The Docket - February 2020

THE

DOCKET The Official Publication of the the Lake Lake County County Bar Bar Association Association •• Vol. Vol. 27 26 No. No. 21• •February January 2020 2019

CONFERENCE ROOM For meetings only. Seats 16 – 20 comfortably During business hours (8 am – 5 pm) • Member- Free • Non-Member $150/1st hour. $50/hour after • Non-Member, Not-for-Profit: $25/hour

2019 LCBA OFFICE RENTAL PRICING

After Hours (5 pm – 9 pm) • Member - $25 per hour • Non-Member – Not Available • Non-Member, Not-for-Profit: $50 per hour

MEMBER CENTER “The Bar” Accommodates up to 100 people During business hours (8 am – 5 pm) Members (add $25/hour for after hour events) • Meeting only (individual or group, no food or beverages served: Free • Self-Service reception or party (provide own alcoholic beverages): $50 per hour • Hosted beer & wine reception or party (beer & wine provided by Association): $250/ 1st hour, $50/hour after Non-Members: (add $50/hour for after hour events) • Meeting only (individual or group, no food or beverages served): $50 per hour • Self-Service reception or party (provide own alcoholic beverages and food): $300/ 1st hour, $50/hour after • Hosted beer & wine reception or party – Not Available Non-Member, Not-for-Profit: (add $25/hour for after hour events) • Meeting only (individual or group, no food or beverages served): $25 per hour • Self-Service reception or party (provide own alcoholic beverages and food): $150/1st hour, $25/hour after • Hosted beer & wine reception or party – Not Available Association Committee Meetings (Conference Room or Member Center) Without beer & Wine - Free With Hosted Beer & Wine - $150 flat fee (for 5 – 15 people), $200 (over 15 people) Room rentals are based on availability. Rentals include use of A/V already in room (phone, TV, Speaker. WIFI).

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Contact the LCBA Office at 847-244-3143 or info@lakebar.org

Contents THE DOCKET • Vol. 27, No. 2 • February 2020

FEATURES 14 Access to Justice in Lake County

BY JUDGE ELIZABETH M. ROCHFORD

18 The Payment of Attorneys’ Fees by Third Parties

BY HON. RAYMOND J. MCKOSKI (RET.)

A publication of the

22 Who Gets What? Avoiding Pitfalls in MSA Drafting for Dividing Retirement Assets

BY SARAH KAHN, ESQ.

300 Grand Avenue, Suite A Waukegan, Illinois 60085 (847) 244-3143 • Fax: (847) 244-8259 www.lakebar.org • info@lakebar.org THE DOCKET EDITORIAL COMMITTEE Jeffrey A. Berman,Co-Editor Hon. Charles D. Johnson,Co-Editor Jennifer C. Beeler Hon. Michael J. Fusz Hon. Daniel L. Jasica Sarah A. Kahn Kevin K. McCormick Hon. Raymond J. McKoski Tracy M. Poulakidas Stephen J. Rice Neal A. Simon Hon. ­­­James K. Simonian Rebecca J. Whitcombe Alex Zagor STAFF Dale Perrin Executive Director Jose Gonzalez Membership Coordinator Katherine Montemayor Office Manager

AD SIZE 1/8 Page 1/4 Page 1/2 Page Full Page Inside Front or Inside Back Cover

Back Cover

ONE ISSUE

6 ISSUES

28 To Leave Them Be, or not to Leave Them Be … that is the (Legal) Question

BY JUDGE ARI FISZ

COLUMNS 2 President’s Page LCBA Bylaws: We revised; you approve.

BY STEPHEN J. RICE, PRESIDENT

4 The Chief Judge’s Page Courthouse News

BY CHIEF JUDGE DIANE WINTER

6 Bar Foundation

Have a Happy, Prosperous and Safe New Year!

10 Legislation of Interest Report 12 Monthly Case Report 32 The Meeting Minutes November 21, 2019

BY TARA R. DEVINE, SECRETARY

34 In the Director’s Chair

Esprit de Corps

BY DALE PERRIN, EXECUTIVE DIRECTOR

LCBA EVENTS

IFC 2019 LCBA Office Rental Pricing 3 The Calendar of Events 5 New LCBA Members 5 Grapevine 5 LCBA Event Pictures 7 Lawyer Referral Service 7 Doctor Lawyer Dinner 8-9 Gridiron 21 Law Day 2020 27 Family Law Conference 36 Monthly Committee Meetings BC Member Reception

BY NICHOLAS A. RIEWER, PRESIDENT

12 ISSUES

$85 $80 $75 $145 $135 $125 $195 $185 $175 $325 $295 $275 $650 per issue $800 per issue

Classified Advertising

Standard $1.75 per word (Rate for LCBA Members) Text $2.75 per word (Rate for Non-Members) Bold $3.50 per word (Rate for LCBA Members) Text $4.50 per word (Rate for Non-Members) Classified Advertisement may contain as many words, numbers, symbols and boldface type.

Advertising Rates To place an ad or for information on advertising rates, call (847) 244-3143. Submission deadline: first day of month preceding the month of publication. All submissions must be made in electronic format (high resolution PDF or JPG format at a resolution of 300 pixels per inch or more.) See www.lakebar.org/page/Docket_Advertising The Docket is the official publication of the Lake County Bar Association, 300 Grand Avenue, Suite A, Waukegan, Illinois 60085 (847) 2443143, and is published monthly. Subscriptions for non-members are $45.00 per year.

Reproduction in whole or part without permission is prohibited. The opinions and positions stated in signed material are those of the authors and not necessarily those of the Association or its members.

All submitted manuscripts are considered by the Editorial Board. All letters to the editor and articles are subject to editing. Publications of advertisements is not to be considered as an endorsement of any product or service advertised unless otherwise stated.

LCBA Bylaws: We revised; you approve.

T

wo years ago we were in the middle of gearing up for the 2018 Gridiron. That event always produces a very busy time at our Association, because the

2019-2020 OFFICERS & DIRECTORS Stephen J. Rice President Hon. Patricia L. Cornell First Vice President Joseph M. Fusz Second Vice President Kathleen Curtin Treasurer Tara R. Devine Secretary Brian J. Lewis Immediate Past President Hon. Christen L. Bishop Katharine S. Hatch David R. Del Re Thomas A. Pasquesi Dwayne Douglas Daniel Hodgkinson

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directors and actors meet at least twice weekly to get the show ready.

On January 30, 2018, I helped he-whose-nameshall-not-be-mentioned clean and close Unit C of our building, which we use for Gridiron practices. The next day H.W.N.S.N.B.M. was gone.

As we began preparing the 2020 Gridiron this January, I experienced some uncomfortable flashbacks.

Both practically and metaphorically, the 2018 Gridiron proved that the LCBA show would go on. And so here we are today, preparing the 2020 Gridiron, gearing up for real estate and family law travel seminars, and conducting the many other activities that make our Association a vital part of our legal community.

The last two years has made the LCBA Board question and improve many aspects of our orga-

The

President’s Page

nization’s operations, from top to bottom. This year, at First VP Hon. Patricia Cornell’s instigation, we undertook a review of the LCBA bylaws. Judge Cornell drew together Judge Rochford, Don Morrison, Tom Gurewitz, Kathy Curtin, David Del Re, and me for this task.

What we found, aside from typos and grammatical issues, were a set for rules that generally serve us well, but needed some light modernizing.

I won’t bore you with the nitty-gritty details (bylaws revisions do not make for a very compelling President’s Page). Rather, I will provide only some comments that highlight a few of our modifications.

As I write, the bylaws revisions are almost but not completely done, and they will be circulated to all of our members prior to our March 24 Annual

BY STEPHEN J. RICE PRESIDENT Meeting, at which we will seek your approval (as the bylaws require).

Our existing bylaws had a decidedly 1950s style to them: one purpose of the Association was to “promote the science of jurisprudence.”

The sentiment is correct, but the Buck Rogers verbiage a bit anachronistic.

As our revisions provide, we will henceforth “tweet about jurisprudence.” Just kidding! We will continue “to encourage increased competency and knowledge of current laws.”

And we will continue do so mostly without the help of Instagram or Buck Rogers.

We recommend continuing the two membership categories of “Attorney” and “Associate” member. Attorney Members run the LCBA: they hold the leadership positions and vote.

Associate Members, who are non-attorneys, are allied professionals, but are given no role in LCBA governance. We are primarily an association of attorneys and always will be, but we currently have 75 Associate Members (which include paralegals, an ever-growing category of legal professional).

Having these individuals and organizations in our ranks helps both our bottom line and the professional fellowship that is a bar association’s raison d’être.

One other category of membership drew our attention. The bylaws committee recommends a tweak to the “Life Attorney Member” status in our bylaws. Increasingly, due to simple demographics, the Association Board anticipates that retiring members will seek dues waivers. The issue is one you can readily understand: once you retire from the active practice of law, will you remain a member of bar associations, or even remain actively registered with the ARDC? Maybe, but probably not. Did you know that the ARDC allows retired attorneys to register as “retired,” with no fee, but still perform pro bono services? See Ill. Sup. Ct. R. 756.

On the one hand, a bar association depends on membership dues to fund its basic operations.

Losing those dues is an organizational challenge.

On the other hand, experience shows that retired members will let their membership lapse if we offer no accommodation.

Our bylaws previously stated that to qualify for “Life Attorney Membership status,” a member must have had 30 years of continuing LCBA membership. (Going back further, the Association apparently waived dues for any member over a certain number of years of active membership.) Because the number of years was somewhat arbitrary (e.g., we have some very engaged members who moved here or became licensed just 15 years ago, but might otherwise qualify), we have eliminated that numerical requirement. What continues is that, upon application, the Association Board may “vary or eliminate the dues for Life Attorney Members.” Our recent practice has been to do just that: we vary the dues payment for members who are no longer actively practicing law. Doing so shows that we value these members’ continued engagement with the Association, which could be considered an in-kind dues payment of its own.

Of greater substance is the following proposed alteration: we suggest a slight modification to the nominating committee.

The nominating committee is currently comprised of the last three immediate past presidents, plus four other people appointed by the then-serving President. Historically, neither the President, First VP, or Second VP have served on the nominating committee.

The three immediate past presidents ensure that the nominating

committee has a wealth of institutional knowledge, which is a good thing. But the fact that the vice presidents have no direct role in selecting the executives and board members with whom they will serve— really, whom they will lead—struck us as odd.

Because the vice presidents have a stake in who gets selected, we thought at least one of them should have a voice in the process. For that reason, we propose that the nominating committee consist of the immediate two past presidents, plus the currently serving second vice president, and then— as before—four other members selected by the President.

Finally (for the purpose of this article), the bylaws committee inserted a removal article, addressing how to remove officers, directors, or members of the association. Such procedures were absent from our previous bylaws, and we deem it important to have some guidance for future boards, should removal become an issue.

Separately, we moved the bylaws text about the bar poll to the document that sets for the Standards for Judicial Selection and Retention. The Standards are a separate document from our bylaws, but they are referenced in the bylaws. Because the bar poll is so closely interrelated with the work of the Judicial Selection and Retention Committee, we felt it more logical that the bar poll procedures be incorporated in those Standards, rather than in

our bylaws.

Before our annual meeting set for March 24, the Association will circulate a full revision of our bylaws for your consideration. You will likely see the changes above, as well as many other smaller tweaks. If you have questions or comments, feel free to reach out to me or others on our committee.

And on a lighter note: I hope to see you at the Gridiron on February 20 or 21, where the show will definitely continue to go on!

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Calendar of Events

February 21 & 22 2020 Gridiron, Gorton Center, Lake Forest March 5-7 Real Estate Committee Conference Nashville, TN March 11 Doctor/Lawyer Dinner Primo’s Restaurant, Gurnee March 24 Annual Meeting & Liberty Bell Awards Luncheon Waukegan City Hall April 23-25 Family Law Committee Conference Albuquerque, NM April 27-May 1 Lawyers in the Classroom April 28 Access to Justice Luncheon Waukegan City Hall April 30 Ask a Lawyer Drop-In Clinic Waukegan Public Library May 1 Ask a Lawyer Call-In Clinic LCBA Office June 6 Installation Dinner Ivanhoe Country Club

February 2020

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Courthouse News

G

reetings LCBA members, it is with a great deal of excitement that I begin service as Chief Judge of the Nineteenth Judicial Circuit.

The Circuit has a myriad of programs that enhance the justice system in Lake County. To implement these programs, the judiciary is supported by many skilled and hard-working employees and volunteers.

Also, most of the programs require close cooperation with and the support of our Lake County Justice Partners. Throughout my term as Chief Judge, I hope to highlight some of these behind the scenes efforts as well as keep LCBA members informed about courthouse news and changes.

CHANGES IN THE JUDICIARY Judge Ukena is retiring effective the end of January.

A reception to celebrate his judicial career is scheduled for January 30th. Please join us in the Jury Assembly at 8:30 a.m. for coffee and light refreshments as we wish Judge Ukena all the best in retirement. Be

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forewarned, court calls may be delayed that morning.

A newly appointed associate judge will be sworn in on January 31st.

The new associate judge will be in training during the month of February, so expect a new face presiding in traffic court by March.

NEW EXECUTIVE DIRECTOR The Nineteenth Judicial Circuit is fortunate that Mr. Todd Schroeder has taken the position of Executive Director to lead the administrative functions of the Nineteenth Judicial Circuit. Mr. Schroeder has most recently served as the Assistant Director of the Court Services Division within the Administrative Office of Illinois Courts (AOIC) headquartered in Springfield, Illinois. His experience with the Illinois Conference of Chief Judges and various Illinois Supreme Court initiatives will ensure the Nineteenth Circuit will remain at the forefront of Access to Justice efforts and other Illinois Supreme Court initiatives.

The

Chief Judge’s Page Prior to his tenure with the AOIC, Todd served as the Executive Director of the 17th Judicial Circuit, Winnebago County. Todd has hit the ground running and everyone looks forward to drawing upon his expertise and experience with the administrative functions of the Nineteenth Judicial Circuit.

CONSTRUCTION The Babcox Center courtrooms (referred to as courtrooms - C-120, C-220 and C-221) are being remodeled and refreshed.

This construction project will provide office space for the Felony Review Division of the State’s Attorneys Office as well as space for Probation/Pretrial Services. A new receiving and booking area for the Sheriff’s office is included in the remodeling efforts. This construction project is expected to be completed by May 2020.

BY CHIEF JUDGE DIANE WINTER Once completed, Bond Court will be transferred back to the former C-120 location and at least two misdemeanor courtrooms will be reopened in the Babcox Center.

The Depke Juvenile Complex is benefitting from a makeover which includes new carpeting and floors in the FACE-IT wing and new coat of paint. The main courthouse building is scheduled for a new roof this summer. Some construction noise can be expected; however, the contractor will be required to minimize interruptions to court proceedings.

SRL Coordinator/ Center for Self-Representation The Nineteenth Judicial Circuit is pleased to announce the hiring of a full-time Self-Represented Litigant (SRL) Coordinator for Lake County litigants. The SRL Coordinator will be responsible

for guiding litigants with understanding the court process, forms and available services. Current areas of concentration will be Family/Divorce, Small Claims, Mortgage Foreclosure and Expungements.

Please read the article by Judge Rochford in this issue of the Docket for more details. The SRL Coordinator’s office will be located in a newly designed space in the law library as part of the Center for Self-Representation. A modular cubicle unit will be installed where the lounge area is currently located in the law

library. The lounge area will be moving to a space created by the removal of book shelves no longer utilized. Our JusticeCorps supervisor will also be located in this space with the SRL Coordinator to enhance service to SRL litigants.

BOND COURT As part of the ongoing efforts of the Nineteenth Judicial Circuit and the Lake County Sheriff’s office to ensure that low risk pretrial defendants are released or never remanded to the jail facility, the

Pretrial Division began a new program. Starting last November 2019, pretrial officers began providing the Bond Court judge with a full bond report utilizing evidence-based risk assessment tools prior to the first appearance in Bond Court.

Currently, pretrial officers are concentrating their efforts to prepare a full bond report for defendants arriving from jurisdictions with the highest number of arrests. The ultimate goal is to provide full bond reports on all arrestees prior to their first appearance in Bond Court.

FUQUA WINTER MEMBER RECEPTION, JUDGE FUSZ RETIREMENT DINNER & JUDICIAL SELECTION & RETENTION COMMITTEE MEETING more pictures on page 26

Welcome

New LCBA Members Attorneys David Adler Adler Law Group

Kelli Ford Salvi & Maher, LLC Hunter Jones McAlister Law LTD Gautham Kaveti Prairie State Legal Waukegan Neil Narut Proper Title Michael Starzec Blitt & Gaines PC Brett Williamson Stogsdill Law Firm, P.C. Gene Wilson Law Offices of Gene Wilson

The

Grapevine

Fuqua Winter Member Reception

Fuqua Winter Member Reception

Fuqua Winter Member Reception

Fuqua Winter Member Reception

Judge Fusz Retirement Dinner

Judicial Selection & Retention Committee Meeting

Mary Clark was unanimously selected to receive the IICLE Judge Edward Jordan Annual Family Lawyer Lifetime Achievement Award in memory of the late Honorable Judge Jordan. Each year, at the annual IICLE divorce seminar on Martin Luther King day, this award is given in recognition of an individual who has made an impactful contribution to the field of family law during their life time.

February 2020

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Have a Happy, Prosperous and Safe New Year!

A

s I write this column, I realize I am, again, at least a month behind. In the January edition of the Docket, I discussed Veteran’s Day and the money we raised for the Veteran’s History Project. I figured I wasn’t BOARD OF TRUSTEES Nicholas A. Riewer President Carey J. Schiever Vice President Joann M. Fratianni Secretary Perry S. Smith Jr. Treasurer Jeffrey A. Berman Immediate Past President Jennifer L. Ashley Nandia P. Black Douglas S. Dorando Kristie Fingerhut Hon. Fred Foreman (Ret.) Joseph M. Fusz Scott B. Gibson Kenneth J. Glick David J. Gordon Keith C. Grant Amy L. Lonergan Fredric B. Lesser Steven P. McCollum Joseph Morrison Michael G. Nerheim Melanie Rummel Hon. Henry C. Tonigan (Ret.) Hon. Joseph R. Waldeck (Ret.)

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too far off if I’m wishing you a Happy New Year in the February edition of The Docket. On behalf of the Lake County Bar Foundation, I would like to take this opportunity to wish all of you a very happy, safe and prosperous New Year.

As you may be aware, the Lake County Bar Foundation is a “not-for-profit” organization. One of the purposes of the Foundation, as set forth in its bylaws, is to promote the charitable, educational, scientific and literary mission of the Lake County Bar Association. Another responsibility of the Foundation is the purchasing, owning, managing, leasing and renting out to qualified tenants, (including the Association,) real estate, buildings or portions thereof as approved by the trustees. As you may imagine, fulfilling these responsibilities does take a considerable amount of money.

The Foundation raises funds in several different ways. One is the Bienni-

BY NICHOLAS A. RIEWER PRESIDENT al Gala which will occur again in November of 2020.

Another way we obtain funds is through Cy Pres distributions from class action suits. Unfortunately, the Cy Pres awards have been drying up substantially over the last few years. Another way that we raise funds is through the raffle of the condo in Cabo San Lucas. We also gladly welcome individual contributions to the Foundation from our members.

One of the major sources of funds for the Foundation has been from the Lake County Bar Association annual membership fee. In past years there was a line item on the renewal application that indicated that a certain amount of money would go to the Lake County Bar Foundation (the “Dues Check-Off”).

For the 2018-2019 year,

we received approximately $25,000.00 through the Dues Check-Off. When the renewal application for the 2019-2020 year was sent to the membership, there was a change in how the donations to the Foundation was handled. In the past, the membership renewal form included a line item designated for the Foundation and members had the opportunity to opt out if they so choose. The most recent membership renewal form (for the 2019-2020) year required the members to affirmatively designate an amount to contribute to the Foundation. If no amount was chosen, no money would go to the Foundation. Because of the change in the renewal form, I don’t think a lot of members realized that they had to affirmatively check an amount to contribute to

the Foundation. As a result, we have only collected approximately $7,500.00 for the calendar year 20192020, which is down approximately $17,500.00 in membership contributions to the Foundation from prior years. This deficit represents just under 20% of our annual budget.

Several months ago, when I realized that the dues check-off was substantially down, I asked Dale to get me a list of people who did not contribute to the Foundation this year. The first name that glared at me from the list was my own.

When I continued to look

at the list, I saw that most of the members of my firm also had not contributed.

We immediately corrected the situation and sent in a contribution to the Foundation on behalf of our firm. I then tried to figure out what happened.

I spoke with my office manager and asked if she had opted out of any of the contributions that were on the renewal forms. When she indicated that she had not, I realized that you had to opt in for this year and not opt out. I suspect that many of the people who did not contribute to the Foundation did so inadvertently,

as my firm had done.

Because of this situation, I have asked Dale to send out an email to the entire membership asking everyone to contribute to the Foundation if they have not already done so.

For the year 2018-2019, the amount that went to the Foundation, if you did not opt out, was $40.00. If you have already contributed to the Foundation, please disregard this, or, if you are in a generous mood, feel free to make an additional contribution.

Finally, the Lake County Bar Association Gridiron is coming up and will take

place on February 21 and February 22. If you are interested in buying tickets or being a sponsor of the Gridiron, you can go to the Lake County Bar Association website and click on the calendar section.

You will be directed to a link that will allow you to buy tickets and become a sponsor, if you so choose.

During both days of the Gridiron, the Lake County Bar Foundation will be running a 50/50 raffle which will be awarded at the end of each evening.

Again, have a very Happy, Safe and Prosperous New Year!

Lake County Bar Association and Medical Society’s Annual Doctor-Lawyer Dinner Medical cannabis updates: The 5-year journey since medical cannabis legalization in Illinois: A physician’s perspective.

The Illinois’ Compassionate Care Act for Medical Cannabis Patient Program started in 2014, with the first dispensary opening for business in November 2015. Dr. Leslie Mendoza Temple, Family and Integrative Medicine physician in Glenview, and former chair of the Medical Cannabis Advisory Board for the Illinois Department of Public Health will share her perspectives on how cannabis has impacted her medical practice. She has certified over 430 patients since the program started. She will discuss the ongoing challenges and opportunities that face patients and the medical community with respect to clinical benefits and side effects, public health risks, and education.

March 11, 2020 Primo’s Restaurant

720 N. Milwaukee Ave., Gurnee 5:30 pm Reception 6:30 pm Dinner 7:30 pm Program $55 per person Spouses and Guests welcome Presented by Dr. Leslie Mendoza Temple

Medical Director of the Integrative Medicine Program at NorthShore University HealthSystem and Clinical Associate Professor in Family Medicine at the University of Chicago Pritzker School of Medicine.

REGISTRATION AVAILABLE ONLINE AT WWW.LAKEBAR.ORG

February 2020

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ACT!

Advertise!

ATTEND! Gorton Community Center

400 E. Illinois Road • Lake Forest, IL 60045

Doors Open at 6:30 p.m.

Show at 7:30 p.m.

RESERVATION FORM Friday, February 21, 2020 Saturday, February 22, 2020 (Includes $3.50 Eventbrite Fee)

# of tickets ____ x $52.50* per person = $_____ # of tickets ____ x $52.50* per person = $_____

_______________________________________ Company/Firm

_______________________________________ Contact

_______________________________________ Address

_______________________________________ City, State & Zip

_______________________________________ Phone

_______________________________________ E-mail

METHOD OF PAYMENT Check Discover*

Visa* MasterCard* American Express*

_____________________________________ Card Number

_____________________________________ Expiration Date & CCV

_____________________________________ Signature

*A 4% Credit Card Processing Fee will be applied to purchases paid with a credit card. All tickets must be paid for at the time of the order. No refunds issued after February 14, 2020.

RETURN THIS FORM WITH YOUR PAYMENT: Lake County Bar Association • 300 Grand Avenue, Suite A • Waukegan, Illinois 60085 TEL: 847-244-3143 • E-mail: info@lakebar.org

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BROADWAY LCBA Style Dinner on your own

Doors open at 6:30 p.m. with hosted beer and wine Curtain rises at 7:30 p.m.

SPONSORSHIPS FEED THE CAST The Need: • Gridiron actors meet 10 times in preparation for the show • This occurs after work • They are hungry and grumpy The problem: • Food cost $ The solution: • You can sponsor a meal for $175 • (That’s what it costs to feed sad, grumpy actors) The benefit: • We acknowledge you in the Gridiron program • Your name/logo will grace the food table • The actors will refer you cases worth millions • The Pope will expedite your path to sainthood

RESTAURANT SPONSORSHIP Seeking Lake Forest area restaurants to become “preshow” sponsors of the Lake County Bar Association biannual Gridirion Show. For one low price ($299) we will advertise your restaurant to 1,000 members, over 300 whom will be in Lake Forest for the show.

1,000 Lake County Lawyers will see you in: • Our January and February 2018 magazine, highlighting your special offer in connection with our show • A complimentary 1/4 page advertisement in our March 2020 magazine • Acknowledgement on the Lake County Bar Association website and in weekly e-mails to 1,000 members through February 2020.

PLAYBILL ADVERTISING RESERVATION The 2020 Gridiron Show, The Lake County Bar Association’s hilarious musical follies, will be held February 21 & 22, 2020 at the Gorton Community Center, Lake Forest.

You can to be part of the fun by advertising in the just-as-hiliarious keepsake Gridiron Playbill. You know you’ll be sorry if your ad isn’t included. Reserve your space now!

AD SIZE - COLOR Inside Front/Back Cover Full Page (Live Area) Half Page (Horizontal) Half Page (Vertical) Quarter Page (Horizontal) Quarter Page (Vertical) Business Card (Horizonal) Graphic Design Service Fee

_______________________________________

Company/Firm

_______________________________________ Contact

_______________________________________ Address

DIMINSIONS (width x length) 8.5” x 11” 7.75” x 10.265” 7.75” x 4.895” 3.75” x 10” 7.75” x 2.34” 3.75” x 4.91” 3.5” x 2” N/A

PRICE $700 $450 $250 $250 $150 $150 $125 $50/hour

METHOD OF PAYMENT Check Discover*

Visa* MasterCard* American Express*

_____________________________________ Card Number

_______________________________________ City, State & Zip

_____________________________________ Expiration Date & CCV

_______________________________________

_____________________________________

Phone

Signature

_______________________________________

*A 4% Credit Card Processing Fee will be applied to purchases paid with a credit card.

E-mail

RETURN THIS FORM WITH YOUR PAYMENT: Lake County Bar Association • 300 Grand Avenue, Suite A • Waukegan, Illinois 60085 TEL: 847-244-3143 • E-mail: info@lakebar.org

February 2020

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December 2019

Legislation of Interest Report

Editor’s Note: Legislation of Interest Report is a new feature of The Docket, provided by 19th Judicial Circuit Law Librarian, Emanuel Zoberman.

STATUS HB0188 Completed Legislative Action Spectrum: Partisan Bill (Democrat 7-0) Status: Passed on December 20 2019 - 100% progression Action: 2019-12-20 - Public Act . . . . . . . . . 101-0611 Statutes Amended In Order of Appearance 30 ILCS 105/5.891 new 625 ILCS 5/3-699.17 new Synopsis As Introduced Amends the Illinois Vehicle Code. Provides that the Secretary of State may issue special registration plates designated as Post-Traumatic Stress Disorder Awareness license plates. Provides that the original fee and renewal fee shall be $25. Creates the Post-Traumatic Stress Disorder Awareness Fund. Makes corresponding changes in the State Finance Act. House Committee Amendment No. 1 Deletes reference to: 30 ILCS 105/5.891 new 625 ILCS 5/3-699.17 new Adds reference to: 625 ILCS 5/3-421 from Ch. 95 1/2, par. 3-421 Replaces everything after the enacting clause. Amends the Illinois Vehicle Code. Provides that, if a person has a registration plate in his or her name and seeks to reassign the registration plate to his or her spouse, the Secretary shall waive any transfer fee or vanity or personalized registration plate fee upon both spouses signing a form authorizing the reassignment of registration. Provides that, if a registrant seeks to reassign the registration plate to his or her child, the Secretary shall waive any transfer fee or vanity or personalized registration plate fee.

Senate Floor Amendment No. 1 Adds reference to: 625 ILCS 5/6-305 Provides that a person who rents a motor vehicle to another may inspect the person’s driver’s license through electronic or digital means. Requires a person renting a vehicle to another to verify that the driver’s license of the person is unexpired (instead of comparing the signature on the driver’s license to the signature on the rental

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agreement). Removes a requirement that a person renting a vehicle to another keep a record of when the person renting the vehicle was issued a driver’s license.

STATUS SB0391 Completed Legislative Action Spectrum: Partisan Bill (Democrat 4-0) Status: Passed on December 20 2019 - 100% progression Action: 2019-12-20 - Public Act . . . . . . . . . 101-0616 Statutes Amended In Order of Appearance 325 ILCS 5/1 from Ch. 23, par. 2051 Synopsis As Introduced Amends the Abused and Neglected Child Reporting Act. Makes a technical change in a Section concerning the short title.

Senate Floor Amendment No. 1 Deletes reference to: 325 ILCS 5/1 Adds reference to: 325 ILCS 5/3 from Ch. 23, par. 2053 Replaces everything after the enacting clause. Amends the Abused and Neglected Child Reporting Act. Provides that a child shall not be considered abused for the sole reason that the child has been diagnosed with or has tested positive for Ehlers-Danlos syndrome, or for the sole reason that the child’s parent, sibling, or grandparent has been diagnosed with or has tested positive for Ehlers-Danlos syndrome. Effective immediately.

House Committee Amendment No. 1 Deletes reference to: 325 ILCS 5/3 Adds reference to: 305 ILCS 5/5-5.23 Replaces everything after the enacting clause. Amends the Medical Assistance Article of the Illinois Public Aid Code. In a provision concerning mental health services for children, requires a statewide association representing

physicians to establish, within a specified time period, a clear process by which an eligible youth, emerging adult, or transition-age adult, or the youth’s or emerging adult’s parents, guardian, or caregiver, is identified, notified, and educated about the Family Support Program and the Specialized Family Support Program upon a first psychiatric inpatient hospital admission, and any following psychiatric inpatient admissions. Provides that upon a youth’s, emerging adult’s or transition-age adult’s second psychiatric inpatient hospital admission, prior to hospital discharge, the hospital must, if it is aware of the patient’s prior psychiatric inpatient hospital admission, ensure that the youth’s parents, guardian, or caregiver, or the emerging adult or transition-age adult, have been notified of the Family Support Program and the Specialized Family Support Program. Provides that, if a dependent youth has been left at a psychiatric hospital beyond medical necessity, prior to referring the youth to the Department of Children and Family Services the psychiatric hospital shall attempt to contact the youth and the youth’s parents, guardian, or caregiver about the Family Support Program and the Specialized Family Support Program, and shall provide educational materials on those programs. Provides that no State agency or hospital shall be prohibited from discussing medical treatment options or a referral to legal counsel with a parent or guardian of a youth admitted to a psychiatric hospital inpatient unit. Effective immediately.

STATUS SB1711 Completed Legislative Action Spectrum: Partisan Bill (Democrat 9-0) Status: Passed on December 20 2019 - 100% progression Action: 2019-12-20 - Public Act . . . . . . . . . 101-0619 Statutes Amended In Order of Appearance 405 ILCS 5/6-103.3 Synopsis As Introduced Amends the Mental Health and Developmental Disabilities Code. Provides that the Department of State Police shall annually compile and submit a report to the Governor and General Assembly no later than May 31 of each calendar year on the number of persons reported as posing a clear and present danger to themselves or others by persons required to report that information to the Department of State Police under the Code. Provides that the report shall be based on information submitted by each county, municipality, public elementary or secondary school, private elementary or secondary school, or public or private community college, college, or university of the State without disclosing individual identifying information of the persons who pose the clear and present danger to themselves or others. Provides that if the person who poses the clear and present danger is reported by home ad-

dress and the person attends a school, college, or university, then the compilation shall only include that individual once in the report for the total annual compilation.

House Committee Amendment No. 1 Deletes reference to: 405 ILCS 5/6-103.3 Adds reference to: New Act Replaces everything after the enacting clause. Creates the Cancer Clinical Trial Participation Program Act. Presents the findings of the General Assembly. Provides that an independent third-party organization may develop and implement a cancer clinical trial participation program to provide reimbursement to subjects for ancillary costs associated with participation in a cancer clinical trial. Requires the program to collaborate with physicians, health care providers, and cancer clinical trial sponsors to notify a prospective subject about the program, reimburse subjects based on financial need, and provide reimbursement for ancillary costs. Provides that an organization administering the program shall provide written notice to prospective subjects of the requirements. Provides that reimbursement under the program at a trial site that conducts cancer clinical trials must be reviewed and approved by the institutional review board associated with the cancer clinical trial for which the reimbursement is provided and that an organization operating the program is not required to obtain approval from an institutional review board on the financial eligibility of a subject who is medically eligible for the program. Requires an organization operating the program to provide subjects with specified written notice.

Provides that reimbursement to a subject of ancillary costs under the program does not constitute an undue inducement to participate in a cancer clinical trial and is not considered coercion or the exertion of undue influence to participate in a cancer clinical trial. Allows an organization that administers the program to accept gifts, grants, and donations from any public or private source to implement the Act. Effective immediately.

STATUS SB2104 Completed Legislative Action Spectrum: Partisan Bill (Democrat 7-0) Status: Passed on December 20 2019 - 100% progression Action: 2019-12-20 - Public Act . . . . . . . . . 101-0621 Statutes Amended In Order of Appearance 215 ILCS 5/155.29 from Ch. 73, par. 767.29 815 ILCS 308/15 continued on page 30

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December 2019

Monthly Case Report

Editor’s Note: Monthly Case Report is a new feature of The Docket, provided by 19th Judicial Circuit Law Librarian, Emanuel Zoberman.

ILLINOIS SUPREME COURT – CIVIL McIntosh v. Walgreens Boots Alliance, Inc., Supreme Court of Illinois. June 20, 2019. 2019 IL 123626, 135 N.E.3d 73, 434 Ill.Dec. 189 Background: Customer brought class action against retailer alleging violation of Consumer Fraud and Deceptive Practices Act by unlawfully collecting city’s bottled water tax on retail sales of beverages that were exempt from the tax. The Circuit Court, Cook County, Diane J. Larsen, J., dismissed. Customer appealed. The Appellate Court, 424 Ill.Dec. 633, 109 N.E.3d 747, reversed and remanded. Retailer appealed.

Holdings: The Supreme Court, Neville, J., held that: 1 statutory consumer fraud claims are not categorically exempt from the voluntary payment doctrine, overruling Nava v. Sears, Roebuck & Co., 374 Ill.Dec. 164, 995 N.E.2d 303 and Ramirez v. Smart Corp., 371 Ill.App.3d 797, 309 Ill.Dec. 168, 863 N.E.2d 800, and 2 the fraud exception to voluntary payment doctrine did not apply.

Appellate court judgment reversed; circuit court judgment affirmed.

Kilbride, J., filed a dissenting opinion.

County of Will v. Pollution Control Board, Supreme Court of Illinois. June 20, 2019. 2019 IL 122798, 135 N.E.3d 49, 434 Ill.Dec. 1 Background: State and county petitioned for review of Pollution Control Board’s order determining that back-end groundwater monitoring regulations were unnecessary with respect to clean construction or demolition debris (CCDD) and uncontaminated soil fill operations. The Appellate Court, 2017 WL 4021816, affirmed. State and county appealed.

Holdings: The Supreme Court, Theis, J., held that: 1 Board’s decision was not arbitrary and capricious for reiterating that CCDD and uncontaminated soil were not waste; 2 Board adequately considered the costs of groundwater monitoring; 3 Board’s decision was not arbitrary and capricious for fail-

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ing to consider the hazards of older and noncompliant fill; and 4 Board’s explanation was not counter to the evidence or implausible.

Affirmed.

Kilbride, J., filed a dissenting opinion.

Roberts v. Board of Trustees of Community College District No. 508, Supreme Court of Illinois. May 23, 2019. 2019 IL 123594, 135, N.E.3d 891, 434 Ill.Dec. 309 Background: Former employee of community college brought action alleging common law retaliatory discharge, violations of the Whistleblower Act, and wrongful termination. The Circuit Court, Cook County, No. 15 L 9430, James Snyder, J., dismissed claims for retaliatory discharge and Whistleblower Act violations with prejudice. Former employee appealed. The Appellate Court, First Division, 105 N.E.3d 923, 423 Ill.Dec. 515, affirmed in part and reversed in part. Parties filed petitions for review.

Holdings: The Supreme Court, Karmeier, C.J., held that: 1 employee’s objections to hiring of allegedly unqualified instructors could not form basis of claim of retaliatory discharge, and 2 employee failed to plead claim under Whistleblower Act. Appellate Court judgment affirmed in part and reversed in part; circuit court judgment affirmed; remanded.

Doe v. Coe, Supreme Court of Illinois. May 23, 2019.

2019 IL 123521, 135 N.E.3d 1, 434 Ill.Dec. 117 Background: Parents of minor church member brought action, both individually and on behalf member against church, pastor, director of youth ministries, and other entities asserting claims for negligent hiring, supervision, and retention of director, and willful and wanton conduct, arising out of director’s sexual assault of member. The Circuit Court, Kane County, James R. Murphy, J., dismissed complaint with prejudice. Parents appealed. The Appellate Court, 83 N.E.3d 612, reversed and remanded. On remand, the Circuit Court dismissed claims against church and pas-

tor. Parents appealed. The Appellate Court, 103 N.E.3d 436, affirmed in part, and reversed in part, reinstating certain claims. Church and pastor petitioned for leave to appeal.

Holdings: The Supreme Court, Garman, J., held that: 1 trial court did not err in striking from amended complaint allegations that were irrelevant to claims against church and pastor; 2 church’s “Safe Church Policy,” together with other policies or measures undertaken by church relating to inappropriate conduct by church officials, did not create any duties beyond that already imposed by law; 3 defendants owed minor church member duty to act reasonably in hiring and retaining church employees, for purpose of claims for negligent supervision; 4 parents’ allegations were sufficient to state claim for negligent hiring; 5 cause of action for negligent supervision was separate and distinct from one for negligent retention; abrogating Helfers-Beitz v. Degelman, 406 Ill. App. 3d 264, 345 Ill. Dec. 907, 939 N.E.2d 1087, Zahl v. Krupa, 399 Ill. App. 3d 993, 339 Ill.Dec. 721, 927 N.E.2d 262, and Platson v. NSM, America, Inc., 322 Ill. App. 3d 138, 255 Ill.Dec. 208, 748 N.E.2d 1278; 6 as matter of first impression, claim for negligent supervision did not require proof that defendants had prior notice of director’s unfitness at time or hiring, specifically, director’s sexual interest in children; 7 parents’ allegations stated claim for negligent supervision; 8 parents’ allegations stated claim for negligent retention; and 9 to extent that willful and wanton conduct claims overlapped with claims for negligent hiring, negligent supervision, and negligent retention, willful and wanton conduct claims also were sufficient to survive dismissal on pleadings.

Affirmed in part; reversed in part; remanded.

See also 2017 IL App. 2d. 160875, 416 Ill.Dec. 114, 83 N.E.3d 612 ILLINOIS SUPREME COURT – CRIMINAL People v. Clark, Supreme Court of Illinois. June 6, 2019. 2019 IL 122891, 135 N.E.3d 21, 434 Ill.Dec. 137 Background: Defendant was convicted following stipulated bench trial in the Circuit Court, 14th Judicial Circuit, Whiteside County, Stanley B. Steines, J., of escape after she failed to report to jail after her discharge from halfway house, in violation of condition of temporary recognizance bond. Defendant appealed. The Appellate Court, 90 N.E.3d 474, 418 Ill.Dec. 316, reversed, based on determination that defendant was not in custody at time she failed to

report to jail. State’s petition for appeal was allowed.

Holdings: The Supreme Court, Neville, J., held that: 1 “custody” was not element of escape based on defendant’s knowing failure to report to penal institution, abrogating People v. Campa, 217 Ill. 2d 243, 298 Ill.Dec. 722, 840 N.E.2d 1157, and 2 prosecutor had exclusive discretion to charge defendant with either crime of escape or with violation of bail bond by forfeiture of bond and failure to report for 30 days, based on same conduct.

Judgment of Appellate Court reversed; judgment of Circuit Court affirmed.

Burke, J., filed dissenting opinion in which Karmeier, C.J., and Theis, J., joined.

ILLINOIS SECOND APPELLATE – CIVIL Walker v. Bruscato, Appellate Court of Illinois, Second District. July 30, 2019. 2019 IL App (2d) 170775, 134 N.E.3d 971, 434 Ill.Dec. 85 Background: Pro se petitioner filed a complaint for declaratory and injunctive relief under the Freedom of Information Act (FOIA) against county state’s attorney in his official capacity, alleging that he had failed to provide him with certain documents he requested. Petitioner’s attorney then filed amended complaint adding that the violations of FOIA were done willfully and intentionally, or otherwise in bad faith. County state’s attorney moved for summary judgment.

Petitioner cross moved for summary judgment. The Circuit Court, Winnebago County, J. Edward Prochaska, J., granted summary judgment in favor of county state’s attorney.

Petitioner appealed.

Holdings: The Appellate Court, McLaren, J., held that: 1 petitioner was provided with the copy of his grand-jury transcript he had requested; 2 doctrine of collateral estoppel barred petitioner’s lawsuit against county state’s attorney for failure to provide him with the copy of his grand-jury transcript he requested; 3 order in prior FOIA case brought by petitioner did not collaterally estop county state’s attorney from claiming that he provided petitioner copy of the transcript of his grand-jury hearing; 4 county state’s attorney did not violate FOIA by failing to maintain a current or previous list of records available to petitioner under the FOIA; 5 itinerary record and sheet of indictment presented to grand jury were matters occurring before the grand jury and, thus, fell within scope of FOIA exemption for matters exempted from disclosure by other statutes and continued on page 20

February 2020

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Access to Justice in Lake County

A

BY JUDGE ELIZABETH M. ROCHFORD

n undeniable trend has revealed itself: litigants in civil cases are representing themselves. The preferred terminology is “Self-Represented Litigant” or “SRL”, formerly known to us as “Pro Se”. But, by any name, statistics reveal that one-half of all new family cases are filed by an SRL, and in nearly 38 percent of cases, both sides are self-represented.

This volume of civil legal matters without attorney assistance has impacted the courts in a variety of ways.

For Judges, these cases create a demand on time that isn’t always available in the context of a busy court call, and in an effort to advance a case, a judge walks a fine line between providing reasonable assistance, and giving the appearance of providing legal advice to a party without counsel. For attorneys, and represented litigants, SRLs can dramatically slow a court call, which results in increases in court time, and translates to the burden of higher costs. And for Hon. Elizabeth SRLs, especially those in family cases, M. Rochford the stakes are high. Family litigants is a past president of the find themselves in court, with everyLCBA, and an thing they value most at risk. SRLs associate judge are often scared, angry, faced with the in the Ninechallenge of navigating an unfamiliar teenth Judicial legal system in language that is diffiCircuit, currently sitting cult to understand, and the experience in Probate. is typically overwhelming.

None of this is unique to Lake

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County. These same challenges are being faced in courthouses across our state and country. The Illinois Supreme Court took notice, and action, by creating the Access to Justice Commission, and charged it with this mandate: to promote, facilitate, and enhance equal access to justice with an emphasis on Illinois civil courts for all people, particularly the poor and vulnerable.

Lake County Courts enthusiastically embraced the concept, and began efforts to translate the worthy intangible into a practical reality.

An exhaustive study to identify successes in access to justice was launched by a committee under the leadership of our current Chief Judge Diane Winter. The initial investigation was undertaken primarily by Principal Staff Attorney Beth Bogie, and spanned jurisdictions in Alaska, Colorado, New York and California,

to name a few. The national research was supplemented locally: with visits to DuPage County, the first to have a dedicated SRL courtroom; and to our neighboring McHenry County, where the first Illinois early resolution program was established. Lake County modified, expanded, and improved all that was learned, to create a model of its own, which is currently boasted of as the most aggressive, and comprehensive approach to access to justice in Illinois.

A highlight of changes implemented in Lake County include as follows: 1. A dedicated SRL courtroom was established in C107, in November, 2018.

The courtroom was intentionally located adjacent to the clerk’s office and library, and purposely staffed with experienced personnel. The SRL court judge provides an oral and written overview of procedures in the courtroom, and signage is prominently displayed to identify staff, and to provide procedural guidance.

2. A commitment has been made to use plain and understandable language.

3. A financial grant was secured from the Administrative Office of the Illinois Courts (AOIC), for the purpose of purchasing equipment for the courtroom, including computers and printers, and for legal assistance through Prairie State Legal Services (PSLS).

4. An Early Resolution Program (ERP) was created to identify and process cases that are appropriate for efficient resolution.

5. The Center for Self-Representation website was updated: content increased; terms simplified; and quick links added for FAQs, forms, procedures, and tips for court.

6. The court established partnerships and built communication bridges with the Lake County Bar Association (LCBA) Family Law Committee to have experienced volunteers provide mediation services weekly; our Justice Corps Fellows, first Lauren Spungen (now a University of Chicago Law Student), and currently Kattia Gramajo (a future law student); interns; and library staff, to assist SRLs in navigating the physical courthouse, in addition to forms and legal process.

7. The courthouse library computers were linked directly to the Department of Healthcare and Family Services (DHFS) for ease in calculating child support, and to the Clerk’s office for access to all court forms.

8. The court coordinated with the language interpreters to insure available services in the courtroom, for mediations, and throughout the courthouse.

9. A You Tube video regarding courthouse procedures and a Lake County Public TV segment introducing

our Justice Corps Fellow were produced, and are currently being aired. Several more video productions are in process.

10. An existing grant for mediation services for unmarried parents, which had been substantially underutilized, has been reorganized, and now maximized to its full benefit.

As the first Lake County judge to have had the privilege to be assigned to the SRL courtroom, I can say from my personal perspective that the enthusiasm of the Lake County judiciary and the courthouse partners in responding to the Supreme Court mandate has been extraordinary. And as hoped, the demystification and uncluttering of the legal process for SRLs has had meaningful effect.

But, if there is one thing that I had substantially underestimated, it is the compelling human component of working with SRLs. For most people, a trip to the courthouse creates cause for anxiety. But, for an individual who enters the court system without a professional advocate, guidance, or financial resources, the stakes are even higher. I didn’t fully understand the difficulties an SRL faces, until I took an opportunity to walk in an SRL’s shoes, attempting to accomplish the specific tasks the court regularly directs.

Only then, could I begin to imagine the added complications of public transportation, a language barrier, a wheel chair, having young children in tow, no pay from a lost day of work, or the prospect of termination of employment for one more missed day.

It was humbling.

From my view on the bench, I watched people enter the SRL courtroom every day, predominantly cloaked in anger and fear. As a result of this initiative, they are met with an experience that is wonderfully unexpected, and includes; patient and helpful treatment from staff; the offer of free resources; generous professional services from volunteer attorneys, and mediators; and the benefit of judge’s time. For families in crisis, one case at a time, this approach changes everything for the better.

This commentary is not intended to leave a false impression that every litigant leaves happy, or that all family problems are solved, they are not. But, on a very regular basis, the impact of these additional resources is real, and the benefit to the entirety of our community is significant.

The progress continues. Exciting and recent updates are as follows: First, the SRL call is currently in the capable hands of Judge Veronica O’Malley who has extensive judicial experience in family law, domestic violence, and criminal law, and who demonstrates incomparable enthusiasm

Despite all the achievement, there is still much work to be done.

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and commitment to serving SRLs; Second, the Lake County Board has recently approved funding for a new staff position of “SRL coordinator,” to assist in expanding and administering all Lake County Access to Justice initiatives among the civil courts. Optimistically, the new position will be filled by the time this article is published; Third, space is being cleared, and construction is underway for an Access to Justice Center in our courthouse law library, where SRLs can access forms and information, use computers and e-file; Fourth, Lake County has established a statewide presence on several AOIC committees, and is providing

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a model and practical guidance for counties across the state, as each makes the effort to comply with the Supreme Court’s ambitious mandate; and Finally, the SRL courtroom team proudly accepted the LCBA’s 2019 Access to Justice Award.

Despite all the achievement, there is still much work to be done. These principles in justice, and methods at providing access, are ripe to be expanded in our family courts and in other civil courtrooms, for all people in Lake County, and most especially for those who are poor and vulnerable. But, in this regard, be proud that Lake County is at the forefront, and be heartened, as our future is bright.

WELCOME

SCOTT J. FARRELL Scott J. Farrell received his Juris Doctor, M.B.A. and B.S from DePaul University.

Scott’s legal career has focused on family law and matrimonial issues. Scott’s experience includes allocation of parenting responsibilities, maintenance, child support, financial issues, business valuations and collaborative divorce. In addition to his legal experience, Scott has also held financial and strategic positions with Sysco Foods, Viad, McDonald’s, and GMAC.

BE SMART. BE STRATEGIC. BE SUCCESSFUL. Strategic Legal Counsel When You Need It Most.

Our attorneys provide strategic planning counsel for divorce, child custody disputes and more.

900 N. Shore Dr., Suite 220 Lake Bluff, IL 60044 Office: 847-234-4445 Fax: 847-234-4449 info@strategicdivorce.com www.strategicdivorce.com

February 2020

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The Payment of Attorneys’ Fees by Third Parties

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BY HON. RAYMOND J. MCKOSKI (RET.)

lient loyalty and confidentiality are hallmarks of the attorney-client relationship.

Loyalty requires that an attorney advance a client’s interests regardless of the personal interests of the lawyer or the interests of any other person or entity.1 Confidentiality demands that a lawyer “not reveal information relating to the representation of a client unless the client gives informed consent.”2 Payment by a third party of a client’s attorney’s fees raises both loyalty and confidentiality concerns.

12

Occasions when someone other than the client pays an attorney are not uncommon. Unions, insurance companies, litigation financing companies, parents, adult children, and friends often pay a lawyer to represent a client in tort, criminal, family law, and estate planning matters.3 At least one state ethics committee has advised that a lawyer’s fee may be paid with funds raised through an internet crowdfunding 1 2 3

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Ill. Rules of Prof’l Conduct R. 1.7 cmt. [1].

Id. R. 1.6(a).

This article serves as a brief review of Rule 1.8(f) of the Illinois Rules of Professional Conduct. It does not examine application of the Rule to specialized situations such as insurance defense relationships or a lawyer’s acceptance of cryptocurrency as payment for legal services. For a discussion of the ethical considerations in accepting cryptocurrency, see Nebraska Ethics Advisory Opinion for Lawyers No. 1703 (2017).

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Retired Judge Ray McKoski is an adjunct professor at the UIC John Marshall Law School.

platform.4 To help protect the attorney-client relationship in third-party payor situations, the Illinois Supreme Court enacted Rule 1.8(f) of the Illinois Rules of Professional Conduct (Illinois Rules).5 Rule 1.8(f) precludes a lawyer from accepting compensation from someone other than a client unless three conditions are met. Rule 1.8(f) provides: A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client gives informed consent; 4 Philadelphia Bar Assoc. Prof’l Guidance Comm. Op. 2015-6 (2015).

5 Ill. Rules of Prof’l Conduct R. 1.8(f); see also Restatement (Third) of the Law Governing Lawyers § 134 cmt. (a) (2000) (recognizing the potential adverse impact on the representation of a client when a non-client pays the lawyer).

(2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 1.6.

INFORMED CONSENT As defined in Rule 1.0(e) of the Illinois Rules, informed consent “denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” Important considerations arise when applying this definition to third-party payment situations. First, the nature of the information conveyed to obtain informed consent depends to some extent on the relationship between the client and the payor.

For example, it is generally necessary for a lawyer to provide more detail when the party paying fees for the client is also a litigant in the case or otherwise has a direct financial interest in the outcome of the matter. Even when the payor has no direct interest in the matter, however, Rule 1.0(e) requires that the client be informed of the circumstances and conditions under which the third party has agreed to underwrite the representation, substantial risks to the client created by the agreement, and alternatives to accepting the third-party payment.6 Second, the lawyer has a duty to obtain informed consent not only from the client but also from the funder.7 Since a third party frequently has interests inconsistent with those of the client, including interests in minimizing the fee, a lawyer must ensure that both the client and funder understand and accept the lawyer’s obligations under Rule 1.8(f).8

an undivided duty of loyalty to the client and has absolutely no duty to the client’s benefactor. The lawyer should further explain that the client makes the decisions regarding the objects of the representation.9 All involved must consent to the relationship as defined by Rule 1.8(f) before the lawyer accepts payment. Specifically defining the parameters of the three-party relationship also helps prevent the client from making unwarranted assumptions. For instance, without a complete explanation of the lawyer’s duties, a client could assume that the payor’s presence at the initial interview indicates that the payor holds a special position in the relationship or might even be a co-client.10 Also, identifying the client will assist the lawyer in determining whose presence at meetings might jeopardize the confidentiality of the communications between lawyer and client.

Specifically defining the parameters of the three-party relationship also helps prevent the client from making unwarranted assumptions.

INTERFERENCE WITH THE ATTORNEY-CLIENT RELATIONSHIP Some third-party payors assume that their financial largesse allows them to control, or at least participate in, decisions concerning the client’s representation. To comply with Rule 1.8(f), the lawyer must disabuse the financier of that belief and explain that the lawyer owes 6 7 8

See Restatement (Third) of the Law Governing Lawyers § 134 cmt. (b) (2000).

See Ill. Rules of Prof’l Conduct R. 1.0 cmt. [6].

See id.

INFORMATION RELATING TO THE REPRESENTATION To obtain informed consent to a third-party payment arrangement, the client and the person compensating the lawyer must understand the scope of the information.

Persons paying the freight also frequently feel entitled to information concerning the client’s representation including how the money is being spent. But under Rule 1.6, “[a] lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.”11 While Rule 1.6 is titled, “Confidentiality of Information,” the Rule protects all information related to the case from disclosure by the lawyer whether or not the information is secret or supplied in confidence. Thus, the prohibition against disclosure includes public information and information gained from sources other than the client.12 Rule 1.6’s bar against revealing information relat9 See id. R. 1.2 10 See N.Y. State Bar Assoc. Comm. on Prof’l Ethics Op. 1063 (2015).

11 Rule 1.6(a) provides: “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b) or required by paragraph (c).” Paragraph (b) provides for discretionary disclosures, for example to “prevent the client from committing fraud that is reasonably certain to result in substantial injury.” Ill. Rules of Prof’l Conduct R. 1.6(a) (2). Paragraph (c) mandates disclosure “to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm.” Id. R. 1.5(c).

12 Ill. Rules of Prof’l Conduct R. 1.6 cmt. [2].

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ed to the representation is far broader than the narrower category of information protected by the attorney-client and work product privileges protected by Rule 1.6.13 In addition, the lawyer must scrupulously observe the confidentiality requirement unless the client gives informed consent to provide specific information to the payor. The opposite, however, is not true. Unless agreed otherwise, the lawyer must disclosure to the client all discussions between the lawyer and payor.

CONCLUSION “Simply put, Rule 1.8(f) means that a lawyer owes a 13 See Annette Corrigana & Mark Schmidt, Privilege and the Transactional Lawyer: An Examination of the Common Interest Doctrine, theCrime-Fraud Exception and Their Impact on Transactional Practice, 31 DCBA Brief 8, 9 (June 2019).

Legislation of Interest Report continued from page 13

rules; and 6 individual deliberations and votes of grand jurors for indictments against petitioner were barred from disclosure under FOIA exemption for documents protected by other statutes or rules.

Affirmed.

In re County Treasurer, Appellate Court of Illinois, Second District. July 24, 2019. 2019 IL App (2d) 180727, 134 N.E.3d 958, 434 Ill.Dec. 7 Background: Purchaser of property at tax sale filed petition for issuance of tax deed and finding of sale in error. The Circuit Court, Lake County, Michael B. Betar, J., granted petition. County treasurer appealed.

Holdings: The Appellate Court, Hutchinson, J., held that: 1 purchaser of property at tax sale was not entitled to sale in error, and 2 water sanitation district was not municipality that could be incorporated into municipal-lien provision of statute providing for sale in error remedy.

Reversed and remanded.

Dynak v. Board of Education of Wood Dale School District 7, Appellate Court of Illinois, Second District.

June 12, 2019. 2019 IL App (2d) 180551, 135 N.E.3d 87, 434 Ill.Dec. 203 Background: Teacher brought action against school board for, inter alia, declaratory judgment that she was allowed to

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client the same duties owed to a client without regard to the source of the fees the lawyer is paid, with the added proviso that a client must give ‘informed consent’ to the arrangement.”14 To obtain informed consent, the lawyer must explain (1) the loyalty and confidentiality requirements of an attorney-client relationship, (2) all terms of the financial agreement, (3) substantial risks to the client created by the financial arrangement, and (4) alternatives to accepting the payment. It may be advantageous to include some of this information in a retainer agreement or other writing, though Rule 1.8(f) does not require that informed consent in the third-party payment situation be in writing or confirmed in writing.

14 N.Y. State Bar Assoc. Comm. on Prof’l Ethics Op. 1000 (2014).

use paid sick leave for the birth of her child, even though she gave birth at beginning of summer break and the leave would occur after summer break, and for attorney fees under Attorneys Fees in Wage Actions Act. School board moved for summary judgment, and teacher cross moved for summary judgment. The Circuit Court, Du Page County, No. 16-MR-1368, Bonnie M. Wheaton, J., granted school board’s motion and denied teacher’s cross motion. Teacher appealed.

Holding: The Appellate Court, Birkett, P.J., held that under the statute governing sick leave for public-school employees, a “leave period” comprises only work days.

Affirmed.

Hudson, J., filed dissenting opinion.

ILLINOIS SECOND APPELLATE – CRIMINAL People v. Allgood, Appellate Court of Illinois, Second District. July 10, 2019. 2019 IL App (2d) 160810, 134 N.E.3d 953, 434 Ill.Dec. 67 Background: Defendant convicted of aggravated criminal sexual assault while armed with a firearm, and aggravated kidnapping while armed with a firearm, filed post-conviction petition challenged 15-year sentencing enhancements. Following remand from Court of Appeals, 2015 WL 2451848, the Circuit Court, De Kalb County. Robbin J. Stuckert, J., resentenced defendant. Defendant appealed.

Holding: The Appellate Court, Birkett, J., held that defendant was entitled to resentencing under statutes as they existed prior to enactment of statute providing for sentencing enhancements.

Affirmed in part, vacated in part, and remanded.

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Who Gets What? Avoiding Pitfalls in MSA Drafting for Dividing Retirement Assets

F

BY SARAH KAHN, ESQ.

amily law attorneys can see firsthand how stressful and trying the divorce process can be for their clients. By the time the parties reach the prove-up, they are ready to be done and move on with their lives.

However, depending on the marital assets being divided by the parties’ marital settlement agreement (“MSA”), the prove-up, strictly speaking, may not be the finish line. Depending on the parties’ retirement assets and the language of their MSA, they may require Qualified Domestic Relations Orders (“QDROs”) or Qualified Illinois Domestic Relations Orders (“QILDROs”) to fully effectuate the division of their marital property and fully disentangle themselves from each other financially. Depending on how Sarah Kahn the MSA was drafted, it may open the is an assodoor for potential additional litigation ciate with if the language is not absolutely clear Curtin Law, regarding all aspects of the retirement LLC. Before changing assets being divided. her focus Why are QDROs even required in to the the first place? QDROs are required to division of divide retirement plans which fall unretirement der the Employee Retirement Income assets after divorce, she Security Act (“ERISA”).1 Before 1974, practiced pensions were largely unregulated by family law.

1

29 U.S.C. 18

22 The Docket

the federal government which led to employees being left in the dark about their pension rights, and to situations where employers could strip their employees of their pensions for any reason they saw fit. This led to the enactment of ERISA which governs the design, creation, and operation of all private sector pension and benefit plans. Today, almost every private employee benefit plan in the country is an “ERISA-qualified” plan.2 After its enactment, however, ERISA caused confusion due to its requirement that the benefits under its plans cannot be assigned or alienated.3 This created an apparent conflict in divorce cases where retirement benefits had been accrued during the marriage, and consequently, courts had to grapple with the question of whether or not 2 Carrad, David Clayton. The Complete QDRO Handbook: Dividing ERISA, Military, and Civil Service Pensions and Collecting Child Support from Employee Benefit Plans. Third Edition. 1-2. (2009).

3 29 U.S.C. § 1056(d)(1)

they could divide benefits under ERISA pursuant to divorce judgments.4 In response to this uncertainty, in 1984 Congress passed the Retirement Equity Act (REA)5, which amended ERISA to provide that certain orders entered in state domestic relations cases relating to the provision of child support, maintenance, or marital property rights must be accepted and honored by benefit plans falling under ERISA (also known as “qualified plans”).6 These orders are what we know as QDROs. The two most common types of retirement plans divided by QDROs are defined contribution plans and defined benefit plans. Defined contribution plans are plans which provide an individual account for each participant, and benefits are based solely upon the amount contributed to that participant’s account, and any income, expenses, gains and losses thereon.7 Falling under this definition are assets such as 401k plans, profit-sharing plans, stock bonus plans, and employee stock ownership plans. Defined benefit plans, on the other hand, are any plans which are not defined contribution plans.8 These are what the average person would call a “pension plan,” which usually promise monthly payments upon retirement calculated by a formula using the number of years the employee worked for the employer offering the plan, the employee’s age at retirement, and the employee’s salary.9 Inherently, a QDRO relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child, or other dependent of a participant, and is made pursuant to state domestic relations laws.10 Usually, the Judgment for Dissolution or other court order (for example, an order providing that a child support arrearage is to be paid via a QDRO on a party’s 401k plan) dividing retirement assets has already been entered by the time QDROs are being drafted, and a QDRO must conform to the judgment or order and can only allocate retirement benefits as provided for in those documents. This can potentially create issues where the MSA language isn’t clear or didn’t address certain aspects

of the retirement benefits being divided.

For example, a provision merely stating that “Wife shall receive 50% of the Husband’s pension” could invite problems – is this 50% of the marital portion of the pension? What about early retirement subsidies? There are more issues to unpack than just these. Similarly, a provision stating only that “Husband shall receive 50% of the Wife’s 401k” leaves open its own questions – as of what date? What if there is was loan taken against the 401k? There are more elements to dividing a pension interest than the monthly benefit, and more elements to dividing a 401k than the dollar amount sitting in the account. Knowing a bit more about these points can help you ensure that your MSA language will smooth the QDRO process for your clients and avoid misunderstandings or additional litigation on these issues.

When drafting MSA language to divide a defined contribution plan such as a 401k, the first step is to create a clear division. Be clear about who owns the account (“participant”), and what portion of it is assigned to the other party (“alternate payee”). This can be either a dollar figure or a percentage.

However, if a percentage of the account is being awarded, be sure to specify whether it’s a percentage of the “marital portion” or merely a percentage of the total account balance. Where one party began contributing to a defined contribution plan prior to the marriage, the non-marital portion of the account, as well as interest and market gains and losses thereon, can be calculated, provided that all monthly statements for the account are available.11 However, several other points need to be addressed as well.

Second, the MSA needs to create a clear assignment date – the date on which the alternate payee is awarded their respective portion of the account. This can either be as of the date of the entry of the judgment, or some other date negotiated by the parties (for example, the date the parties separated). Third, it should specifically address whether or not the alternate payee’s assigned share of the account will be entitled to interest and market gains and losses. Even if QDROs were entered on the same day as the Judgment for Dissolution, some amount of time will pass between the assignment date and the date when the

There are more elements to dividing a pension interest than the monthly benefit, and more elements to dividing a 401k than the dollar amount sitting in the account.

4 5 6 7 8 9 10

Carrad, 2.

P.L. 98-397 (1984).

Carrad, 4.

29 U.S.C. § 1002(34).

29 U.S.C. § 1002(35).

Carrad, 16-17.

26 U.S.C. § 414(p)

11 If all statements are not available, the parties can also agree to a dollar figure which represents the premarital portion of the account.

February 2020

23

alternate payee’s portion of the account is segregated for them. During that time, that portion of the account may be earning interest and fluctuating in the market. This is why having a clear assignment date as well as definite language for whether the alternate payee is entitled to interest and market gains and losses is so important – an award of 50% of the balance of a 401k account as of the date of divorce may be significantly different than 50% of the same account by the date the account is actually divided depending on how the market performed during the intervening period.

A couple of additional points to address when drafting language to divide a defined contribution plan are how any loans taken against the account will be treated, as well as how delayed contributions will be treated. When awarding a percentage share of the vested balance of a 401k account which has a loan taken against it, the actual dollar amount your client will receive will be different depending on whether the loan is added or subtracted from the account to determine its balance. For example, let’s say you are drafting MSA language to divide a 401k account which has a vested balance of $100,000 and a loan of $50,000 taken against it as of the date of divorce. You want to divide the account on an equal basis, 50/50. If your MSA language provides that the loan shall be subtracted from the account to determine its total balance, the account

balance would be $100,000, and your client’s share would be $50,000. However, if your MSA language provides that the loan should be added back to the account to determine its total balance, the account balance would be $150,000, and your client’s share would be $75,000.12 Also, some employers may make delayed contributions or once-yearly contributions to the accounts of their employees for work performed during an earlier time period. If the parties were divorced on December 30, 2019, and the participant of a defined contribution plan receives a contribution on December 31, 2019 for work performed during the 2019 calendar year (and, consequently, during the marriage), the alternate payee should receive a pro rata share of that contribution. You should consider addressing this in your MSA language as well.

All of these points can be seen in this paragraph of sample MSA language, which succinctly addresses all of these considerations: The Petitioner is a participant in [Name of the Retirement Plan]. The Respondent is granted [%, $, or % of marital portion] of Petitioner’s interest as of [date], [including/not including] any interest or investment gains or losses. Any loans as of the assignment date shall be [added/subtracted from] the Petitioner’s account to determine the total account balance. Any contributions made after the date of dissolution that are attributable to work performed prior to the date of dissolution [shall or shall not] be divided pro rata.

There are just as many considerations when drafting precise MSA language to divide an interest in a defined benefit plan (pension). As with defined contribution plans, the first step is to create a clear division. The MSA must clearly assign a clear dollar amount of monthly benefits, or percentage – and, if using a percentage, must clearly specify whether the designated percentage applies to the entire benefit or just to the marital portion of the benefit. Beyond the monthly benefit itself, there are other aspects of pension benefits that should be addressed.

For example, some pensioners will receive Cost-of-Living Adjustments (COLAs) to their pension benefit, which provide an increase in their monthly payout. It is best practice to include specific language on whether the alternate payee will receive a proportionate share of COLAs. There are also Early Retirement Subsidies – supplemental payments provided by an employer to encourage early retirement.13 This is done by the employer “making up” the difference between what the retiree would receive as their monthly benefit at an age when they can take 12 If the loan is subtracted (not included) to determine the total account balance, the total account balance would be $100,000.

If the loan is added back to determine the total account balance, the total account balance would be $150,000.

13 Carrad, 77.

24 The Docket

2019

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early retirement versus what they would receive at normal retirement age.14 If your MSA is silent as to this issue, it may create a situation in which the alternate payee does not receive a proportionate share of this subsidy, and the participant consequently receives a windfall.

Further considerations for MSA language regarding the division of pensions include Pre-Retirement Survivor Annuities and Post-Retirement Survivor Annuities. The former is a benefit that may become payable to a beneficiary if a participant dies before he or she actually retires and begins to collect pension benefits.15 The latter is a benefit that may become payable to a beneficiary after a participant dies while already collecting pension benefits.16 Your MSA should specify whether the alternate payee will be treated as the surviving spouse of the participant for purposes of these benefits.

Again, consider this paragraph of sample MSA language which succinctly addresses these considerations regarding the division of pensions: The Petitioner is a participant in [Name of the Retirement Plan]. The Respondent is granted [%, or $, or % of the marital portion] of Petitioner’s benefit in the plan as of the date of entry of the Judgment for Dissolution of Marriage. The Respondent is [entitled/not entitled] to a pro rata share of any cost of living adjustments or other economic improvements subsequent to the benefit commencement date. The Respondent is [entitled/not entitled] to a pro rata share of any Death Benefit, Early Retirement Subsidy or Supplement, Preretirement Survivor Benefits, and Post-Retirement Survivor Benefits.

14 Id. (In terms of actuarial value rather than a dollar value – an employee taking early retirement will receive a smaller monthly benefit due to the fact that the pension will be paying them for a longer period of time simply based on the actuarial fact that they are a younger age than they would be at normal retirement age).

15 Id. at 71.

16 Id. at 70-71.

Some additional MSA language considerations are also beneficial regardless of what type of retirement assets are being divided between the parties. Consider including a provision stating that the parties have made a full disclosure of all of their retirement accounts and assets, as well as providing that the division of same will be done by means of a QDRO, other court order, or other document as necessary. It is also helpful to include language specifying which party is responsible for having the QDROs or other orders/documents effectuating the division of the retirement accounts prepared, and language providing how any associated costs will be split between the parties. It is important to include language that both parties are required to sign any and all consent forms or other documents that might be required in relation to the QDROs or other orders or documents needed to complete the division of retirement assets. If the parties wish to “offset” the value of more than one of their retirement accounts and only transfer money from one account to effectuate the division, the MSA should provide specific language enabling the parties to do so. Otherwise, additional court orders will be required to make the court record clear.

It’s also important to have a clear understanding of what your client’s retirement assets actually are when drafting your Marital Settlement Agreement. Clients often don’t fully understand the nature of the retirement assets in which they have interests and may, for example, refer to something as a “pension” which isn’t actually a pension. Make sure to ask your clients for statements from their retirement plans, and get as much information as possible regarding their retirement assets so that everyone is clear on what exactly is being divided so that your MSA can be drafted with precision.

This is by no means an exhaustive list of all of the considerations one should take into account when dividing retirement assets in divorce. The sample language and considerations discussed by this article apply to traditional defined contribution and defined benefit plans which fall under ERISA. There are many other types of retirement plans which are not covered by the sample language and which have their own unique requirements.

In those situations, it would be best to speak to a retirement specialist and plan administrators before preparing language to divide a different kind of plan.17 These are merely pointers for the most frequent issues that arise with MSA language dividing two of the more common types of retirement benefits that your clients are likely to have interests in. Paying close attention to these issues when drafting your MSA will help protect your client’s interests, as well as help to avoid misunderstandings and future litigation.

17 For example, military retirement benefits, railroad retirement plans, Federal plans, hybrid plans, cash balance plans, IRAs, etc.

26 The Docket

26TH ANNUAL FAMILY LAW CONFERENCE Albuquerque, NM

Thursday, April 23, 2020 

Welcome Reception (5:30 pm - 7:30 pm)

Friday, April 24, 2020  Breakfast (7:00 am - 8:00 am)  4 Hours of CLE (8:00 am - Noon)  Group Activity (Afternoon)  Group Reception (Early Evening) Saturday, April 25, 2020 • Breakfast (7:00am - 8:00 am) • 4 hours of CLE (8:00 am—Noon) • Conference End (Noon)

Hotel Albuquerque April 23-26, 2020

The Hotel: $165/night (by March 27, 2020) Hotel Albuquerque Call: 1-800-237-2133 Provide the Group / Convention Code 2004LAKECO

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REGULAR REGISTRATION (Register & paid by 3/27/20) LCBA Member 8 hours of CLE Non– Member 8 hours of CLE Guests of CLE Attendee, ages 10 and above (includes welcome reception, 2 breakfasts) Friday Afternoon Activities: Best of Albq. Trolley Tour Friday Reception @ High Noon Restaurant & Saloon

# ________$375* per person # ________$499* per person # ________$125* per person # ________$25* per person # ________$35* per person

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# ________$25* per person # ________$35* per person

SEMINAR MATERIALS: (Materials provided electronically to all registrants. Printed materials cost $25) Yes, I would like Hard Copies of my materials for $25: _____ Hard Copy ($25*) Thursday Welcome Reception (Included with registration but RSVP if attending) # ______ (Included but RSVP Required) TOTAL TUITION $______________________ (*Add 4% to total if paying with a credit card)

Name: ____________________________________________________________ ARDC # _____________________ Guest ________________________________________

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27

To Leave Them Be, or not to Leave Them Be … that is the (Legal) Question

S

BY JUDGE ARI FISZ

o let’s say a jury is deliberating. Assume the jury lets the judge know that they want to re-watch a video recording which had been admitted into evidence and played during the trial. Let’s say the judge decides that letting the jury re-watch the video is proper. Then what happens?

Does the judge bring the parties into the courtroom along with the jury and play the video for the jury, after instructing the parties not to communicate with the jury in any way? Does the judge arrange for the jurors to watch the video by themselves in the jury room? What if there’s some kind of technological problem which prevents the jury from being able to watch the video by themselves in the jury room?

If any of this sounds familiar, it Ari Fisz is could be because my colleague, Judge a Associate Charles Johnson (along with co-auJudge in the thor Alex Zagor), wrote about it back 19th Judicial in October of 2018. (See “Netflix and Circuit Court Chill? In the Courtroom?”1) At that in Lake time, there was a split among the County, Illinois Appellate Courts regarding Illinois. He how to handle this situation, with our is currently Second District Appellate Court not assigned in 1

Johnson, Hon. Charles D. and Zagor, Alex, “Netflix and Chill? In the Courtroom?”, The Docket, Vol. 25, No. 10, October, 2018.

28 The Docket

the criminal division.

having had an opportunity to rule on the issue. Well, what a difference a year makes. The split among the Illinois Appellate Courts still exists, but the Second District has spoken - sort of. We’ll get to that in a bit. But let us begin with the Third District Appellate Court and its decision in People v. Hollahan.2 The Hollahan decision came down on June 20, 2019 (after the article by Judge Johnson and Alex Zagor had been published).

This decision changed how the Third District viewed this issue, and it would later be used as an example by the Second District as the correct way to handle the issue. In Hollahan, the trial court responded to a deliberating jury’s request to watch a videotape which had been admitted into evidence, deciding to show the video to the jury in the courtroom since the court did not have the “arrangement” 2 People v. Hollahan, 2019 IL App (3d) 150556 (2019).

necessary to have the jury watch the video in the jury room. The court allowed the defendant, the attorneys on both sides, and two alternate jurors to be in the courtroom while the video played. Before bringing in the jury, the court told the people who had been allowed in the courtroom that “no one will have any conversation” while the jury watched the video.3 Once the jurors were brought in, the court instructed the jury, “[p]lease come in and have a seat, we will not be talking to you other than to get the video, period. The jury has requested to see the video again. We do not have an arrangement to show it to you in your deliberation room. I have instructed everyone to not say a word and we will play the video for you. If you need to have the sound adjusted or anything that we can do, all right?”4 After watching the video, the jury returned to the jury room to continue deliberations. Those actions by the judge in that case certainly don’t seem blatantly unreasonable. That being said, the Third District found the trial court had committed plain error, and it reversed and remanded.

The Third District began its analysis when it stated succinctly: “It is a basic principle of our justice system that jury deliberations shall remain private and secret.”5 The court went on to explain that the reason for this principle is to protect the jurors from improper influence. So the question becomes, did the manner in which the judge allowed the jury to review the video result in an improper influence upon the jury’s deliberations? In other words, did having the jury re-watch the video in court with the judge, the lawyers, and others present impede or inhibit the jurors’ deliberations? The Third District said yes.

The court reasoned that the presence in the courtroom of the judge, the defendant, the prosecutor and the defense attorney during the re-watching of the video “clearly inhibited the jurors’ deliberations and restrained their freedom of expression and action.”6 It is unlikely that any of the jurors would have chosen to discuss their thoughts about the video during the in courtroom viewing, considering the fact that the judge and the parties were present. Furthermore, the court was also concerned about the fact that the jurors did not have the opportunity to control the re-watching of the video. They were apparently not able to pause the video or replay certain portions of it, which “limited their ability to focus sufficiently on the particular portions of the video that gave

them concern.”7 The Hollahan court acknowledged that other Illinois Appellate Courts have disagreed with its finding under similar circumstances, including the Third District itself in an earlier decision (See People v. Lewis, 2019 IL App (4th) 150637-B; People v. Johnson, 2015 IL App (3d) 130610; and People v. Rouse, 2014 IL App (1st) 121462). Those courts relied on the fact that the third parties who were present during the video replay were instructed not to communicate with the jurors while the video was being played, and also that the jury returned to the jury room after the video replay to continue its “private and unfettered deliberations.”8 However, the Hollahan court pointed out that “neither of those facts eliminated or mitigated the prejudicial impact upon deliberations that occurred while the jurors were viewing the video.”9 Great focus was placed on the facts that “the jury was prevented from controlling the video, from freely discussing it, and from debating any issues relating to the video while they were watching it.”10 Another interesting point of disagreement stems from the Fourth District Appellate Court’s thoughts in Lewis that “allowing a deliberating jury to listen to a recording again in the courtroom instead of the jury room avoids problems with equipment and the skills necessary to operate the equipment … and also minimizes the risk of breakage or the erasure of the recording.”11 The Third District in Hollahan disagreed, indicating that it was hard to believe that with the state of user friendly technology nowadays, a trial court could not arrange for a jury to view and/or listen to video or audio evidence in the jury room without having technical difficulties. Therefore, “[I]n our view, if a trial court decides to grant a jury’s request to review audio or video evidence during deliberations, the only acceptable practice is to arrange for the jury to view the evidence at issue in private, preferably by bringing a laptop, tablet, or some similar device into the jury room.”12 The court went on to say that if, for some technological reason, the recording needed to be replayed in the courtroom, then the jury should be allowed to view the recording in private inside the courtroom.

On September 30, 2019, our very own Second District Appellate Court entered the fray with People v. Cavitt, 2019 IL App (2d) 170149. (This case is so recent that at

It is a basic principle of our justice system that jury deliberations shall remain private and secret.

3 4 5 6

Id. at ¶10.

Id. Id. at ¶ 20.

Id. at ¶21.

7 8 9 10 11 12

Id. at ¶22.

Id. at ¶23.

Id. Id. See People v. Lewis, 2019 IL App (4th) 150637-B, ¶97.

Hollahan, ¶27.

February 2020 29

the time of the writing of this article, it has not yet been released for publication, so technically it could still be withdrawn, though unlikely.) In Cavitt, the Second District reversed and remanded a trial court which restricted a deliberating jury to only one silent viewing in open court of a video which had been admitted into evidence, as well as admonishing the deliberating jury to not place too much emphasis on the video. After deciding that the trial court had committed error, the Second District commented on the Third District’s decision in Hollahan: “Although we take no position on its holding, we believe that Hollahan makes a compelling case that courtroom replays in the presence of third parties are, in themselves, inherently prejudicial and inhibit the jury’s deliberations. Although the case before us presents additional circumstances that warrant finding error, we acknowledge that the issues that Hollahan raises—such as the recurrence of technical issues, the distinction between a live trial (where all parties are present) and jury deliberations (which are limited only to jurors), and the

Legislation of Interest Report continued from page 11

815 ILCS 505/2M from Ch. 121 1/2, par. 262M 815 ILCS 505/2Z from Ch. 121 1/2, par. 262Z

Visit the LCBA Website: lakebar.org 30 The Docket

jury’s lack of control over the replay (which, the Hollahan court compellingly argues, inherently inhibits deliberations)—warrant further consideration of the mode and manner in which a jury is given access to evidence in this state. We need not decide whether all courtroom replays in the presence of third parties are inherently prejudicial, because, again, this case presents unique and egregious circumstances.”13 There you have it. It sure sounds like the Second District Appellate Court wants all efforts made to allow a deliberating jury to review video or audio evidence in the privacy of the jury room, or if necessary, in the privacy of the courtroom. So when Judge Johnson’s article asked if it was appropriate for a jury to Netflix and chill (which I’m pretty sure he meant differently than the usual meaning of that euphemism) in the courtroom, subsequent case law tells us that it should be done in private, preferably in the jury room.

13 People v. Cavitt, 2019 IL App (2d) 170149, ¶165.

Synopsis As Introduced Amends the Illinois Insurance Code. Provides that no vehicle repair facility or installer may use repair specifications or procedures that are not in compliance with the original equipment manufacturer for those parts.

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LCBA & NWSBA JOINT REAL ESTATE CONFERENCE 2020 Nashville, TN

SCHEDULE OF

Hotel Indigo Nashville March 5 - 7, 2020

EVENTS: Thursday, March 5, 2020 • Welcome Reception

Friday, March 6, 2020

The Hotel: $224/night+tax (Book by 2/11/20)

• 4 hours of CLE (8:00 am-Noon) • Group Activity or Afternoon on

Call: 877-834-3613 Provide the Group Code: Lake County Bar Association

your own

Saturday, March 7, 2020

• 4 hours of CLE (8:00 am—Noon) • Depart or Afternoon on your own

Register online: www.lakebar.org REGULAR TUITION (paid by 2/1/20) LCBA/NWSBA Member Non– Member

8 hours of CLE# ________$350/member 8 hours of CLE # ________$550/person

Guests of CLE Attendee, ages 10 and above (includes welcome reception, 2 breakfasts) # ________$125/person Friday Reception (Optional) # ________$75/person LATE TUITION (paid after 2/1/20) 8 hours of CLE # ________$450/member LCBA/NWSBA Member 8 hours of CLE # ________$650/person Non– Member Guests of CLE Attendee, ages 10 and above (includes welcome reception, 2 breakfasts) # ________$125/person # ________$75/person Friday: Reception (Optional) SEMINAR MATERIALS: I would like my materials to be: _____ Hard Copy ($25) ____Electronic (included w/tuition) PLEASE RSVP (arrangements only made for those who RSVP and have paid) TOTAL TUITION $ ________ Name: ______________________________________________________________ ARDC # _____________________ Guest ________________________________________ Guest _____________________________________________ Firm: _________________________________________ Address: __________________________________________ City: ___________________________________________ State: _______________________ ZIP: ________________ TEL: _________________________________________ E-Mail: _____________________________________________ Payment method: □ Check Enclosed □ AmEx □ VISA □ MasterCard □ Discover Card # ___________________________________________________________ Exp Date: ___________ CVC_______ Signature: ________________________________________________________________________________________

Return registration form & payment to:

2020 Lake County Bar Association 300 Grand Ave STE A Waukegan, IL 60085 TEL 847-244-3143February FAX 847-244-8259

31

Board of Directors’ Meeting November 21, 2019

Call To Order: 12:09 p.m.

ACTION ITEMS: 1. Consent Agenda: a. October Minutes – P4 b. October New Members – P8 Motion to approve agenda; motion seconded; motion passed.

2. Treasurer’s report: a. June - October 2019 Financial Report – P9 Treasurer gave an update on the financial report, total income, expenses, net operating income and expected expenses over the next 30 to 180 days. Revenue and expenses remain on track to meet our budgeted numbers.

OLD BUSINESS: 1. Current Membership Stats: a. Current Membership: 891 / Suspended (not renewed): 100 (P23) / New members: 75 2. Committee Event Sponsorship Policy: Final discussion and decision on implementing a policy.

Motion to table discus-

32 The Docket

sions indefinitely on Committee Event Sponsorship Policy, motion seconded; motion passed.

Discussion also had on sponsorships by non-members of the LCBA. Potential policy to be discussed at exectuvie meeting regarding priority of members and sponsorhips of non-members. Discussion also had on non-members attending LCBA committee meetings.

3. LCBA/LCBF Holiday Party: December 6 in LCBA Member Center. $25 (or more) donation requested from all LCBA and LCBF Board members.

Discuss who will secure and bring what. Discussion had on preparations, decorations, holiday cocktails, food, etc.

NEW BUSINESS: 1. Judicial Selection By Laws Revisions: Present proposed revisions to JSRC

By Laws. P26 Proposed revisions, including (1) “A spouse …. cannot

The

Meeting Minutes

BY TARA R. DEVINE SECRETARY

be on the committee”… (2) A member vetting a candidate shall meet, prefereably face to face, with the candidate unless the candidate refuses. Motion to adopt the proposed revisions to the JSRC By Laws: Motion seconded; Motion passed. Discussion on when the upcoming bar poll will be send, committee review dates, and when ratings go out.

2. Gridiron: February 21 & 22, 2020 @ Gorton Center.

Food Sponsors and Playbill advertisers needed.Update on the Gridiron, sponsorships discussed, and the use of Eventbrite.

OTHER MATTERS: 1. 2020 Installation Dinner: June 12 @ Ivanhoe Country Club 2. Real Estate Conference in Nashville: March 5-7, 2020 @ Hotel Indigo 3. Executive Session: Adjorn into Excutive Ses-

sion to discuss personnel matters Motion to adjourn: 1:12 p.m.

BOARD MEMBERS PRESENT Stephen Rice President Hon. Patricia Cornell First Vice President Joseph Fusz Second Vice President Kathleen Curtin Treasurer Tara Devine Secretary Brian Lewis Past President Hon. Christine L. Bishop 2017-2020 Director Katherine S. Hatch 2017-2020 Director David R. Del Re 2018-2021 Director Daniel Hodgkinson 2019-2022 Director Dale A. Perrin Executive Director

VOLUNTEERS NEEDED LAWYERS IN THE CLASSROOM April 27-May 1, 2020 @ Lake County Schools Volunteer one hour on one or more days presenting an in-classroom discussion on the 19th Amendment

DROP-IN CLINIC Thursday April 30, 2020 @ Waukegan Public Library 4:00 p.m. - 6:30 p.m.

Volunteer one or more hours answering legal questions one on one

CALL-IN-CLINIC Saturday May 2, 2020 @ Lake County Bar Office 9:00 a.m. - 12:00 p.m.

Volunteer one or more hours to answer legal questions via the phone

YES, I WOULD LIKE TO VOLUNTEER TO ASSIST WITH: DROP-IN CLINIC (4/30/20) CALL-IN-CLINIC (5/2/20) LAWYERS IN THE CLASSROOM

I wish to visit the following grade(s): Grades K-3 Grades 3-6 Grades 7-8 I am available on the following dates: 4/27 4/28 4/29 4/30 5/1

High School AM

PM

I am able to present to a class in Spanish Name _______________________________________________ Email Address _________________________________________ Telephone____________________________________________

Registration is available online at www.lakebar.org or return registration form to: February 2020 33 Lake County Bar Association • 300-A Grand Avenue• Waukegan, IL 60085 • TEL: 847-244-3143 • E-MAIL: info@lakebar.org

Esprit de Corps

E

sprit de Corps. As defined by Merriam-Webster, it’s: “The common spirit existing in the members of a group and inspiring enthusiasm, devotion, and strong regard for the honor of the group.” The English Language Learners Definition defines it as: “feelings of loyalty, enthusiasm, and devotion to a group among people who are members of the group.”

Sounds very much like the definition of a professional association. Like a Bar Association.

I often hear comments like “I can’t make it to your events.” Or “Waukegan is too far and difficult to get to.” Or other comments focused on attending like the cost, time of day, day of the week, color of the napkins...

I get it. Attending and having face to face conversations with fellow professionals is a big part of belonging to an association. Events offer members the opportunity to get to know one another outside

34 The Docket

of the contentious atmosphere of a court room.

We are blessed to have so many judges in the 19th Judicial Circuit participate and show up to our events.

What a great opportunity to get to know the judges in a casual, social atmosphere. Attendance at events has a snowball effect: the more members we have attend an event, the greater value that event is to those in attendance.

So yes, attending is important and valuable not only to you the member but also to the success of the Association. Make it a goal to attend at least one event per quarter.

There is also great benefit by just belonging.

Be proud that you belong to such a great and prestigious organization and promote it on your website, social media platforms and letterhead. Clients and potential clients notice and associate greater professionalism and creditability to your firm because of it.

The general public is 80% more likely to do business

In the

Director’s Chair

with a company they know is active and involved with that profession’s professional association. This holds true for belonging to your local Chamber as well.

There’s also the value of “Being in the Know.”

Granted, that assumes you take the time to look at and read information we send including emails. Information such as Death Notices, judicial openings and announcements of newly appointed judges, recognition a fellow attorney received, upcoming events hosted by other groups/ organizations, volunteer opportunities, criminal indictments, and on and on. This is an oft overlook or undervalued benefit.

But where would you get this info if not from the Bar Association.

Finally there are the many volunteer opportunities that belonging to and association offers.

Volunteering is about giving, contributing and

BY DALE PERRIN EXECUTIVE DIRECTOR helping other individuals to make a meaningful contribution toward a better community. Several opportunities coming up include our Lawyers in the Classroom, and Ask a Lawyer Call-In and DropIn Clinics. See the fullpage ad in this issue. For those not familiar with the Lawyers in the Classroom, during the week of April 27 – May 1 we need lawyers willing to visit classrooms (K-12 that sign up for this program) in Lake County to talk about and educate the students on the 19th Amendment (which is this year’s ABA Law Day theme), or the legal profession in general. The ABA provide us with curriculum by grade level for you to follow. It’s a simple, turn-key operation. Please volunteer.

I’ll leave you with one of my favorite quotes by Albert Einstein: “Not everything that counts can be counted.

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February 2020

35

Monthly

Committee Meetings

DAY

MEETING

LOCATION

TIME

1st Tuesday

Diversity & Community Outreach

LCBA

12:15-1:15

1st Thursday

Real Estate

Primo, Gurnee

5:30-6:30

Editorial 1st Thursday (Even Mo.) Docket Committee

LCBA

12:15-1:15

2nd Tuesday

LCBA

12:15-1:15

LCBA

4:30-5:30

Criminal Law

2nd Tuesday (Odd Mo.) Immigration 2nd Wednesday

Family Law Advisory Group (FLAG)

LCBA

12:00-1:00

2nd Wednesday

Civil Trial and Appeals

LCBA

4:00-5:00

2 Thursday

Young & New Lawyers

TBD

12:15-1:15

2nd Thursday

Trusts and Estates

LCBA

12:15-1:15

3rd Tuesday

Local Government

LCBA

12:15-1:15

3rd Tuesday

LCBF Board of Trustees

LCBA

4:00

3rd Wednesday

Debtor/Creditor Rights

Varies

5:30-6:30

3rd Wednesday

Family Law

C-105

12:00-1:00

3rd Wednesday (Odd Mo.) Employment Law

Varies

5:15-6:15

3rd Thursday

LCBA

12:00 noon

nd

LCBA Board of Directors

• RSVP to a meeting at www.lakebar.org.

• Meetings subject to change. Please check your weekly e-news, the on-line calendar at www.lakebar.org or call the LCBA Office @ (847) 244-3143.

• Please feel free to bring your lunch to the LCBA office for any noon meetings. Food and beverages at restaurants are purchased on a individual basis.

Judge Fusz Retirement Dinner

Judge Fusz Retirement Dinner

To place an ad or for information on advertising rates, call (847) 244-3143

Do you have a speaker idea or suggestion for our business meetings?

We would like to hear from you!

Send your ideas to: dale@lakebar.org 36 The Docket

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February 2020

37

300 Grand Avenue, Suite A Waukegan, IL 60085 Tel: 847-244-3143 Fax: 847-244-8259

MEMBER RECEPTION

MEMBER RECEPTION SPONSORSHIP OPPORTUNITIES

LCBA Member Receptions will generally be held on the 4th Thursday of every month.

Your $500 sponsorship includes: • Recognition in advertising before the event and on signage at the event • Reception from 4:30 – 6:30 p.m.

• Complimentary beer and wine. Upgrades available for additional fee.

Contact Dale Perrin at dale@lakebar.org to add your name to a reception.