assembly!meeting! december!12,!2015! informationalreports ......to the client or third person any...

Assembly Meeting December 12, 2015

Informational Reports

LAP

Professional Conduct Opinions ISBA Election Notice

LAWYERS’ ASSISTANCE PROGRAM

CONNECTING WITH LAW STUDENTS

In 2015, LAP along with Justice Anne Burke, presented Recognizing the Pressures of Law School: Identifying Students At Risk For Depression & What You Can Do To Help to administrators, staff, and

students of all 9 Illinois law schools. LAP’s increased outreach through presentations and tabling has yielded the creation of 3 LAP Law Student Groups. The Groups are committed to making it easier for students to access mental health services and to reducing the stigma attached to seeking help.

LAP WRITING COMMITTEE

The LAP Writing Committee increased the number of LAP publications three-fold in its inaugural year. LAP was published in 5 different bar association journals, significantly increasing the number of attorneys who hear about LAP.

CONTINUING LEGAL EDUCATION In the past year, LAP has continued its commitment to education by providing MCLE training at over 36 venues

in addition to its online MCLEs.

ASSESSMENTS · REFERALS · COUNSELING · INTERVENTION

· PEER SUPPORT · 12 STEP · MCLE · CASE MANAGEMENT

OUR MISSION

PROTECT – to protect client from impaired lawyers and judges.

HELP – to help lawyers, judges and law students get assistance for alcohol dependency, drug addiction and mental health problems.

EDUCTATE – to educate the legal community about addiction and mental health

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Psychological

Career Issues

Chemical Dependency

Chemical Abuse

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Compulsivity-‐Behaviroral

EaEng Disorder

Geriatric

Medical Issues

Issues (%)

ISBA Professional Conduct Advisory Opinion

________________________________ Opinion No. 15-03 September 2015 Subject: Client Funds and Property Digest: A lawyer who leaves a practice may leave the other members of his firm with unclaimed wills after he leaves. If, after a diligent search, the other lawyers cannot locate the individuals to whom those wills belong, the lawyers should file those wills with the Secretary of State Deposit of Wills. References: Illinois Rule of Professional Conduct 1.3 Illinois Rule of Professional Conduct 1.7 Illinois Rule of Professional Conduct 1.8 Illinois Rule of Professional Conduct 1.9

Illinois Rule of Professional Conduct 1.15(a)

Illinois Rule of Professional Conduct 1.15(d) 755 ILCS 5/6-1

755 ILCS 15/1

15 ILCS 305-5.15 53 Illinois Administrative Code 400

FACTS

Attorney A practices in a three member firm. One of the other partners practiced in trusts and estates. That partner is now leaving the state and will be going on retired status in Illinois with no intention to service Illinois clients. Attorney A and the remaining partners will not engage in trusts and estates law and have several wills left in their possession.

QUESTIONS What are the ethical obligations for an attorney when storing original wills?

ANALYSIS

Maintaining and storing a will while awaiting probate creates many ethical obligations for attorneys. Even if an attorney stores a client’s will, the will remains the property of the client. Illinois Rule of Professional Conduct 1.15(a) governs safekeeping of property and states that tangible property held by a lawyer shall be identified and appropriately safeguarded. If a client wishes to retrieve his or her property RPC 1.15(d) requires a lawyer to promptly “deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.” Attorneys should be aware of any continuing attorney/client relationship that may remain when creating a will. If the testator remains a client, RPC 1.7 (Conflict of Interest: Current Clients) and 1.8 (Conflict of Interest: Current Clients: Specific Rules) may apply. If the testator is a former client, see RPC 1.9 (Duties to Former Clients). An attorney has certain obligations under 755 ILCS 5/601 to file wills once a testator passes away. As that statute states: “Immediately upon the death of the testator any person who has the testator’s will in his possession shall file it with the clerk of the court of the proper county and upon failure or refusal to do so, the court on its motion or on the petition of any interested person may issue an attachment and compel the production of the will.” If neither Attorney A nor the remaining partners wish to retain the original wills in their possession, other alternatives must be explored. Even the most diligent of attorneys may encounter circumstances in which the testator cannot be located, even after a diligent search. For these circumstances the Illinois Secretary of State’s Office created the Deposit of Wills program. 53 Illinois Administrative Code 400 sets out the requirements for the Deposit of Wills program which include diligent searches for the testator, depositing the will, and receiving a receipt for the will. The complete list of the requirements and further explanation can be found in 53 Ill. Admin. Code 400. Attorneys should have a succession plan in place for whoever takes over their practice. Comment 5 to IPRC 1.3 suggests the following: “To prevent neglect of client matters in the event of a sole practitioner’s death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability, and determine whether there is a need for immediate protective action.” Some attorneys prefer to store wills in a safety deposit box. These are fairly secure as the lessor bank can only open the box after satisfactory proof of death of the lessee. 755 ILCS 15/1 requires the lessor to remove any will found in a safe deposit box and deliver it to the circuit court for the county in which the lessee resided prior to his death or the clerk of the circuit court in which the safe deposit box is located.

CONCLUSION

When storing a will, an attorney must keep in mind the rules regarding safekeeping client’s property and confidentiality. Wills can be especially tricky as it is not always known if the testator is living or if another will has been created. The Secretary of State’s Deposit of Wills offers a solution for an attorney if they are unsure of the testator’s status after a diligent search. This opinion is not comprehensive; an attorney in this situation should consult the statutes mentioned above. _________________________________

Professional Conduct Advisory Opinions are provided by the ISBA as an educational service to the public and the legal profession and are not intended as legal advice. The opinions are not binding on the courts or disciplinary agencies, but they are often considered by them in assessing lawyer conduct. © Copyright 2015 Illinois State Bar Association


________________________________ Opinion No. 15-04 September 2015 Subject: Division of Fees; Referral Fees and Arrangements Digest: A lawyer may share court-awarded legal fees with a nonprofit organization that referred the matter to the lawyer. However, in the absence of court-awarded fees, the lawyer may not share fees with the organization, and may not pay a referral fee to the organization except as may be permitted under Rule 7.2(b)(2). References: Illinois Rules of Professional Conduct, 5.4(a)(4) and 7.2(b)(2)

ABA Model Rule 5.4(a)(4) ABA Formal Op. 93-374

FACTS

An employment law firm provides pro bono services to various nonprofit organizations, including domestic violence shelters; health clinics; community-based worker advocacy organizations; community education centers; housing organizations. On occasion, those organizations refer their constituents to the law firm for consultation on employment matters. In those instances, the firm represents the individual and not the organization. The legal advice the firm provides to the individual client is independent of any relationship the firm may have with the organization.

Several employment law statutes, such as the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"), the Illinois Minimum Wage Law, 820 ILCS 10511 et seq. ("IMWL"), the Illinois Wage Payment and Collection Act, 820 ILCS 115/1 et seq. ("IWPCA"), provide for attorney fee shifting in the event the plaintiff-employee prevails. In such cases, attorneys’ fees are generally awarded following trial through a fee petition filed with and approved by a court or, in the event of a settlement, the settlement, includes payment of the plaintiffs' attorneys' fees and costs, is submitted to a court for approval of its fairness.

The law firm would like to provide a referring organization with a reasonable referral fee to support its work in the community if it is permissible under the Rules of Professional Conduct.

QUESTION

May a lawyer pay a referral fee to a non-profit organization that refers a client to the law firm? If so, may such referral fee be in the form of a percentage of the total attorneys' fees recovered by the firm in the case, assuming the recovered attorneys’ fees have been awarded pursuant to a fee petition approved by a court or pursuant to a settlement approved by a court?

ANALYSIS Although the inquirer does not expressly so state, we have assumed, based on the inquirer’s description of the facts, that the relevant nonprofit organizations do not provide legal services and do not qualify as “not-for-profit lawyer referral services” under Rule 7.2 of the Illinois Rules of Professional Conduct (“RPC”). For the reasons discussed below, the lawyer may share court-awarded legal fees with the nonprofit organizations under RPC 5.4(a)(4), but, in the absence of court-awarded fees, the lawyer may not share other legal fees with the nonprofit organization and may not pay a referral fee to the organization.

In 2010, the Illinois Supreme Court added RPC 5.4(a)(4), which expressly permits a lawyer to share court-awarded legal fees with a nonprofit organization that has referred a matter to the lawyer:

(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:

* * *

(4) a lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or recommended employment of the lawyer in the matter. [Emphasis added.]

RPC 5.4(a)(4) is identical to ABA Model Rule 5.4(a)(4). The ABA Rule codified ABA Formal Opinion 93-374 (1993). That opinion concluded that, even though the ABA rules in effect at that time barred a lawyer from sharing fees with non-lawyers, it nonetheless was “not ethically improper for a lawyer who undertakes a pro bono litigation representation at the request of a non-profit organization that sponsors such pro bono litigation to share, or agree in advance to share, with the organization court-awarded fees resulting from the representation.” Op. 93-374 at 1.

RPC 5.4(a)(4) does not restrict the amount of the legal fees that a lawyer may share with the nonprofit organization. Accordingly, the lawyer may share any percentage of its court-awarded legal fees, including all such fees, with the referring nonprofit organization.

However, the rule is not without limitation. RPC 5.4(a)(4), like its ABA equivalent, limits fee sharing to court-awarded legal fees. The importance of that limitation is discussed in ABA Op. 93-374. As the ABA explained, court-awarded fees “means both that it does not come from the client, and thus present a risk of burdening the client with excessive fees; and that it results from the successful pursuit of some type of litigation that is recognized as serving a public purpose,

and that is intended to be encouraged by such fee awards.” Id. at 3. Further, because “a court has reviewed the fee and determined that it is reasonable, the interest in prohibiting unreasonable fees is satisfied without application of the prophylactic rule against payment for referrals.” Id. at 10. Because fee sharing under RPC 5.4(a)(4) is expressly limited to court-awarded fees, a lawyer may not share with the nonprofit organization any other fees that the lawyer receives, including any fees that client pays to the lawyer out of his or her own pocket.

In the absence of court-awarded fees, the lawyer also may not pay a “referral fee” to the nonprofit organization, even if the source of the fee is not derived from legal fees paid by the client. RPC 7.2(b)(2) governs the payment of referral fees, and provides as follows:

(b) A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may

* * *

(2) pay the usual charges of a legal service plan or a not-for-profit lawyer referral service; [Emphasis added.]

Comment [6] to RPC 7.2 describes a lawyer referral service:

A lawyer referral service, on the other hand, is any organization that holds itself out to the public as a lawyer referral service. Such referral services are understood by laypersons to be consumer-oriented organizations that provide unbiased referrals to lawyers with appropriate experience in the subject matter of the representation and afford other client protections, such as complaint procedures or malpractice insurance requirements. Consequently, this Rule only permits a lawyer to pay the usual charges of a not-for-profit lawyer referral service.

Assuming none of the nonprofit organizations that are the subject of the inquiry qualifies as a not-for profit lawyer referral service under RPC 7.2(b)(2), the lawyer may not pay a referral fee to the nonprofit organization (except to the extent fee sharing is permitted under Rule 5.4(a)(4)).

CONCLUSION

A lawyer is permitted under RPC 5.4(a)(4) to share any percentage, including all, of any court-awarded legal fees with a nonprofit organization that referred the matter to the lawyer. However, in the absence of court-awarded fees, the lawyer may not share legal fees with the nonprofit organization and may not pay a referral fee unless the nonprofit organization also qualifies as a not-for-profit lawyer referral service under RPC 7.2(b).

_________________________________

Professional Conduct Advisory Opinions are provided by the ISBA as an educational service to the public and the legal profession and are not intended as legal advice. The opinions are not binding on the courts or disciplinary agencies, but they are often considered by them in assessing lawyer conduct.


________________________________ Opinion No. 15-05 September 2015 Subject: Advertising and Solicitation Digest: A law firm’s website may contain links to other websites of other businesses and/or organizations. References: Illinois Rules of Professional Conduct, Rules 7.1, 7.2, 8.4(c)

ABA Formal Op. 10-457 ISBA Opinion 96-10

Washington State Bar Ass’n Advisory Opinion 2070 (2004)

FACTS

A business which specializes in the review of entities to determine more cost effective ways of doing business has asked a law firm to post a link to the business on the law firm’s website. The law firm will not receive any compensation from the business.

QUESTION May the law firm ethically link to this business on the law firm website?

ANALYSIS

The inquiring lawyer has asked if his or her law firm can ethically provide a link on the law firm’s website to another business. This link will lead readers of the law firm website to another site presumably managed by the outside company.

The Illinois Rules of Professional Conduct do not bar the use of links by lawyers or law firms on their websites. However, lawyers’ communications, including communications on their websites, must not be false or misleading pursuant to Rules 7.1 and 8.4(c). ISBA Op. 96-10. See also, ABA Formal Op. 10-457.

Accordingly, if the information on the linked site contains false or misleading information about the lawyer or the lawyer’s services, we believe the lawyer must refrain from linking to the site. See, e.g., Washington State Bar Ass’n Advisory Opinion 2070 (2004)(lawyer may link to an attorney rating company website provided the lawyer is responsible for ensuring the truthfulness of the communications regarding the lawyer on the linked website).

Given that the lawyer or the law firm may not control, or be aware of, the completeness or accuracy of the content and information contained on the linked site that is unrelated to the lawyer or the lawyer’s services, the lawyer or the law firm may wish to include a disclaimer informing readers that the law firm does not maintain the linked site and does not necessarily sponsor or approve of the materials and information contained in the linked site.

Finally, although not indicated by the inquiry, if the lawyer or law firm refers clients to the business in question pursuant to an agreement that provides for the business to refer customers to the lawyer, the lawyer must abide by the requirements of Rule 7.2(b)(4). _________________________________

Professional Conduct Advisory Opinions are provided by the ISBA as an educational service to the public and the legal profession and are not intended as legal advice. The opinions are not binding on the courts or disciplinary agencies, but they are often considered by them in assessing lawyer conduct. © Copyright 2015 Illinois State Bar Association

Notice of ISBA Election 2016

Office of Third Vice-President

10 – Seats on the Board of Governors

44 – Seats on the Assembly (Cook County)

88 – Seats on the Assembly (Outside Cook County)

There follows a listing of the offices in the Illinois State Bar Association to be filled by the 2016

annual election. Those elected to the Board of Governors and Assembly take office at the opening

of the Annual Meeting on June 16, 2016 and the third vice-president takes office at the close of

the Annual Meeting on June 18, 2016.

Third Vice-President - 1 to be elected

No incumbent1

Board of Governors, 3 year term

Cook – 5 to be elected

Incumbents:

Albert E. (Al) Durkin, Chicago

Karen A. Enright, Chicago2

Celia G. Gamrath, Chicago

John L. Nisivaco, Chicago2

David B. Sosin, Orland Park

Area 2 (Circuits 17, 19 & 22) – 1 to be elected

Incumbent: Elizabeth M. Rochford, Waukegan

Area 5 (Circuits 5, 6, & 11) – 1 to be elected

Incumbent: Keith E. Fruehling, Urbana

Area 7 (Circuits 1, 2, & 4) – 1 to be elected

Incumbent: Carey C. Gill, Carbondale

Under Age 37 – Downstate – 1 to be elected

Incumbent: Angelica W. Wawrzynek, Mattoon

Under Age 37 – Cook – 1 to be elected

Incumbent: Bridget C. Duignan, Chicago3

Assembly, 3 year Term

Circuit 1 – 2 to be elected

Incumbents:

Elvis C. Cameron, Anna

Sarah J. Taylor, Carbondale

1 Under the bylaws the third vice-president automatically succeeds to the office of second vice-president; therefore, there

is no incumbent for this office. 2 Ineligible to succeed due to term limitations. 3 Ineligible to succeed due to age limitations.

Assembly, 3 year Term (cont.)


Incumbents:

Luke A. Behme, Mt. Vernon

William C. Hudson, Mt. Carmel


Incumbents:

E. Nicole (Nikki) Carrion, Edwardsville1

Ebony R. Huddleston, Godfrey

Anthony E. Rothert, Edwardsville1


Incumbent: Edward (Ted) Graham, Jr., Taylorville


Incumbent: Jared L. Trigg, Danville


Incumbents:

Steven A. Amjad, Champaign

Anthony A. “Tony” Bruno, Urbana

Thomas A. Bruno, Urbana1

John M. (Jack) Kiley, Decatur

Mark C. Palmer, Champaign


Incumbents:

Donald M. Craven, Springfield

Nancy G. Easum, Springfield

Howard W. Feldman, Springfield1

Edward J. Schoenbaum, Springfield

Daniel K. Wright, Springfield 1


Incumbent: James A. (Jim) Hansen, Quincy


Incumbent: Stephanie S. Johnson, Canton1


Incumbents:

Angela Baker Evans, Peoria

Graciela (Grace) Mata, San Diego, CA2

Michele A. Miller, Peoria1

Richard A. Russo, Peoria1

Dick B. Williams, East Peoria

1 Ineligible to succeed due to term limitations. 2 Ineligible to succeed due to residence.



Incumbents:

Sarah R. Duffy, Pontiac1

Pablo A. Eves, Bloomington1

John K. Kim, Bloomington

Stephen R. Pacey, Paxton


Incumbents:

Sean D. Brady, Joliet1

Ted P. Hammel, Joliet

Michael R. Lucas, Joliet1


Incumbents:

George G. Leynaud, Peru1

Melissa M. Olivero, Peru


Incumbents:

Mark D. Churchill, Moline

Amy L. Keys, Moline

Theodore G. Kutsunis, Moline1


Incumbent: Heather A. McPherson, Freeport1


Incumbents:

Steven A. Andersson, Aurora1

Susan W. Rogaliner, St. Charles1

Ryan P. Theriault, St. Charles

Steven D. Titiner, Aurora


Incumbents:

Frank A. Perrecone, Rockford1

Donald L. Shriver, Rockford1

Donald P. Shriver, Rockford

Tamika R. Walker, Rockford


Incumbents:

Robert J. Anderson, Wheaton1

Lynn C. Cavallo, Wheaton

Dion U. Davi, Wheaton1

Kimberly A. (Kim) Davis, Lisle

1 Ineligible to succeed due to term limitations.


Circuit 18 (cont.)

Robert Handley, Downers Grove1

Terra Costa Howard, Glen Ellyn

Patrick B. (Pat) Hurley, Wheaton

Henry D. Kass, Aurora1

John F. Knobloch, Naperville1

James J. Laraia, Wheaton

Colleen M. McLaughlin, Wheaton1

Ronald D. Menna, Jr., Wheaton1

Sharon R. Mulyk, Glen Ellyn

Christine M. Ory, Wheaton

David N. Schaffer, Naperville


Incumbents:

Robert O. Ackley, Libertyville

Terrence J. (Terry) Brady, Libertyville

Markham M. (Mark) Jeep, Waukegan

Joseph Thomas Morrison, Waukegan

Torri M. Newsome, Waukegan

Krysia W. Ressler, Waukegan

Ennedy D. Rivera, Highland Park

Gary L. Schlesinger, Libertyville

Timothy J. Storm, Barrington1

Michael S. Strauss, Libertyville1

Bernie Wysocki, Waukegan


Incumbents:

Kathie Blackman Dudley, Columbia

L. Dominic “Nick” Kujawa, Jr., Belleville

James M. Radcliffe, III, Belleville

Thomas (Tom) Speedie, Jr., Nashville1

Shira D. Truitt, Belleville


Incumbent: J. Imani Drew, Kankakee


Incumbents:

Richard Curran, Jr., Crystal Lake1

James P. Kelly, Crystal Lake

Rhonda L. Rosenthal, Crystal Lake1


Incumbents:

Richard L. Turner, Sycamore



Cook County – 44 to be elected

Incumbents:

F. Michael Alkaraki, Chicago

Patrice Ball-Reed, Chicago1

Mark Edward Becker, Western Springs

Catherine R. Brukalo, Chicago

Samuel F. (Sam) Cannizzaro, Chicago1

Anthony Vincent Casaccio, Chicago

Joseph M. Cataldo, Glenview

Joel L. Chupack, Chicago1

Kimberly A. Cook, Chicago

Gina A. DeBoni, Chicago

Alice E. Dolan, Chicago

Jessica R. Durkin, Chicago

Sharon L. Eiseman, Chicago

John M. Fitzgerald, Chicago

Eugene F. Friedman, Chicago1

Michele M. Jochner, Chicago

Cindy M. Johnson, Chicago

Eli Korer, Chicago

Jeffrey G. Liss, Chicago

Joseph F. Locallo, III, Chicago1

Adam T. Margolin, Chicago

Pamela S. Menaker, Chicago1

Julie A. Neubauer, Chicago

Daniel E. O’Brien, Chicago

Kevin E. O’Reilly, Chicago

J. Damian Ortiz, Chicago1

Alan Pearlman, Northbrook

David Rabinowitz, Chicago

Deborah J. Soehlig, Chicago1

Letitia “Tish” Spunar-Sheats, Chicago1

Sarah E. Toney, Chicago

David Vander Ploeg, Chicago1

John A. Wasilewski, Palos Heights1

Alexander P. White, Des Plaines

Cory White, Chicago

Mary Margaret Williams, Chicago

Bryan J. Wilson, Chicago

Erin M. Wilson, Chicago

Mark E. Wojcik, Chicago

See next page for Nomination information.


Nomination

Members who wish to be candidates for office must reside in the proper geographic jurisdiction,

must meet other requirements for a particular office, and must be in good standing with the ISBA

at the close of the nominating period.

Voting Address: Bylaws Sec. 1.11 reads: For purposes of voting and candidacy for ISBA elected

office, a member’s voting address shall be his or her primary legal office as designated by the

member. If a member’s primary legal office is not within the state of Illinois, such member may

designate their Illinois residence as their voting address; if no voting address is designated, the

member shall be considered a non-resident member.

Nominating petitions must be in writing and in the substantial form set forth in Para. 3.2. of the

ISBA Policy and Procedures on Association Elections. Nominating petitions are available on the

ISBA website under “About>Leadership” or directly at www.isba.org/elections.

Nominating petitions may be filed no earlier than Monday, January 4, 2016 and must be filed by

4:30 p.m. on Monday, February 1, 2016 at either the Illinois Bar Center, 424 South Second Street,

Springfield or the ISBA Chicago Office at 20 S. Clark Street, 9th Floor, Chicago. Petitions must

be physically submitted with original signatures. Petitions submitted via email or fax will not be

accepted. (Para. 3.4., ISBA Policy and Procedures on Association Elections.)

The ISBA Bylaws and Policy and Procedures on Association Elections, additional pertinent

information and petition forms for each category of candidacy may be found on the ISBA website

under “About>Leadership” or directly at www.isba.org/elections.

Voting

All members of the Association in good standing (except non-lawyer members) are eligible to vote

for the office of third vice-president.

Eligible members residing in the areas in which there are contested elections may vote in the

appropriate Board of Governors and Assembly race.

The 2016 Election will be conducted by electronic voting. Paper ballots will be utilized in some

instances. Full details on the voting process will be provided to the full active membership well

in advance of the formal election.

September 2015 Robert E. Craghead

Executive Director

By policy, a member’s dues must be paid by March 1, 2016 for the period ending June 30, 2016, in order to be eligible to vote in ISBA Elections.

http://www.isba.org/elections

http://www.isba.org/elections

assembly!meeting! december!12,!2015! informationalreports ......to the client or third person any...

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