the ARDC
until January 6, 2005, when, pursuant to our Rule 756(a)(5) (188 Ill.
1
The initial appellees in this case who filed a responsive brief to
plaintiff’s opening brief were Rush University Medical Center, individually
and d/b/a University Rheumatologists and Rush Medical College, Lawrence
Layfer, M.D., and Osama Ibrahim, M.D. Subsequently, this court has
allowed the motions of the following defendants to join this brief: Rush
North Shore Medical Center; Vadim Leyenson and Chest Medical
Consultants, S.C.; North Shore Radiology; Leonard Berlin, M.D.; Gary
Novetsky, M.D.; Mark Edelman, M.D.; Michael Racenstein, M.D.; Avrum
Epstein, M.D.; Michael Smith, M.D.; Jonathan Alexander, M.D.; Christian
Fisher, M.D.; Jose Velasco, M.D.; Alan Reich, M.D.
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2d R. 756(a)(5)), he voluntarily changed his registration to that of an
“inactive status attorney.” This change in status occurred nearly one
year prior to the filing of the medical malpractice complaint.
On April 4, 2006, plaintiff filed a first amended complaint in the
medical malpractice action, adding additional counts. Plaintiff,
however, signed this document as “Plaintiff Pro Se.” Defendants
thereafter filed, on May 31, 2006, a pleading styled “Motion to
Dismiss Based on the Plaintiff’s Unlicensed Practice of Law,”
resulting from their discovery that plaintiff–although an attorney–was
on inactive status at the time he filed the initial complaint. Defendants
maintained that “one not duly authorized to practice law may not
represent another in a court of law” and argued that, because plaintiff
was on inactive status with the ARDC, he was “not legally permitted
to bring this litigation in a representative capacity on behalf of the
estate of [decedent].” Defendants concluded, therefore, that “this
matter must be declared a nullity and dismissed with prejudice.”
The record reflects the parties’ agreement that, sometime
subsequent to the filing of defendants’ dismissal motion–yet prior to
the trial court’s hearing of this matter on August 17, 2006–plaintiff
returned to “active” status with the ARDC.
Upon conclusion of the August 17 hearing, the trial court denied
defendants’ motion to dismiss. The court agreed with defendants that
plaintiff’s inactive status precluded him from representing the estate
and that, generally, legal proceedings brought by a nonlawyer on
behalf of another may be voided under the nullity rule. The trial court,
however, disagreed with defendants that this case required application
of the nullity rule. Noting that the purpose of the nullity rule is to
protect the public against unskilled and unscrupulous persons
representing them in legal proceedings, the trial court found that the
instant medical malpractice action filed by plaintiff–who has a law
degree, who has been duly licensed in Illinois and never disciplined,
who had resumed active status with the ARDC prior to the dismissal
hearing, and who sought redress through this suit for alleged harm
suffered by his father–did not present any of the concerns intended to
be remedied by application of that rule. In addition, the court was
troubled by the fact that applying the nullity rule and dismissing the
action would foreclose any possibility of recourse for decedent’s
alleged injuries. Accordingly, the trial court refused to apply the
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nullity rule and denied defendants’ motion to dismiss. The court did
direct plaintiff, however, to file an amended complaint reflecting his
current status as an active attorney. Plaintiff complied by filing a
second amended complaint on August 28, 2006.
Defendants thereafter filed a “Motion for Rule 308 Finding,”
requesting that the trial court certify a question of law for immediate
interlocutory appeal pursuant to our Rule 308. The trial court agreed
with defendants that its prior order denying their dismissal motion
involved a question of law as to which there is a substantial ground
of difference of opinion, and that an immediate appeal may materially
advance the ultimate termination of the litigation. Accordingly, the
trial court certified its question for interlocutory appeal.
In applying the nullity rule and reversing the actions of the circuit
court, the appellate court held:
“Where a plaintiff proceeding pro se was formerly licensed to
practice law, but is voluntarily on inactive status pursuant to
Illinois Supreme Court Rule 756(a)(5) [citation] at the time of
the filing of a complaint under the Wrongful Death Act, he or
she is not authorized to practice law and the nullity rule
applies even though plaintiff returned to active status prior to
a hearing on a motion to dismiss the complaint as a nullity.”
376 Ill. App. 3d at 993.
In arriving at this conclusion, the appellate court relied principally
upon Fruin v. Northwestern Medical Faculty Foundation, Inc., 194
Ill. App. 3d 1061 (1990), which upheld the dismissal of a medical
malpractice complaint based upon the nullity rule, where that
complaint was signed and filed by an attorney located and licensed
only in Wisconsin. The appellate court held that Fruin was factually
analogous to the instant matter, as plaintiff “was not licensed” in
Illinois, yet, nevertheless, filed a complaint “in violation of the plain
letter of the law.” 376 Ill. App. 3d at 999. Although the court
acknowledged that “[t]here is no doubt that the nullity rule is harsh,”
it noted that “the law is clear that only a licensed attorney may
represent another party” (376 Ill. App. 3d at 999), and held that “there
are no unique circumstances present to justify a deviation from the
rule” (376 Ill. App. 3d at 1000).
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This court allowed plaintiff’s petition for leave to appeal. 210 Ill.
2d R. 315. We also allowed the Illinois Trial Lawyers Association
leave to file a brief amicus curiae. 210 Ill. 2d R. 345.
ANALYSIS
The certified question requires us to determine whether the
application of the nullity rule is appropriate under the facts presented
in this case. In Ford Motor Credit Co. v. Sperry, 214 Ill. 2d 371
(2005), we recently explained that the nullity–or voidness–rule
“is grounded in the fact that there are risks to individual
clients and to the integrity of the legal system inherent in
representation by an unlicensed person: The purpose of the
nullity ‘rule is *** to protect litigants against the mistakes of
the ignorant and the schemes of the unscrupulous and to
protect the court itself in the administration of its proceedings
from those lacking requisite skills.’ ” Sperry, 214 Ill. 2d at
389-90, quoting Janiczek v. Dover Management Co., 134 Ill.
App. 3d 543, 546 (1985).
Accordingly, where a person who is not licensed to practice law in
Illinois attempts to represent another party in legal proceedings, this
rule permits dismissal of the cause, thereby treating the particular
actions taken by that person as a nullity. Sperry, 214 Ill. 2d at 390.
Although the nullity rule is well established in our courts, because the
results of its application are harsh it should be invoked only where it
fulfills its purposes of protecting both the public and the integrity of
the court system from the actions of the unlicensed, and where no
other alternative remedy is possible. See Sperry, 214 Ill. 2d at 380,
390-91; see also, e.g., Pratt-Holdampf v. Trinity Medical Center, 338
Ill. App. 3d 1079, 1085 (2003) (complaint improperly dismissed
under the nullity rule where “risks to individual clients and to the
integrity of the legal system inherent in representation by a person
who has never qualified to practice law” not present); Ratcliffe v.
Apantaku, 318 Ill. App. 3d 621, 626 (2000) (voiding a wrongful-death
and survival action brought in a representative capacity by a pro se
plaintiff who was a layperson and not an attorney licensed to practice
law).
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This case presents the specific question of whether it is proper to
apply the nullity rule to void a complaint filed by a licensed attorney
who, at the time of filing, was on “inactive attorney status” with the
ARDC, and who is representing the estate of his deceased father, is
the estate’s special administrator, and is the sole beneficiary of the
decedent. In order to answer this question, we must first determine
the meaning of “inactive attorney status.” We must, therefore,
construe our Rule 756, which, at the time plaintiff filed the
challenged lawsuit,2 provided, in pertinent part:
“Rule 756. Registration and Fees
(a) Annual Registration Required. Except as hereinafter
provided, every attorney admitted to practice law in this State
shall register and pay an annual registration fee to the
[Attorney Registration and Disciplinary] Commission on or
before the first day of January. ***
***
(5) An attorney may advise the Administrator [of the
ARDC] in writing that he or she desires to assume
inactive status and, thereafter, register as an inactive
status attorney. The annual registration fee for an inactive
status attorney shall be $90.[3] Upon such registration, the
attorney shall be placed upon inactive status and shall no
longer be eligible to practice law or hold himself or
herself out as being authorized to practice law in this
2
This court has amended Rule 756 on several occasions subsequent to
December 1, 2005, the date plaintiff filed the medical malpractice action
at issue in this appeal. In this opinion, we set forth the version of the rule
applicable to plaintiff at the time of the questioned conduct, and which is
controlling. However, where appropriate, we also note the differences
between that version and the current version of the rule.
3
The current annual registration fee for an inactive status attorney is
$105. Official Reports Advance Sheet No. 20 (September 27, 2006), R.
756(a)(5), eff. September 14, 2006.
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State.[4] An attorney who is on the master roll as an
inactive status attorney may advise the Administrator in
writing that he or she desires to resume the practice of
law, and thereafter register as active upon payment of the
registration fee required under this rule.[5] If the attorney
returns from inactive status after having paid the inactive
status fee for the year, the attorney shall pay the difference
between the inactive status registration fee and the
registration fee required [under this rule]. ***
***
(b) The Master Roll. The Administrator shall prepare a
master roll of attorneys consisting of the names of attorneys
who have registered and have paid or are exempt from paying
the registration fee. *** An attorney who is not listed on the
master roll is not entitled to practice law or to hold himself
out as authorized to practice law in this State. An attorney
listed on the master roll as on inactive *** status shall not be
entitled to practice law or to hold himself or herself out as
authorized to practice law in Illinois.” 188 Ill. 2d Rs. 756
(a)(5), (b).
We construe our rules in the same manner as we construe statutes
(134 Ill. 2d R. 2; Vision Point of Sale, Inc. v. Haas, 226 Ill. 2d 334,
342 (2007)), and our review is de novo (Townsend v. Sears, Roebuck
& Co., 227 Ill. 2d 147, 153 (2007)).
4
This court has recently amended Rule 756 by adding a new subsection
(j), which provides that an attorney on inactive status may be authorized to
provide pro bono legal services upon satisfaction of a set of specific
conditions. Official Reports Advance Sheet No. 8 (April 9, 2008), Rs.
756(a)(5), (j), eff. July 1, 2008.
5
The current version of this rule provides that in order to resume active
status, an attorney must also submit verification that he or she has complied
with the Minimum Continuing Legal Education (MCLE) requirements as
set forth in Rule 791(e). In turn, Rule 791(e) provides that an attorney
returning to active status from inactive status has 24 months from the date
of resuming active status in which to complete the MCLE requirements.
210 Ill. 2d Rs. 756(a)(5), 791(e).
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In the instant matter, the parties dispute what, if any, effect
plaintiff’s change in registration status from “active” to
“inactive”–and his resultant “ineligibility” to practice law while
maintaining “inactive” status–had upon his credentials and previously
obtained license to practice law, and whether, under such
circumstances, the nullity rule applies to void his complaint. Plaintiff
contends that the appellate court erroneously answered the certified
question by holding that the nullity rule mandates the voiding of an
otherwise-valid complaint filed by a duly licensed Illinois attorney
listed on the master roll of attorneys who was temporarily ineligible
to practice law due to payment of the lesser inactive-status fee.
Plaintiff maintains that application of the harsh nullity rule to the
specific facts presented is unprecedented and unwarranted, and that
if he should suffer any adverse consequences as a result of his actions,
the reasonable alternative remedy is to submit this matter to the
ARDC and its disciplinary process. Defendants counter that the
appellate court’s answer to the certified question was correct–and that
plaintiff’s lawsuit should be dismissed as a nullity–because plaintiff’s
ineligibility to practice law due to his inactive status operates as the
equivalent of plaintiff being unlicensed to practice law in this state.
We disagree. The arguments advanced by defendants–and the holding
of the appellate court below–find no support in the overall scheme of
our rules, the plain language of Rule 756, or our prior precedent.
Therefore, we agree with the position taken by plaintiff.
It has long been settled that the inherent power to define and
regulate the practice of law in this state resides in this court. Sperry,
214 Ill. 2d at 382; People ex rel. Chicago Bar Ass’n v. Goodman, 366
Ill. 346, 349 (1937). As we recently explained in Sperry:
“To this end, our court has promulgated rules which set
forth detailed regulations for the study of law and which
govern the admission of applicants to our state bar. See 134
Ill. 2d Rs. 701 through 720. This court has also created a
comprehensive scheme to regulate attorneys and discipline
them for misconduct. As part of this regulatory scheme, we
have promulgated rules of professional conduct for state-
licensed attorneys (see 134 Ill. 2d Rs. 1.1 through 8.5), and
have constituted an Attorney Registration and Disciplinary
Commission (ARDC) (134 Ill. 2d R. 751), and created the
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office of an Administrator (134 Ill. 2d R. 752) to supervise
‘[t]he registration of, and disciplinary proceedings affecting,
members of the Illinois bar.’ 134 Ill. 2d R. 751(a). In addition,
this court has promulgated detailed rules which prescribe the
appropriate discipline when the Rules of Professional
Conduct are violated. See 134 Ill. 2d Rs. 751 through 775;
137 Ill. 2d Rs. 776, 777; 188 Ill. 2d R. 778; 155 Ill. 2d R. 780.
This court has also created a procedural framework within
which the ARDC performs its duties to investigate complaints
of misconduct against licensed attorneys, hold hearings on
those complaints, and provide review of the findings with
respect to those complaints. 166 Ill. 2d R. 753.” Sperry, 214
Ill. 2d at 382-83.
We further explained in Sperry that our rules work in tandem to
ensure that “only those individuals who are fit and qualified to
practice law will be licensed in this state, that those individuals will
practice law ethically and with competence, and that any infractions
of the Rules of Professional Conduct will be investigated and
discipline will be imposed if appropriate.” Sperry, 214 Ill. 2d at 383.
Rule 756 operates as part of this overall scheme by providing the
mechanism for facilitating the annual registration and payment of fees
by “every attorney admitted to practice law in this State.” 188 Ill. 2d
R. 756(a), see also Ill. Ann. Stat., ch. 110A, par. 756, Historical &
Practice Notes, at 628 (Smith-Hurd 1985) (Rule 756 “provides for the
registration of all attorneys in the state and for the imposition on the
members of the Illinois bar of the fees required to maintain the
disciplinary system established by the rules”). Thus, under the plain
language of this rule, it necessarily follows that those persons who are
subject to its provisions have already satisfied all fitness and
competency requirements for admission to the Illinois bar. Therefore,
because every individual governed by Rule 756 has already been
deemed qualified to practice law by virtue of their prior Illinois
licensure, it is apparent that this specific rule is not primarily intended
to protect the public from harm caused by unlicensed or incompetent
individuals. Rather, it is clear that the central purpose of this
particular rule is to establish an administrative framework for the
annual registration of attorneys licensed in Illinois and to set forth a
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graduated annual fee collection schedule, based upon the attorney’s
ARDC registration status.
An attorney wishing to change his or her ARDC registration
status from “active” to that of “an inactive status attorney” must
follow the procedures set forth in subsection (a)(5) of Rule 756. Even
though “inactive,” the attorney must still pay an annual registration
fee, although it is reduced to reflect the change in status. In addition,
the name of the attorney remains on the master roll, although it is
accompanied by the designation that the person is on “inactive”
status. The rule provides that for the period the attorney remains on
inactive status, he or she “shall no longer be eligible to practice law
or hold himself or herself out as being authorized to practice law in
this state.” Rule 756(a)(5) further provides that an “inactive”
attorney may return to “active” status at any time. Under the version
of the rule applicable in this case, in order to do so, the attorney
simply needed to “advise the Administrator in writing that he or she
desires to resume the practice of law, and thereafter register as active
upon payment of the registration fee required under this rule.”6 The
amount of the required fee depends upon whether the attorney had
already paid the “inactive” status registration fee for the year, and the
difference between that amount and the applicable “active”
registration fee. Significantly, an attorney returns to active status
instantly upon paying the fee difference specified in the rule.
Both the appellate court, in its opinion below, and defendants, in
their arguments to this court, take the position that an attorney who
is no longer “eligible” to practice law while on inactive status
pursuant to Rule 756(a)(5) becomes the equivalent of a person who
is “unlicensed” to practice law. The plain language of Rule 756,
however, clearly refutes such a claim. Although a change in ARDC
registration status from “active” to “inactive” is accompanied by a
restriction in the attorney’s practice to the extent that he or she “shall
no longer be eligible to practice law” while on inactive status, it is a
fundamental error to equate such a status change with stripping the
6
As noted, the current version of this rule now also requires subsequent
verification that the applicable MCLE requirements have been met within
24 months after the attorney returns to active status. 210 Ill. 2d Rs.
756(a)(5), 791(e).
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attorney of his or her license to practice law. A change in an
individual’s ARDC registration status has no relation to, and does
not call into question, that person’s skill, fitness or competency to
practice law, which is assured through his or her initially meeting the
requirements to obtain–and thereafter to retain–a valid license to
practice law.
The fundamental difference between an individual who has
satisfied the licensing requirement–but runs afoul of a technical or
administrative rule–and a person who has no license to practice law
was highlighted in People v. Brigham, 151 Ill. 2d 58 (1992). In that
case, the attorney representing Brigham had been removed from the
master roll of attorneys pursuant to Rule 756(d), due to his failure to
pay his annual ARDC registration fee. In his postconviction petition,
Brigham contended that his sixth amendment right to counsel had
been violated because his attorney had been engaged in the
unauthorized practice of law as a result of his removal from the
master roll, which thereby invalidated the attorney’s status as
“counsel.” The State countered that the failure of Brigham’s attorney
“to satisfy technical licensing requirements” should not be construed
so as to void an otherwise valid judgment, because “[s]uch a
shortcoming does not render [counsel’s] advice ill or his
representation ineffective.” Brigham, 151 Ill. 2d at 62-63.
In agreeing with the State’s position on this issue of first
impression in Illinois, we held that there is “an important distinction
between (1) an unlicensed person (e.g., an imposter or a disbarred
attorney), and (2) an attorney admitted to practice but under
suspension for nonpayment of State bar dues.” Brigham, 151 Ill. 2d
at 67. We found to be persuasive decisions from other jurisdictions
which held that representation of a criminal defendant by an
unlicensed individual constituted denial of the sixth amendment right
to counsel, whereas representation by a licensed member of the
bar–even if his or her practice was restricted as a consequence of a
failure to satisfy technical or administrative requirements–did not.
Brigham, 151 Ill. 2d at 64-67 (quoting Reese v. Peters, 926 F.2d 668,
669-70 (7th Cir. 1991) (“Lawyers who do not pay their dues violate
a legal norm, but not one established for the protection of clients”),
Johnson v. State, 225 Kan. 458, 465, 590 P.2d 1082, 1087 (1979)
(“Although the payment of the registration fee is a prerequisite to the
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ethical practice of law in this state, the payment itself has nothing to
do with the legal ability of the attorney. Just as the payment of the fee
does not guarantee that an attorney will practice law in a competent
manner, the nonpayment of the fee does not necessarily imply that the
nonpaying attorney will perform in an incompetent manner”), and
Hill v. State, 393 S.W.2d 901, 904 (Tex. Crim. App. 1965) (Although
a delinquent attorney is “prohibited” from practicing law, “[h]e only
has to pay his dues *** to resume his status as a ‘practicing lawyer,’ ”
and he has not thereby become unlicensed (emphasis omitted)).
In rejecting Brigham’s claim, we made it clear that a technical
defect in the registration status of a duly licensed attorney was
distinguishable from a situation where “the representative has either
failed to obtain a law license, has obtained a license through
fraudulent means, or has had his license revoked for reasons to do
with his competency as an attorney.” Brigham, 151 Ill. 2d at 67. We
concluded that
“[defense counsel’s] admission to the bar allows us to assume
that he has the training, knowledge, and ability to represent a
client who has chosen him, and that he has attained the ability
to render effective assistance to defendant at trial,
notwithstanding his suspension for failure to pay his
registration dues. To find a defendant’s sixth amendment right
to counsel to have been violated, there must be additional
factors above and beyond a mere suspension for nonpayment
of bar dues.” Brigham, 151 Ill. 2d at 70-71.
We cited Brigham as instructive in our subsequent decision in
Sperry, where we held that the nullity rule had been erroneously
applied to void a judgment awarding attorneys fees to a law firm that
was not registered as a professional services corporation pursuant to
our Rule 721(c). Sperry, 214 Ill. 2d at 391. As in Brigham, we
emphasized in Sperry that “there is a fundamental difference between
an unlicensed individual representing a party in legal proceedings or
performing activities traditionally considered to be the ‘practice of
law’ and duly licensed attorneys who happen to belong to a law firm
that has not filed its registration and paid its fees pursuant to Rule
721(c).” Sperry, 214 Ill. 2d at 387. We held that the “material inquiry
in assessing whether there has been an unauthorized practice of law
is whether the individual who acts on behalf of a client is duly
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licensed by this court” (Sperry, 214 Ill. 2d at 387), and that “[a] duly
licensed attorney who belongs to a firm that lacks Rule 721(c)
registration does not, by virtue of the unregistered nature of the firm,
engage in the unauthorized practice of law” (Sperry, 214 Ill. 2d at
391). Accordingly, as no harm to the public or to the integrity of the
court system was presented by the firm’s lack of registration, we
concluded that the nullity rule had been erroneously applied. Sperry,
214 Ill. 2d at 391.
In light of the framework of our rules, the plain language of Rule
756(a)(5), and our precedent as set forth in Brigham and Sperry, we
reject the argument advanced by defendants, based upon the holding
of the appellate court below, that plaintiff’s inactive status is the
equivalent of plaintiff being unlicensed, and that his filing of the
complaint in this action constitutes the unlicensed practice of law
calling for application of the harsh sanction of the nullity rule to void
his actions. Indeed, we note that this case has proceeded from the
outset upon the faulty premise that plaintiff–because he was
registered as an inactive status attorney–was therefore unlicensed to
practice law in this state. Defendants’ dismissal motion in the trial
court was stylized as a “Motion to Dismiss Based on the Plaintiff’s
Unlicensed Practice of Law.” (Emphasis added.) Although the trial
court rejected defendants’ argument and denied their dismissal
motion, it thereafter certified the question before us, which contains
the misstatement that plaintiff’s “license was reinstated” (emphasis
added) when he resumed active registration status upon paying the fee
differential. As we have explained above, a simple change in ARDC
registration status does not affect an attorney’s license. The term
“reinstated” is used in our rules in connection with the completely
different situation where an attorney seeks to return to practice after
having been disbarred or suspended. See 210 Ill. 2d R. 767.
The appellate court perpetuated this error by incorrectly stating,
in its answer to the certified question, that plaintiff was “formerly
licensed” to practice law, referring to the time he was registered as
being on active status. In explaining its reasoning in support of its
answer to the certified question, the appellate court stated that it had
found the decision in Fruin to be factually analogous, because, like
the Wisconsin attorney in that case who was unlicensed in Illinois,
plaintiff also “was not licensed” in Illinois due to being on inactive
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status. 376 Ill. App. 3d at 999. In addition, the appellate court found
Sperry to be distinguishable–and therefore not controlling–because
in this case there is “no licensed attorney, only the unauthorized
practice of law.” 376 Ill. App. 3d at 399. The appellate court
concluded that plaintiff had filed a complaint “in violation of the
plain letter of the law,” which “is clear that only a licensed attorney
may represent another party.” 376 Ill. App. 3d at 999. Finally, just as
the trial court improperly used the term “reinstated” to refer to
plaintiff’s change in registration status from inactive to active, the
appellate court also erroneously observed that plaintiff “petitioned for
reinstatement” and “was reinstated” to active status upon payment of
the appropriate fee.
In their arguments to this court, defendants continue to
erroneously use these terms and concepts. For example, in their brief,
they maintain that once plaintiff registered with the ARDC as an
inactive-status attorney, he was “therefore ineligible to practice law;
thus he did not seek, much less obtain, the requisite license to actually
practice,” and erroneously assert that “[w]hatever plaintiff had by
virtue of registering as ‘inactive,’ it most certainly was not a license
allowing him to practice law.” In addition, at oral argument, when
squarely asked if plaintiff’s registration as an inactive-status attorney
is equivalent to plaintiff being unlicensed, counsel for defendants
replied “yes.”
We emphasize that an individual who has (i) graduated from law
school; (ii) satisfied this court’s character and fitness requirements;
(iii) passed the bar examination; and (iv) obtained a license to
practice law in this state does not become “unlicensed” by simply
choosing to change his or her ARDC registration status from active
to inactive. Although Rule 756(a)(5) provides that an attorney on
inactive status “shall no longer be eligible to practice law or hold
himself or herself out as being authorized to practice law,” this
limitation on practice for the duration one chooses to remain on
inactive status does not mean that this person is thereby stripped of
his or her law license. Even though plaintiff was on inactive
registration status with the ARDC when he filed the medical
malpractice complaint at issue in this appeal in December 2005, he
remained–at all times–a licensed and registered member of the
Illinois bar throughout the duration of this case. As noted, the lower
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courts in this case employed many terms imprecisely in this action.
We caution our courts that such terms must always be used with
careful precision.
As discussed, in light of the specific facts in this case, we hold
that the purposes served by applying the nullity rule–the protection of
the public and the integrity of the court system from the harm
presented by representation by unlicensed individuals–are not present
here. Accordingly, the appellate court erred in concluding that the
nullity rule should be imposed in this case.
We do note, however, that although plaintiff at all times remained
licensed, Rule 756(a)(5) provides that he was no longer “eligible” to
practice law on the date he filed the medical malpractice complaint
by virtue of the fact that he was on inactive status. It is well settled
that our rules are not mere suggestions; rather “ ‘[t]hey have the force
of law, and the presumption must be that they will be obeyed and
enforced as written.’ ” People v. Houston, 226 Ill. 2d 135, 152 (2007),
quoting Bright v. Dicke, 166 Ill. 2d 204, 210 (1995). Attorneys are not
free to ignore our rules, and, if they are found to have violated these
precepts, they will be subject to appropriate discipline.
Here, it is undisputed that plaintiff represented no other clients
while on inactive status apart from his father’s estate and that plaintiff
was the real party in interest, given that he was decedent’s sole heir
and next-of-kin, and that the estate had no creditors. In other words,
plaintiff at no time offered legal services to the public or engaged in
the practice of law on behalf of any real party in interest other than
himself. Thus, although plaintiff did not comply with the technical
provisions of the rule, it is less certain whether he violated its spirit
in light of our recognition in the past of exceptions to the rule and our
recent amendment to the rule. The current version of Rule 756 now
authorizes attorneys on inactive status to provide pro bono legal
services to persons of limited means or to charitable, civic and similar
organizations, under the auspices of a sponsoring entity. Official
Reports Advance Sheet No. 8 (April 9, 2008), Rs. 756(a)(5), (j), eff.
July 1, 2008. This amendment allows attorneys on inactive status to
represent members of the general public under specified
circumstances, permitting a broader spectrum of practice for inactive
attorneys than what plaintiff performed here, which was limited to his
own family situation and for his own benefit. We also note that
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plaintiff cured this defect prior to the hearing on defendants’
dismissal motion by simply paying the difference between the
registration fees assessed to inactive- and active-status lawyers,
whereupon he was immediately and automatically returned to active
status without having to reestablish his fitness or qualifications to
practice law.
Although plaintiff failed to comply with our rule regarding annual
registration and the payment of fees, this specific infraction, however,
does not warrant the imposition of the harsh nullity rule. As
explained, dismissal of this cause would not serve to further the
purposes of the nullity rule, the specific issue presented in this appeal.
CONCLUSION
For the foregoing reasons, we answer the certified question in the
negative. Accordingly, we reverse the judgment of the appellate court.
We remand this cause to the circuit court for further proceedings
consistent with this opinion.
Reversed and remanded.
CHIEF JUSTICE FITZGERALD took no part in the consideration
or decision of this case.
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