The Docket - March 2019

THE

DOCKET The Official Publication of the Lake County Bar Association • Vol. 26 No. 3 • March 2019

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Contents THE DOCKET • Vol. 26, No. 3 • March 2019

FEATURES

8 What is PMBR and does it Relate to YOU?

BY CHRISTINE P. ANDERSON

12 “I’ll Give you my Gun when you Pry it from my Cold Dead Hands” … or if you Obtain a Firearms Restraining Order from an Illinois Circuit Court Judge

A publication of the

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 Deborah L. Goldberg 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 Michael S. Strauss Rebecca J. Whitcombe Alex Zagor

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

Back Cover

ONE ISSUE

6 ISSUES

BY JEFFREY A. BERMAN, PRESIDENT

24 The Meeting Minutes January 24, 2019

BY SHYAMA S. PARIKH

26 In the Director’s Chair

What’s the Benefit?

BY HON. DANIEL JASICA

BY DALE PERRIN

16 The Old Adage that Insurance Companies can and will Engage with Impunity in a Strategy of “Defer, Delay, Don’t Pay” may Finally be Ending, at Least in Illinois.

LCBA EVENTS

20

BY JEFFREY A. BERMAN

Lawyers in the Classroom A Call for Volunteers

BY TIMOTHY ROUT

COLUMNS

2 President’s Page LCBA’s Ombudsperson Program

IFC 2019 LCBA Office Rental Pricing 3 New LCBA Members 3 Member Reception 4 The Calendar of Events 11 Lawyer Referral Service 15 Doctor-Lawyer Dinner 21 Law Day 2019 23 25th Annual Family Law Conference 28 Monthly Committee Meetings

BY BRIAN J. LEWIS, PRESIDENT

STAFF Dale Perrin Executive Director Jose Gonzalez Membership Coordinator

AD SIZE

6 Bar Foundation Give in to your Instinct to be Generous.

4 The Chief Judge’s Page St. Patrick’s Day

BY CHIEF JUDGE JAY W. UKENA 12 ISSUES

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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’s Ombudsperson Program

O

ne of my responsibilities as President of the LCBA is to keep our members informed. Over the past eight months, with everything our organization has survived, I have worked very hard to do just that.

I have had tremendous help from Dale and Jose

2018-19 OFFICERS & DIRECTORS Brian J. Lewis President Stephen J. Rice First Vice President Patricia L. Cornell Second Vice President Joseph M. Fusz Treasurer Shyama S. Parikh Secretary Jennifer J. Howe Immediate Past President Tara R. Devine Torrie M. Newsome Hon. Christen L. Bishop Katharine S. Hatch David R. Del Re Thomas A. Pasquesi

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in the LCBA office, as well as from the devoted Board Members and Executive Committee members with whom I have the honor of volunteering.

Recently, I learned for the first time about a noteworthy aspect of our organization that I never knew existed – the Ombudsperson Program.

This program does not get much (or any) publicity, yet I believe it should.

This program is the epitome of our members being there for each other in times of need. I want to ensure that all of our members know about this important program.

In December 2003 a Joint Resolution was passed by the Judges of the Nineteenth Judicial Circuit and the LCBA establishing the Ombudsperson Program. The Judiciary and the Bar determined that there was a need to designate an ombudsperson “for purposes of being a liaison between members of the Bar and of the local judiciary.”

The

President’s Page

Specifically, the Joint Resolution enumerated, in part, as follows: (1) The [Ombudsperon’s] primary responsibility will be to receive and deliver suggestions, criticisms or complaints between members of the judiciary and practitioners, in an attempt to resolve matters brought to his/her attention; (2) All communications, criticism, complaints and suggestions made to the [Ombudsperson] in his/her capacity as [Ombudsperson] are considered confidential to the reporter and to the subject of the report.

Perhaps the confidentiality clause in the Resolution is the reason I had not heard of this wonderful program earlier.

Regardless, once I did learn about its existence, I contacted my friend and former LCBA President, Bernie Wysocki, to learn

BY BRIAN J. LEWIS PRESIDENT about it. You see, Bernie has been acting as our Ombudsperson since the inception of the program.

Bernie explained that while the program was initially designed to open an avenue of communication (disputes, suggestions, etc.) between the Bench and Bar, it evolved into much more than that.

The Ombudsperson has been called upon to assist attorneys - many times when they do not realize they need help, but when fellow lawyers and judges believe they do.

It should come as no surprise that we as lawyers are not immune from, for example, alcohol and drug addictions and financial challenges that affect our ability to practice law.

Over the last decade and a half, approximately 20-25 people have been helped by our Ombudsperson program. Whether it was a financial issue related

to the use of a client trust account or firm credit card, or whether it was an addiction issue affecting one’s ability to responsibly represent a client, our Ombudsperson has been available to help by, among other things, offering confidential advice and guidance.

It is important we all know about this program so we can help our fellow LCBA members and friends when they need it. I am proud to inform you that this year I appointed two people to fill the Ombudsperson role so that those seeking assistance for themselves or others can have a choice.

The Board of Directors unanimously approved

Bernie Wysoki and The Honorable Fred Foreman to serve as our Ombudsmen. The credentials of these two men are unparalleled. They are devoted members of our LCBA community and are well respected. I am grateful that Bernie and Judge Foreman agreed to fill this role together. Each of them enthusiastically agreed to serve and we are fortunate to have them.

The Joint Resolution establishing the Ombudsperson Program is available to you in the LCBA office. It was codified in our By-Laws in 2004 and can be found there as well.

I encourage you to use this wonderful program if the need arises.

Welcome

New LCBA Members

Attorneys

Professionals

Katherine Bills Hardt, Stern & Kayne, P.C.

Shanise Evans Wells Fargo Private Bank Laura Gebhardt Laura Gebhardt, LCSW

Beth Burns Beth P. Burns PC

Nick Ghezavat Attorney Matthew Quick, P. C.

Jennifer Cohen Kalcheim Haber, LLC Jocelyn Gravel Attorney At Law

Ryan Kern Krimson Security & Fingerprinting

Associates

Karin Robison Coldwell Banker Residential

Walter Carney Attorney At Law

Students Lauren Ceckowski Mary Reder

Michael Miklautsch Attorney At Law

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

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

Reception from 4:30 – 6:30 p.m.

Complimentary beer and wine.

Upgrades available for additional fee.

March 2019

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St. Patrick’s Day

I

n its modern observance, St. Patrick’s Day tends to evoke celebratory imagery such as parades, dying the Chicago River green and festive

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Calendar of Events

March 8, 2019 Brown Bag Luncheon GALs - You have been appointed, now what?

12:00 P.M. LCBA Office March 19 Membership Luncheon Access to Justice Awards 12:15 PM City of Waukegan City Hall April 8 Brown Bag Luncheon Legal and Practical Issues During the Hiring Process 12:00 LCBA Office April 11 2019 Family Law Conference Scottsdale, AZ

Register for these events online at: www.lakebar.org

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get-togethers. But before we down that first mug of green beer, I wanted to take a moment to talk about the history behind the festivities. Research indicates that St. Patrick died on March 17, 461 A.D. in Saul, County Down, Ireland. This is the location where he established his first church in Ireland in a small simple barn. St. Patrick’s Day was originally a religious observance and a day for spiritual renewal, even though today it seems to have become somewhat detached from that original meaning.

The history of St. Patrick’s Day as an official holiday dates back to the 1900s, although it was celebrated as a national feast day in Ireland as early as the 10th Century.

St. Patrick is often credited as a missionary that helped bring Christianity to Ireland, and it is said that he used the leaves of the Shamrock to teach the doctrine of the Holy Trinity. St. Patrick’s birth name was not Patrick but Maewin, and he was born

The

Chief Judge’s Page in either Wales or Scotland in the late 4th Century, not in Ireland. He was kidnapped into slavery at the age of 16 and brought to Ireland. He then escaped to a monastery in France and converted to Christianity. He returned to Ireland in 432 A.D. as a missionary. Many legends developed regarding St. Patrick over the years, some true, some simply folklore. One famous legend is that he used his faith to drive the snakes out of Ireland, however according to historians and other experts, snakes have never inhabited the islands of Ireland.

The person who established St. Patrick’s Day is an individual named Luke Wadding, an Irish Franciscan Friar, whose persistent efforts turned March 17th into a feast day. Wadding was born in 1558 and died in Rome in 1657. Although St. Patrick’s Day is an Irish celebration, it has become more Irish-American than it is strictly Irish. The first

BY CHIEF JUDGE JAY W. UKENA gathering of Irish men to honor St. Patrick in America was held on March 17th, 1737 in Boston, and the first St. Patrick’s Day parade took place in New York in 1766 and was held

by Irish soldiers serving in the British army. Ireland did not have its first St. Patrick’s Day parade until 1930 in Waterford, Ireland.

Dublin joined the club in 1931. Today the parade in Dublin is a huge, colorful, theatrical event, celebrated with the consumption of Guinness Beer, dressing like Leprechauns and dancing to Celtic music.

What St. Patrick’s Day has become is largely symbolic and an excuse to have a lot of fun.

In addition, green is not the original color associated with St. Patrick’s Day. Until the 1930s, the color most associated with St. Patrick’s Day was actually blue, which can still be seen in ancient Irish flags. “St. Patrick’s Blue” is a name applied to several shades of blue associated

with St. Patrick in Ireland.

The color blue’s association with St. Patrick’s dates from the 1780s when it was adopted as the color of the Anglo, Irish “Order of St. Patrick’s”. The 1912 Court uniform in Ireland specified that the household of Lord Lieutenant of Ireland should wear St. Patrick’s Blue, as should the Pages of Honor when the king was in Ireland. The Ireland Association Football Team wore St. Patrick’s blue uniforms from 1882 until 1931 when they switched to green. While green is now the usual national color of Ireland, St. Patrick’s blue is still found in symbols of both the State and the Island.

The color green was not significant to St. Patrick according to most historians

and most accounts. St. Patrick never wore green, although he did use the Irish Shamrock as symbolic of the Holy Trinity. The color green was associated with the Shamrock. One of the main reasons green became the dominant color dates back to the Irish Rebellion.

Irish soldiers wore green as they fought the British in their trademark red. The soldiers sang “The Wearing of the Green” during the war in 1798. Although there are several versions of the song, some of the more significant lyrics include:

When the law can stop the blades of grass from growing as they grow, and when the leaves of summertime their verdure dare not show, well it’s then I’ll change the color that I wear in my corbeen, but till that time praise God I’ll keep to the wearing of the green

From then on, people wore green on St. Patrick’s Day in solidarity.

So, with all this in mind, on this March 17th, as you don your celebratory green attire, please be safe, and remember the adage that everyone is Irish on St. Patrick’s Day.

St. Patrick’s Day no more we’ll keep, His color can’t be seen, For there’s a bloomin’ law agin’ The wearing of the green. ***

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5

Give in to your Instinct to be Generous.

You will reap a benefit too, and perhaps even experience a “helper’s high.”

I

recently ran across the story of a Czech model named Petra Nemcova and her fiancé, Simon Atlee. On December 26, 2004, they were vacationing in Thailand. That morning, a tremendous earthquake took place, triggering a series of devastating tsunamis around Board of Trustees Jeffrey A. Berman President Carey J. Schiever Vice President Joann M. Fratianni Secretary Perry S. Smith Jr. Treasurer Melanie K. Rummel Immediate Past President Jennifer L. Ashley Nandia P. Black Patricia L. Cornell Douglas S. Dorando Hon. Fred Foreman (Ret.) Scott B. Gibson Kenneth J. Glick David J. Gordon Keith C. Grant Amy L. Lonergan Fredric B. Lesser Steven P. McCollum Michael G. Nerheim Mark B. Peavey Nicholas A. Riewer Hon. Henry C. Tonigan (Ret.) Hon. Joseph R. Waldeck (Ret.) Brian J. Wanca

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the Indian Ocean. Nemcova and Atlee were in their vacation bungalow when the first wave hit. Nemcova was swept into a current of debris, breaking her pelvis and disabling her legs, and causing other devastating internal injuries. She would never see her fiancé again. The tsunamis left a trail of destruction in fourteen countries and killed more than 230,000 people, including Simon Atlee.1 Barely a year later, while still recovering, Nemcova returned to Thailand, determined to help the children whose lives were impacted by the natural disaster.

Why, one commentator wondered, did she react to her experience by seeking out a chance for generosity; what drove her to engage in 1

See, e.g., “2004 Tsunami: Petra Nemcova, the supermodel who survived the Boxing Day tragedy,” The Telegraph, Dec. 26, 2014, accessed on line at https://www.telegraph.co.uk/ news/worldnews/asia/thailand/11303121/2004-Tsunami-Petra-Nemcova-the-supermodel-who-survived-the-Boxing-Day-tragedy.html.

BY JEFFREY A. BERMAN PRESIDENT are those who do the most for others.” ~Booker T. Washington

philanthropy as a response to her personal tragedy?

IS GENEROSITY JUST A PHILOSOPHICAL IDEA? It is a well-accepted notion, and people seemingly learn early on that it is better to give than to receive.

The venerable aphorism is drummed into us from a variety of authorities.

“For it is in giving that we receive.” ~Saint Francis of Assisi “We make a living by what we get; we make a life by what we give.” ~Winston Churchill “If you want happiness for a lifetime, help somebody else.” ~Chinese proverb

While it is perfectly okay for philosophers to wax poetically, isn’t there something more at work?

What really drives people such as Petra Nemcova to go back to a scene of devastation and loss to help others, including setting up a foundation to assist the disaster victims by rebuilding schools in areas hit by the catastrophe, when it would have been so much easier for her to turn inward and remain aloof? One school of thought would suggest the motivation lies in the intangible personal benefits that result from acts of kindness.2 Can it really be as simple as the idea that giving is good for the 2

“Those who are happiest

See, e.g., Jenny Santi, The Giving Way To Happiness (2015).

giver? Perhaps so. At least some scientific research, and related analyses, seem to provide intriguing data to support the notion that giving of one’s time, talents and treasures is a powerful means to find joy, fulfillment and meaning in life.

“SURVIVAL OF THE KINDEST”?

Academic researchers have been engaged in work which they say challenges “long-held beliefs that human beings are hardwired to be selfish.” According to their analysis, “social scientists are amassing a growing body of evidence to show we are evolving to become more compassionate and collaborative in our quest to survive and thrive.” They called the phenomenon: “survival of the kindest.” 3 “Because of our very vulnerable offspring, the fundamental task for human survival and gene replication is to take care of others,” said one of the researchers. “Human beings have survived as a species because we have evolved the capacities to care for those in need and to cooperate.”4 Although this would superficially appear to oppose Charles Darwin’s well-known “survival of the fittest” model, the researchers believe otherwise. For example, in “The Descent of Man,” Darwin talks about benevolence 3

4

Anwar, “Social scientists build case for ‘survival of the kindest’,” Berkeley News, Dec. 8, 2009, accessed on line at https://news.berkeley. edu/2009/12/08/survival_of_ kindest/.

Id., quoting Dacher Keltner, co-director of University of California, Berkeley’s Greater Good Science Center.

many times, concluding that love, sympathy and cooperation also exist in the natural world, like the way a pelican might provide fish for a blind pelican in its flock.5 These academic researches thus believe that “[h]uman beings have survived as a species because we have evolved the capacities to care for those in need and to cooperate.”

And from there they point out that, as “Darwin long ago surmised, sympathy is our strongest instinct.”6 ARE WE PHYSICALLY PROGRAMMED TO SERVE AND TO GIVE? Other reported studies 5 6

Santi, The Giving Way To Happiness, at 6.

Anwar, supra.

at the National Institutes of Health appear to demonstrate that when we give through serving or donating money the areas of our brains that reflect pleasure are activated. Their results show that when the volunteers placed the interests of others before their own, their generosity activated a primitive part of the brain that usually lights up in response to food or sex.

According to these studies, donating affects two brain “reward” systems working together: the midbrain VTA, which also is stimulated by food, sex, drugs and money; as well as the subgenual area, which is stimulated when humans see babies and romantic partners. Or, in their words, “more ante-

rior sectors of the prefrontal cortex are distinctively recruited when altruistic choices prevail over selfish material interests.” 7 Another study found compelling evidence that many of us are genetically predisposed to be empathetic. Informally known as the “cuddle hormone,” when oxytocin is secreted into the bloodstream and the brain, it promotes social interaction, nurturing and romantic love, among other functions. The study, led 7

“Human fronto–mesolimbic networks guide decisions about charitable donation,” published on line at https://www.pnas.org/content/103/42/15623.

continued on page 25

At February’s Foundation Board meeting, Foundation President, Jeffrey Berman presented Waukegan to College with a $15,000 donation from the “Rebels with a Cause” Casino Gala net revenue. Executive Director, Elyse Danckers, and W2C Board member (and LCBA member) Louise Hayes accepted the check on behalf of their board and entire organization and thanked the Foundation for their support and participation over the past couple of years.

March 2019

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What is PMBR and does it Relate to YOU?

C

BY CHRISTINE P. ANDERSON

an you believe that over 40% of Illinois solo practitioners do not maintain malpractice insurance? Can you also believe that more than 77% of Illinois solo practitioners do not have a succession plan for their law practices?

A succession plan is akin to a Last Will and Testament for your law practice, and therefore puts you in a position to transition your law practice to another lawyer or law firm in the event you are no longer able to practice. Unfortunately, many solo practitioners who have worked alone for many years are caught up in their day-to-day challenges and forget to plan successfully for the future of their law practice. So, if a sole practitioner who does not have a succession plan in place were unable to practice law due to an unforeseen crisis or death, Christine P. there would be no-one designated Anderson is to advise clients, return client files the Director or close the lawyer’s law practice. of Probation Such events may result in substantial and Lawyer harm to the lawyer’s clients.

Deferral Services In order to address these issues, and Senior in January of 2017, the Illinois SuLitigation preme Court amended Supreme Counsel Court Rule 756(e)(2) to provide with ARDC for mandatory Proactive Managewhere she has worked ment-Based Regulation (PMBR). In since 1988. fact, Illinois is the first state in the

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country to mandate such an approach within the regulation of the bar.

PMBR is designed for private practitioners who do not maintain malpractice insurance to demonstrate that they have reviewed the operations of their law firms based upon legal ethics rules and best business practices. PMBR is a four-hour interactive, online self-assessment broken down into eight modules which address various aspects of the operation of a law firm. The course modules, which are designed to require attorneys to think, review and minimize the risks associated with their law practices, include the following topics: The Intersection of Technology & Ethics; Conflicts of Interest; Fees, Costs & Billing Practices; Attorney-Client Relationships; Client Trust Accounts; Civility & Professionalism; Attorney Wellness; and Diversity & Inclusion. The topics will be updated every two years.

Through the PMBR course, lawyers will learn certain profession-

al responsibility requirements for practicing law and ethically operating a law firm. They will also hear from a number of experienced professionals about best business practices and skills. In addition, the course will require lawyers to demonstrate an understanding of these requirements through interactive scenarios, knowledge checks and quiz questions. Lawyers will then review the operations of their firm in light of what they have learned. At the end of each module, helpful resources, including sample forms and letters, articles, ethics opinions and fact sheets will be provided. Lawyers will also receive an individualized self-assessment printout documenting the results of each module’s self-assessment quiz. The results are purely for the educational benefit of the lawyer taking the course.

Moreover, all information related to the assessment will be kept confidential, except for the fact of course completion. Lawyers are encouraged to work through the course with an open mind, honestly answering each question in order to receive all the benefits the course has to offer.

The PMBR course is free and is available on the ARDC website at www.iardc.org. The entire four-hour course does not have to be taken in one sitting, but can be taken in increments. It is available to all Illinois lawyers, but is mandatory every other year, for those lawyers in private practice who do not maintain malpractice insurance. Time is of the essence, however, because the course must be completed before private practitioners, who do not maintain malpractice insurance, are allowed to register with the ARDC for the 2019 registration year.

Lawyers who are not in private practice, such as government lawyers, corporate in-house counsel, public defenders and prosecutors, are not mandated to take the PMBR self-assessment, unless they also represent private clients and do not maintain malpractice insurance.

Many lawyers’ mental health and substance abuse issues can be traced to law school. It is in law school that these lawyers began to experience the intense stress that can lead to anxiety, depression, substance abuse and other mental illnesses. While students entering law school suffer from clinical stress and depression at a rate that mirrors the national average, that rate sharply increases during the first year of law school.

Through the duration of their legal education, the rates of law students struggling with substance abuse and mental health problems increase dramatically. If unrecognized and untreated, these issues will carry from law school into these students’ legal careers.

Can you believe that

over 40% of Illinois solo

practitioners do not maintain

ATTORNEY WELLNESS AND THE ARDC The mission of the ARDC is to promote and protect the integrity of the legal profession, at the direction of the Illinois Supreme Court, through attorney registration, education, investigation, prosecution and remedial action. Unfortunately, many lawyers only seek assistance for their substance abuse or mental health issues when they are encouraged or compelled to do so as a result of contact by the disciplinary office. In furtherance of the goals of education and remedial action, the Court and the ARDC have implemented several new rules and procedures, in addition to PMBR, with a focus on lawyer well-being.

One of the modules developed for the PMBR self-assessment course, and important to the mission of the Illinois Lawyers’ Assistance Program, is on the topic of attorney wellness. In the attorney wellness module, lawyers are informed that in order to fulfill their ethical obligations to clients and others, they should learn and practice wellness strategies. In the PMBR module, lawyers learn about attorney wellness and the help that is available for attorneys struggling with wellness issues; the ethics rules related to attorney wellness; and steps lawyers can take if they or a colleague need assistance.

In April of 2017, the Illinois Supreme Court amended Supreme Court Rule 794(d) to require lawyers to complete one hour of mental health and substance abuse education as part of their mandatory continuing legal education requirements. In order to assist practitioners in completing this new continuing education requirement, a free, one-hour online CLE on “Attorney Well-Being” is available to all practitioners on the ARDC website.

The ARDC’s Attorney Well-Being CLE provides information on various areas of attorney wellness, including the physical, spiritual and emotional realms. In

malpractice insurance?

DID YOU KNOW THAT LAWYERS SUFFER FROM ANXIETY, STRESS, DEPRESSION, SUBSTANCE ABUSE AND SUICIDE IN NUMBERS FAR GREATER THAN THAT OF THE GENERAL POPULATION? To be a good lawyer, one has to be a healthy lawyer.

Our profession, however, is failing when it comes to lawyer well-being. Studies have found that substance abuse, suicide, depression and other mental health disorders are at astonishingly high rates in the legal profession. These findings raise troubling implications for lawyers’ basic judgment and competence to practice law.

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addition, there are self-assessment tools to assess one’s own wellness, as well as hypotheticals and speakers who address various components of attorney wellness and the help that is available to lawyers.

The Illinois Supreme Court and the ARDC want Illinois lawyers be successful in their law practices. The PMBR program and other new programs developed by the ARDC are designed to help lawyers succeed by providing them with the resources needed for them to be effective and successful in their profession.

Christine Anderson is a 1986 graduate of IIT Chicago-Kent College of Law. She joined the ARDC in 1988 and currently holds the position of Director of Probation and Lawyer Deferral Services and Senior Litigation Counsel. During her employment with the ARDC, Ms. Anderson has investigated and prosecuted hundreds of cases of attorney misconduct and has argued several disciplinary cases before the Supreme Court of Illinois.

Besides her investigative caseload, Ms. Anderson monitors the attorneys placed on diversion, supervision status by the Inquiry Board and probation and conditional admission by the Supreme Court of Illinois. She is also a frequent presenter at continuing legal education programs on topics related to professional responsibility and lawyer regulation.

Lindsay, Pickett & Postel is growing and we are looking for a full and/or part-time attorney for our Waukegan office with 0-5 years of experience to support our insurance defense practice. Insurance coverage experience a plus. Candidates should email their resume to William Lindsay at wlindsay@lpplawfirm.com ADVOCATES OF OUR CLIENTS’ INTERESTS STEWARDS OF THEIR RESOURCES

www.lpplawfirm.com

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LAWYER REFERRAL SERVICE

Why should YOU join the LCBA Lawyer Referral Service?

The LCBA Lawyer Referral Service (LRS) is a valuable member benefit as well as a public service. LRS provides member attorneys with an opportunity to build business through client referrals. The service benefits the public by helping callers quickly find an attorney in the area of law in which they need help. The LRS is widely publicized and all LCBA members in good standing who carry the required malpractice insurance are eligible to join.

The LRS program is designed to assist persons who are able to pay normal attorney fees but whose ability to locate legal representation is frustrated by a lack of experience with the legal system, a lack of information about the type of services needed, or a fear of the potential costs of seeing a lawyer.

The Lawyer Referral Service is an intuitive win/win/win. We’re helping the public, by providing them with legal resources with some degree of reliability; we’re helping our members, by playing matchmaker with clients whom they can help for a minimal referral cost; and we’re helping the Bar Association and our public image by offering our services. Although not all of the matches will work out, the risks and costs are minimal and the rewards are great.

Deborah Goldberg, Goldberg & Kane

“I have been a member of the referral service for many years, particularly in the fields of Trusts & Estates. The service has generated a stream of potential clients, some of which are not viable but many of which have ripened into clients for litigation or estate planning. Frankly, I don’t mind answering people’s questions about our field of law, which most people find confusing. The referral service has been a great way for potential clients to speak with me and discuss the issues before having to spend money and before I have to commit to the clients. I whole-heartedly recommend the LCBA’s Client Referral Service as a way to grow your practice.”

Fredric Bryan Lesser, Lesser Lutrey McGlynn & Howe LLP As a long-time member of the LCBA Lawyer Referral Service I know how useful it is to be a member of the service. I have obtained several cases through the service and would strongly recommend that attorneys seeking cases join.

Compared to the many online services that claim to provide cases, the LCBA’s referral service actually delivers at a much lower cost.

Steve McCollum, Law Offices of Steven P. McCollum, P.C.

AVA I L A B L E R E F E R R A L PA N E L S • Administrative • Appellate • Commercial

• Consumer • Criminal • Employment

• Environmental • Family • Real Estate

• Estate Planning, Wills, Trusts and Probate • Personal Injury / Property Damage

C O N TA C T T H E L C B A AT 8 4 7 . 2 4 4 . 3 1 4 3 O R AT I N F O @ L A K E B A R . O R G

L A K E C O U N T Y L AW Y E R . I N FO March 2019 11

“I’ll Give you my Gun when you Pry it from my Cold Dead Hands” … or if you Obtain a Firearms Restraining Order from an Illinois Circuit Court Judge

W

BY HON. DANIEL JASICA

ith apologies to the late Charlton Heston, effective January 1, 2019, a family member or a law enforcement officer may petition the court to secure an emergency, ex parte 14-day and, after notice and hearing, an additional, sixmonth firearms restraining order against a person believed to pose a danger to themselves or others by possessing or having access to a firearm.

The Illinois Firearms Restraining Order Act (the “Act”)1 tracks the general framework established for obtaining orders of protection under the Illinois Domestic Violence Act2 and, for that reason, should be fairly easy for experienced practitioners to learn and utilize. The obvious goal of the Act is to provide a proactive legal remedy to prevent firearm violence while recognizing the Second Amendment and due process rights and protections of a firearms owner. I will leave it to others to debate the wisdom, efficacy, or constitutionality of the new Act; the goal of this article is simply Hon. Daniel to alert you to and give you a basic Jasica is an understanding of the most salient Associate Judge provisions of the Act. in the Nineteenth Judicial Circuit A firearms restraining order is for Lake County, initiated by the e-filing of a verified Illinois, where he petition in the county where the presides over the 1 2

12

430 ILCS 67/1 et seq.

750 ILCS 60/201 et seq.

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civil Chancery courtroom.

respondent resides.3 (Yes, criminal bar, this means you do have to register and learn how to e-file). Forms for the petition soon should be available on the Lake County Circuit Clerk’s website.4 There are no filing fees and no service fees associated with the petition.5 A petitioner may seek an ex parte emergency firearms restraining order, a six-month firearms restraining order, or both.

Under the Act, a “family member” of the respondent or a law enforcement officer may file the verified petition.

“Family member” is defined broadly to include anyone that is related to the respondent by blood or marriage or who resides with the respondent.6 Irrespective of whether the petitioner is seeking an emergency restraining order or a six3 430 ILCS 67/10(a) and (b).

4 https://www.lakecountycircuitclerk.org/ court-forms 5 430 ILCS 67/10(c).

6 Id., §5.

month restraining order, if the respondent is alleged to pose a threat to a spouse, former spouse, or person with whom the respondent has a dating relationship or a child in common, the petition must include proof that the petitioner has made a good faith effort to contact any such “intimate partner” to notify them of the petitioner’s intent to seek a restraining order.7 Presumably, this notice is only required when the petitioner is not the subject of the respondent’s threats, such as when law enforcement is seeking the order, or when a family member is trying to protect a relative residing with or dating the respondent from harm.

If the petitioner is seeking an ex parte, emergency order, the petition must contain verified facts demonstrating that the respondent poses “an immediate and present danger of causing personal injury to himself, herself, or another by having in his or her custody or control, purchasing, possessing, or receiving a firearm.”8 The petition must also describe the “type and location” of any firearms the petitioner believes the respondent possesses or controls.9 The emergency firearms restraining order will be considered and, if appropriate, granted without notice to the respondent if the court finds probable cause to believe the respondent poses an immediate and present danger of personal injury because of his or her access to firearms.10 If granted, the emergency restraining order requires the respondent to refrain from possessing firearms and directs the respondent to surrender any FOID card or conceal carry permit to local law enforcement.11 Furthermore, the Act provides that, upon a finding of probable cause, the court shall issue a search warrant directing law enforcement to seize the respondent’s weapons and may direct law enforcement to search respondent’s residence or any other place the court finds probable cause to believe the respondent is likely to possess firearms.12 The emergency order is valid for only up to fourteen

days, and a full hearing, with service of summons upon respondent, must be scheduled within those fourteen days to determine if a six-month restraining order shall enter.

The emergency order may be extended by the court for additional fourteen-day periods to effectuate service on the respondent or for longer periods if agreed by the parties.13 It bears noting that the Act does not identify the specific factors the court should consider in deciding whether an “immediate and present danger of causing personal injury” exists; presumably, however, the court may consider anything it believes is relevant to the issue, including but not necessarily limited to, the factors that the court is to consider in the context of a six-month restraining order—as discussed below.

Section 40 of the Act outlines the procedures that must be followed in order to obtain a sixmonth restraining order, which is akin to a plenary order of protection under the Domestic Violence Act.14 A six-month restraining order is initiated by affidavit or verified petition alleging that the respondent “poses a significant danger of causing personal injury to himself, herself, or another in the near future by having in his or her custody or control, purchasing, possessing, or receiving a firearm.”15 The petition must also describe the number, types, and location of any firearms the respondent is believed to possess or control.16 Within 30 days of the filing of the petition, the court must order a hearing. As a practical matter, because most petitioners will likely be seeking both an emergency and a six-month restraining order, it is anticipated that if an emergency restraining order is issued, the hearing for the six-month order will be set within the fourteen days that the emergency order is valid.

In determining whether to grant a six-month restraining order, the Act provides that the court shall consider evidence including but not limited to:

The six-month restraining

order prohibits a respondent from possessing, controlling or purchasing a firearm and

requires the surrender of any FOID card or conceal carry

permit during the duration of the restraining order.

7 8 9 10 11 12

Id., §§35(b) and40(b).

Id., §35(a)(emphasis added).

Id. Id., §§35(d), (e), and (f).

Id., §35(g).

Id., §35(f-1).

(1) The unlawful and reckless use, display, or brandishing of a firearm by the respondent; (2) The history of use, attempted use, or threatened use of physical force by the respondent 13 14 15 16

Id., §35(i).

Id., §40.

Id., §40(a)(emphasis added).

Id.

March 2019

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against another person; (3) Any prior arrest of the respondent for a felony offense; (4) E vidence of the abuse of controlled substances or alcohol by the respondent; (5) The recent threats of violence or acts of violence by the respondent directed toward himself, herself, or another; (6) A violation [of a prior order of protection]; (7) A pattern of violent acts or violent threats…17 At the hearing, the petitioner bears the burden of proof and must prove his or her right to relief by clear and convincing evidence.18 If the petitioner prevails, the court shall issue the firearms restraining order for six months, shall issue a search warrant directing law enforcement to seize respondent’s weapons if it finds probable cause that the respondent possesses a firearm, and may order a warrant directing law enforcement to search respondent’s residence or any other location where it has probable cause to believe respondent possesses firearms.19 The six-month restraining order prohibits a respondent from possessing, controlling or purchasing a firearm and requires the surrender of any FOID card or conceal carry permit during the duration of the restraining order.20 Irrespective of whether the firearms are seized as a result of an emergency or a six-month restraining order, a respondent may petition the court, with notice to the petitioner, to allow the firearms to be transferred to and safeguarded by a third party who may legally possess firearms and who does not reside with the respondent.21 Similarly, a third party who claims to be the lawful owner of any surrendered firearms may petition the court for the return of the firearms provided he or she also swears to store the firearms in a manner that does not allow access of the firearms to the respondent.22 17 Id., §40(e).

18 Id., §40(h) 19 Id., §§40(g) and (g-5).

20 Id., §40(h).

21 Id., §§35(h-5) and 40(i-5).

22 Id., §§35(h-6) and 40(i-6).

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A respondent against whom a six-month restraining order has been issued has the right to petition the court one time for the dissolution of the restraining order. At any such dissolution hearing, the respondent bears the burden of proving by a preponderance of the evidence that he or she does not pose a danger of personal injury by possessing a firearm.23 Within three months prior to the expiration of a six-month restraining order, a petitioner may request an extension of the restraining order for another six-month term; at such a hearing to extend, the petitioner bears the burden to prove by clear and convincing evidence that the respondent continues to pose a danger.24 In order to try to prevent any lasting negative consequences to a respondent, if the court denies a firearms restraining order petition, all records of the proceeding are to be immediately expunged. Even if the court grants a restraining order, all records shall be sealed three years after expiration of the order.25 Violation of a firearm restraining order is a Class A misdemeanor.

Here in Lake County, all firearms restraining order petitions are heard in the domestic violence courtroom, T511, the same courtroom where all other orders of protection and no contact orders are currently heard. Practitioners are encouraged to familiarize themselves with the court forms, procedures, and statutory provisions of the new Illinois Firearms Restraining Order Act so that you are properly prepared to initiate or defend against petitions seeking this new form of firearms-specific relief.

Daniel Jasica is an Associate Judge in the Nineteenth Judicial Circuit for Lake County. Judge Jasica presided over the misdemeanor Domestic Violence courtroom prior to his recent reassignment to a civil Chancery courtroom.

Prior to his appointment as an associate judge, he served as the Chief Deputy State’s Attorney for the Civil Division of the Lake County State’s Attorney’s Office, where he worked for seventeen years, following five years in private 23 Id., §45(a).

24 Id., §45(b) 25 Id., §80.

Thursday, March 21, 2019 Highland Park Country Club 1201 Park Ave. West, Highland Park 5:30 p.m. - 6:30 p.m.

6:30 p.m. - 7:30 p.m.

7:30 p.m. - 8:30 p.m.

Cash Bar Dinner Program

2019 Annual Doctor-Lawyer Dinner This year hosted by the Lake County Medical Society

The Many Faces of ABUSE! Victor Pacini Victor Pacini is a well-respected and recognized expert on the many aspects of abuse. He lectures nationally, on television, and is the author of many books on the subject. In addition he has presented nationally with Dr. Wayne Dyer. His engaging presentations make Victor Pacini one of the most sought after speakers and trainers in this most complex field.

Invited Disscussants:

Earn 1 Hour CLE Professionalism Credit

Dr. Richard Markin, psychologist, Dr. Michael Lubelfeld, Superintendent, School District 112 Mr. James Stamos, Esq., attorney at law Mayor John Dickert A tradition in our community for over 50 years!

Registration fee: $55 per person.

Please make checks payable to the Lake County Bar Association. No refunds after March 15.

SPOUSES AND GUESTS WELCOME! Name: ____________________________________________________________ Guest: ____________________________________________________

Ph: ___________________________________________________ EÇŚMail: ________________________________________________________________ Payment method:

_________ Check Enclosed _______ Visa ______ MasterCard _____ Discover _____ AMEX _____

Card #: _________________________________________________________________ Exp Date: _______________________ CCV #: __________

Billing Address: _______________________________________________________________________ Zip Code: ___________________________

Signature: ______________________________________________________________________________________________________________________ Dinner Choice: ______ chicken limone

______ grilled salmon

______ vegetarian

Return form to: Lake County Bar Association, 300 Grand Ave., Suite A, Waukegan, IL 60085 2019 March

15

The Old Adage that Insurance Companies can and will Engage with Impunity in a Strategy of “Defer, Delay, Don’t Pay” may Finally be Ending, at Least in Illinois.

T

BY JEFFREY A. BERMAN

he Second District’s recent decision in Charter Properties, Inc. v. Rockford Mutual Ins. Co. makes clear that policyholders have meaningful remedies when insurance companies act badly.

The ability to win punitive damages or attorneys’ fees as a result of insurance companies’ wrongful conduct gives policyholders vital leverage in insurance coverage disputes. States vary widely in the extent to which such awards are obtainable. In one recent Illinois case, the Second District Court of Appeals found that policyholders were entitled to extra-contractual relief because of their insurance company’s egregious failures in Jeffrey dealing with their claims.1 It is a cauBerman, tionary tale for insurers and offers of the law practical guidance for anyone seekfirm of Anderson + ing coverage or defending against Wanca, has insurance claims in Illinois. extensive The policyholder whose claim experience was at issue in that case, Charter in complex Properties, Inc. (“Charter”), owned commercial litigation, a commercial building that partially insurance collapsed in 2011.2 At the time of the 1 2

16

Charter Props., Inc. v. Rockford Mut. Ins. Co., 2018 IL App (2d) 170637 (Nov. 8, 2018).

Id. at ¶¶ 1, 5.

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collapse, Szechwan Garden was a tenant that operated a restaurant on the second floor of the building, paying rent of $1,500 per week.3 Charter had purchased an insurance policy from Rockford Mutual Insurance Company (“Rockford Mutual”) that included building replacement coverage in the amount of $1.64 million.4 After the collapse, Charter submitted a claim to Rockford Mutual for the loss of the building and for lost business income.5 As a result of the collapse, the restaurant was closed for nearly 49 weeks, from August 8, 2011, through July 12, 2012, while the building was being replaced. Charter thus lost a total of $72,643 in rental income during that time.6 Charter also claimed that it spent more than $1.76

and insurance coverage litigation matters in state and federal courts across the country. He presently serves as a member of the Docket Committee.

3 4 5 6

Id. at ¶¶ 1, 6.

Id. at ¶¶ 1, 5.

Id. at ¶¶ 1, 5.

Id. at ¶ 6.

million to rebuild the premises.7 To say the least, Rockford Mutual’s claims adjustment process was slow, and its adjusters were not responsive to Charter’s inquiries. Its adjusters failed to respond to repeated requests over several months for direction regarding the process to review and settle the claim.8 In addition, its adjusters repeatedly failed to keep inspection appointments, frequently cancelling without any prior notice.9 Nevertheless, Rockford Mutual voluntarily made some payments on the claim.10 Specifically, over a period of two years following the loss, Rockford Mutual paid Charter $1,046,964 for its claim for costs incurred to rebuild the building, and another $54,000 for lost income, or a total of $1,100,964.11 Thereafter, however, Rockford Mutual informed Charter that its claims were “held in abeyance” until further inspection and investigation was completed.12 Rockford Mutual gave no indication when its investigation would be complete, provided no detailed explanation for allocation of payments and gave no direction for the processing of the claim.13 Rockford Mutual also did not explain why it denied certain damages, did not complete the property investigation, and failed to complete its liability determination.14 In March 2012, Charter filed a complaint with the Illinois Department of Insurance, alleging improper, late payment by Rockford Mutual. That complaint appeared to prompt some additional payments, specifically $18,000 for the business loss and $531,263 for the building loss.15 In June, however, Rockford Mutual claimed that Charter’s proof-of-loss was “premature” because the insured had not yet completed repairs.16 Rockford Mu-

tual also objected to Charter’s proof-of-loss statement at that time, claiming it was excessive.17 Shortly thereafter, in July 2012, the Rockford Mutual adjuster tasked with determining damages and estimating repairs stopped working on the matter entirely, despite not completing the inspection or the cost estimate.18 Charter, on its own behalf and as assignee of Szechwan Garden, thereafter filed a lawsuit,19 initially alleging improper claims practice,20 violations of the Consumer Fraud and Deceptive Business Practices Act,21 and unreasonable and vexatious delay in settling the claims.22 The third (and final) amended complaint filed by Charter in the lawsuit alleged a claim for breach of contract.23 This complaint also alleged that Rockford Mutual engaged in unreasonable and vexatious conduct by (1) failing to promptly acknowledge Charter’s pertinent communications with respect to the claims; (2) failing to adopt and implement reasonable standards for the prompt investigation and settlement of the claims; (3) not attempting in good faith to effectuate the prompt, fair, and equitable settlement of the claims, on which liability had become reasonably clear; (4) compelling Charter to sue to recover amounts due under its policy, by offering substantially less than the amounts ultimately recovered; (5) failing to affirm or deny coverage of the claims within a reasonable time after the proof-of-loss statement was submitted; and (6) failing to pay undisputed amounts owed under the policy. Charter requested a finding that Rockford Mutual had committed unfair claims practices in an unreasonable and vexatious manner and sought a statutory penalty and attorney fees under Section 155 of the Illinois Insurance Code.24 Rockford Mutual made its final pretrial payments on

The Second District’s recent decision in Charter Properties, Inc v. Rockford Mutual Ins. Co. makes clear that policyholders have meaningful remedies when insurance companies act badly.

7 8 9 10 11 12 13 14 15 16

Id. at ¶ 7.

Id. at ¶ 11.

Id. Id. at ¶¶ 10, 11.

Id. at ¶¶ 6, 7, 10.

Id. at ¶¶ 2, 12.

Id. at ¶¶ 12, 13.

Id. at ¶¶ 12, 13.

Id. at ¶ 14.

Id. at ¶ 15.

17 18 19 20 21 22 23 24

Id. Id. at ¶ 16.

Id. at ¶ 17.

215 ILCS 5/154.6, 155.

815 ILCS 505/1 et seq.

215 ILCS 5/155.

Charter, 2018 IL App (2d) 170637 at ¶ 19.

Id. at ¶¶ 19, 20.

March 2019

17

18

the claim in the amounts of $366,489 and $9,212, on June 4, 2013.25 Those payments came 7 months after the original complaint, 1 year and 10 months after the loss, and 11 months after Szechwan Garden reopened for business.26 A jury trial was held on the breach of contract claim in December 2016, five and a half years after the loss.27 Charter’s claims-adjusting expert testified that Rockford Mutual was liable to Charter under the Policy for $1,603,648 for the building repair claim.28 The jury found that Rockford Mutual had breached the insurance contracts, and that it owed Charter an additional $118,006 for the building loss claim and an additional $18,643 for the lost rent claim.29 Rockford Mutual paid the judgments entered on the jury verdicts and did not appeal from that decision.30 The Section 155 claims then proceeded to a bench trial.31 At the bench trial, a claims-adjusting expert for Charter testified that Rockford Mutual did not properly process the claims. He opined that the adjuster’s job was to prepare a damage estimate for the building and personal property, but that he failed to do so.

Without a complete estimate, Rockford Mutual could not calculate its liability, which resulted in breach of the contracts. In other words, according to the expert testimony, the policy placed the burden of determining liability on Rockford Mutual, which improperly tried to shift the burden to Charter.32 One crucial ingredient in Charter’s quest for sanctions was the expert’s testimony that Rockford Mutual also violated an often-overlooked regulation on improper claims practices: 50 Ill. Adm. Code 919.50(a)(1).33 Section 919.50 requires an insurer to affirm or deny liability on a claim within a reasonable time and to offer payment within 30 days after affirmation of liability, if the amount of the claim is determined and not in dispute.34 For those portions of the claim that are not in dispute and for which the payee is known, the insurer shall tender payment within said 30 days.35 On first-party claims, if a settlement offer is less than the amount claimed, or if the claim is denied, the insurer shall provide to the insured a reasonable written explanation of the basis of the lower offer or denial within 30 days after the investigation and determination of liability is completed.36 The explanation shall clearly set forth the policy definition, limitation, exclusion or condition upon which the lower

offer or denial was based.37 Rockford Mutual did not present any expert testimony to rebut the expert’s characterization of the policy or its conduct. Instead, Rockford Mutual simply argued that the proof-of-loss statement prepared by Charter was excessive, and therefore a bona fide dispute precluded sanctions under Section 155.38 At the conclusion of the trial, the court entered judgment for Charter on its claims asserted under Section 155.39 The court found that Rockford Mutual improperly withheld policy benefits resulting in unnecessary difficulties for Charter, particularly that the violation forced Charter to finish construction without knowing what Rockford Mutual would pay.40 The court further concluded that the delay in settling the claims was vexatious because there was no bona fide dispute about coverage.41 The court also credited Charter’s argument that certain correspondence from Rockford Mutual which (1) informed Charter that its claims would be “held in abeyance” pending completion of defendant’s inspection and (2) rejected Charter’s proof-of-loss without providing a lower offer to adjudicate the claims, was evidence of improper claims practice.42 Based on this evidence, the trial court found that Rockford Mutual had engaged in unreasonable and vexatious delay in settling the claims. The court thus awarded Charter, in addition to its contractual damages, $27,692 for “other costs,” $48,784 for attorneys’ fees, and $30,697 in statutory penalties under Section 155.43 The court also awarded $24,148 in prejudgment interest.44 Rockford Mutual then appealed, challenging the trial court’s finding of unreasonable and vexatious delay under Section 155.45 The Appellate Court, in an opinion by Justice Burke, initially addressed the nature of a Section 155 claim, as well as the applicable standard of review.46 The Court noted that some inconsistency existed in the prior case law on the proper standard of review.47 The Court then held that an abuse-of-discretion standard would apply in the circumstances presented, although it also observed that a manifest-weight standard could apply where a case involved contested factual findings.48 Applying that standard, the Appellate Court concluded that the trial court did not abuse its discretion in finding that Rockford’s delay in settling the claims

25 26 27 28 29 30 31 32 33 34 35 36

37 38 39 40 41 42 43 44 45 46 47 48

Id. at ¶ 18.

Id. Id. at ¶ 7.

Id. Id. at ¶¶ 2, 8, 19.

Id. at ¶ 8.

Id. at ¶¶ 2, 21.

Id. at ¶ 21.

Id. at ¶¶ 21, 24.

Id. at ¶ 37.

Id. Id.

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Id. Id. at ¶ 21.

Id. at ¶¶ 2, 22.

Id. at ¶ 22.

Id. at ¶ 23.

Id. at ¶ 24.

Id. at ¶¶ 2, 25.

Id. at ¶ 25.

Id. at ¶ 27.

Id. at ¶¶ 27-34.

Id. at ¶¶ 31-34.

Id. at ¶ 34.

was unreasonable and vexatious and worthy of sanctions under Section 155.49 In reaching its conclusion, the Appellate Court cited Rockford Mutual’s holding the proof-of-loss in abeyance, its subsequent rejection of the proof-of-loss as premature, and pulling its adjuster off the project without completing a final estimate as each contributing to an unreasonable and vexatious delay in handling the claims.50 The Court also observed that the trial court had reasonably relied on the unrebutted testimony of Charter’s expert, who had opined that Rockford Mutual should have completed the inspection and promptly adjusted the claims, and that it was incumbent on Rockford Mutual to estimate the damages and propose a settlement amount.51 The Appellate Court further criticized Rockford Mutual for not promptly preparing an estimate of damages and proposing a settlement amount to Charter.52 The Court held that the insurer’s failure to do so was inconsistent with Section 919.50 of the Illinois Administrative Code.53 Under Section 919.50, the parties’ disagreement over Charter’s proof-of-loss statement required Rockford Mutual to provide a reasonable written explanation to Charter within 30 days after the investigation and determination of liability was completed.54 Because Rockford Mutual neither offered a written explanation for a denial nor completed the investigation and determination of liability within the proper time frame, the Court found that those improper claims practices supported the Section 155 claim.55 The Appellate Court further observed that the practical consequences of the kind of improper claims handling practices in which Rockford Mutual engaged would be to compel an insured to repair damage without knowing the extent to which the insurer would cover the cost.56 The Court rejected such a premise and held 49 50 51 52 53 54 55 56

Id. at ¶ 35.

Id. Id. at ¶ 36.

Id. at ¶ 37.

Id. at ¶¶ 37, 38, citing 50 Ill. Adm. Code 919.50.

Id. at ¶ 37.

Id. at ¶ 38.

Id. at ¶ 39.

instead that an insurer owes a duty of good faith and fair dealing to provide an estimate so the insured can proceed with repairs knowing the scope of coverage.57 Finally, the Appellate Court, having affirmed the award of Section 155 sanctions against Rockford Mutual, further sweetened the judgment by concluding that the case should be remanded with instructions “to assess and award reasonable attorney fees and costs that plaintiff incurred in defending the post-trial motion and this appeal.”58 Specially concurring, Justice McLaren agreed with the outcome of the case but took issue with the Court’s deferential review of the Section 155 sanctions under the abuse-of-discretion standard because, he reasoned, the award was the product of a “mixed question of law and fact” that should be tested under the “clearly erroneous” standard.59 This decision makes clear that policyholders will have available remedies when insurance companies act badly. Practitioners can take a number of practical lessons from the Charter opinion. First, the Court has now clarified that an abuse-of-discretion standard of review typically will be applied to an appeal from Section 155 sanctions, although a manifest-weight standard could apply to contested factual findings.

Second, where there is a disagreement over a proof-ofloss, a property insurer acts at its own peril if it fails to provide a reasonable explanation of coverage within 30 days after its investigation, so that the insured can proceed with repairs knowing the scope of coverage.

Third, improper claims practices will support a Section 155 claim, and resulting sanctions. Fourth, Section 155 sanctions may include an award of fees and costs in connection with a post-judgment motion and/or an appeal. Finally, in every insurance coverage case, policyholders must consider whether they have facts that support a viable extra-contractual claim. With the added deterrent of punitive damages, moreover, insurance companies may think twice before unnecessarily delaying, denying, or limiting claims.

57 Id. 58 Id. at ¶¶ 40-41, 43-44.

59 Id. at ¶¶ 46-50.

Visit the LCBA Website: lakebar.org March 2019

19

Lawyers in the Classroom A Call for Volunteers

I

BY TIMOTHY ROUT

have always been proud of the Lake County Bar Association’s generous pool of members that give back to our community in so many different ways. Whether taking pro bono cases, volunteering for mediation programs, attending fundraisers, or donating to legal aid and other charitable causes, our members are always ready to answer the call for lawyers to serve the public.

T

o those of you looking for a fun and rewarding Law Day proclamation on May 1st to affirm the nation’s way to further this mission of community sercommitment to the rule of law and the rights and privvice, I would like to draw your attention to the ileges that all Americans share. Each year in the weeks upcoming annual “Lawyers in the Classroom” program leading up to Law Day, lawyers visit schools across the for Law Day. Brought to you by LCBA and the Lake United States to teach a lesson related to that year’s County Bar Foundation, this unique Law Day theme. Past Law Day opportunity allows you to be a teachthemes have included Separation of Timothy Rout is er for an hour in a local school.

Powers (2018), the 14th Amendment a staff Law Day is observed every year (2017), Miranda Rights (2016) and attorney to celebrate the role of law in our the Magna Carta (2015). at Prairie society and to cultivate a deeper un The 2019 Law Day theme is “Free State Legal derstanding of the legal profession Speech, Free Press, Free Society.” This Services.

He is amongst students of all ages. Presitheme focuses on these core foundadedicated dent Dwight Eisenhower established tions of U.S. democracy and invites to serving the first Law Day in 1958. In 1961, us to understand and protect these the civil Congress issued a joint resolution rights. As a volunteer, you would legal needs designating May 1st as the official be partnered with a school in Lake of adults over 60 across Lake County, but is date for celebrating Law Day (later County to present to a classroom on looking forward to being a teacher codified at 36 U.S. Code § 113). Every these rights for an hour. Lawyers are for a day in April. president since then has issued a needed in classrooms of all ages and

20 The Docket

March 2019

21

grades from Kindergarten through High School. You get to choose the student age population you would be most comfortable teaching. There is no need to worry if you have not thought about the 1st Amendment since law school. A detailed lesson plan designed by the American Bar Association is provided to you in advance, so you do not need special knowledge or expertise. That being said, you are free to deviate from the curriculum as much as you want to make it your own if you wish. For that hour the classroom is yours, but the teacher is always there with you to provide any needed support. The lesson plans are interactive and include games, activities, and discussion topics to make it fun for both you and the students.

Past LCBA Lawyers in the Classroom volunteers report that the students are typically eager participants and are very engaged with the Law Day guest speakers. (Perhaps because the lesson plans are designed to make it fun, or perhaps because the students are just excited to have a break from their regularly scheduled programming.) You will not be a lecturer, but rather a discussion leader and activity guide. You will find that the students quickly warm up and end up doing most of the talking for you! You can expect a fulfilling experience where the kids will learn from you, and you

will also be surprised at what you will learn from the kids and the unique perspectives they have to offer.

You will surely make a lasting impact on the students in your classroom, and may even inspire some of them to pursue future legal careers.

Classroom presentations this year will take place every day from Monday April 22 - Friday April 26. If you are interested in volunteering in a classroom, simply fill out the Law Day registration form adjacent to this article and drop it off at the LCBA office or email it to info@lakebar.org. Additional forms are available from the LCBA office, website, and eNews emails. On the form you can indicate your availability for dates and times, as well as your age preferences. You can volunteer for as many one-hour presentations as you wish. If you have any questions about being a lawyer in a classroom, please contact the Lake County Bar Association at 847-244-3143 for more information.

Even if you have not always dreamed of a second career as a teacher, I encourage you to take advantage of this unique opportunity to step out of your comfort zone and give it a try. The experience promises to be both fun and rewarding, and you will likely find yourself looking forward to volunteering again next year!

Save the Date Saturday, September 28, 2019, 5 p.m.

Red Mass St. Joseph’s Catholic Church 121 E. Maple Avenue Libertyville, IL 60048

Reception Immediately Following Mass Sponsored by the Justinian Society of Italian-American Judges & Lawyers of Lake County, Illinois If you would like to be a Red Mass sponsor, e-mail RedMassLakeCounty@gmail.com

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25TH ANNUAL FAMILY LAW CONFERENCE Scottsdale, AZ

Thursday, April 11, 2019 Welcome Reception



   

The Scott April 11-13, 2019

Friday, April 12, 2019 4 hours of CLE (8:00 am-Noon) Group Activity Dinner on your own

The Hotel: $274/night (by March 18, 2019) The Scott

Saturday, April 13, 2019  4 hours of CLE (8:00 am—Noon)  Reception  

Call: 1-800-528-7867

Sunday, April, 14, 2019 Group Departure

Provide the Group / Convention Code Lake County Bar Association Family Law 2019

Register online: www.lakebar.org Seminar Tuition: LCBA Member Non– Member

8 hours of CLE # _______ $450 per person 8 hours of CLE # _______ $574 per person

Guests of CLE Attendee , ages 10 and above

# _______ $175 per person

Friday Afternoon Activities: Sip & Savor Walkabout Wine Tour OR Sip & Savior Walkabout AZ Craft Beer Tour Saturday Closing Reception @ Casablanca Roof Top Lounge

# _______ $40 per person # _______ $40 per person # _______ $40 per person

(includes welcome reception, 2 breakfasts)

SEMINAR MATERIALS: I would like my materials to be: Thursday Welcome Reception (Please RSVP if Attending)

_______ Hard Copy ($25) _______ Electronic (no cost) # _______ (No Cost)

TOTAL TUITION $____________ Name: ____________________________________________________________ ARDC # _____________________ Guest ________________________________________ Guest ___________________________________________ Firm: _________________________________________ Address: ________________________________________ City: _________________________________________ State: _______________________ ZIP: ________________ TEL: _________________________________________ E-Mail: __________________________________________ Payment method: □ Check Enclosed

□ AmEx

□ VISA

□ MasterCard

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Card # ___________________________________________________________ Exp Date: __________ CVC_______ Signature: _______________________________________________________________________________________ Return registration form to: Lake County Bar Association 300 Grand Ave STE A Waukegan, IL 60085 TEL 847-244-3143 FAX 847-244-8259

March 2019

23

Board of Directors’ Meeting January 24, 2019

T

he Lake County Bar Association Board of Directors met at noon on Thursday, January 24, 2019 at its office in Waukegan, Illinois. Present were B. Lewis, S. Rice, P. Cornell, S. Parikh, J. Fusz, T. Devine, K. Hatch, D. Del Re, T. Pasquesi, and Executive Director D. Perrin. The meeting was called to order at 12:07 p.m.

CONSENT AGENDA A motion was made to approve the consent agenda, was seconded, discussion ensued, and the motion passed.

TREASURER’S REPORT The Foundation and Association met earlier this week to share thoughts about finances. The Association continues to reduce costs where possible, and continues to reconcile its budget numbers with real-world expense and revenue information. Invoices for accounting services have now been paid, and various tech services were cancelled after the IT audit. Attention needs to turn towards enhancing the revenue side of our operations.

24 The Docket

The EDUCATIONAL PROGRAM FOR YOUTH OFFENDERS The President and Criminal Law Committee Co-Chair Danny Hodgkinson continues to work on the educational program/ video for this project, and they have reached out to potential presenters. This program continues to develop and will likely be a revenue source for the Association.

LCBA EVENT SPONSORSHIPS A proposal has been circulated to set up guidelines for event sponsorships that the committees can use as a guideline. A motion was made to adopt the guideline packages, with revisions, was seconded, discussion ensued, and motion passed.

STAFFING UPDATE Substantial savings have accrued due to the decrease in staff. Dale has reached out to the initial group of people he selected from resumes. A subsequent online ad may be necessary.

INFORMATIONAL ITEMS Spring Membership

Meeting Minutes

BY SHYAMA S. PARIKH SECRETARY

Lunches: The Access to Justice Awards will take place at the March 19 luncheon and voting for Board leadership positions will also take place at that meeting. There will be an option for members to attend the lunch to vote but not eat, if they so choose. We will use tickets for the food. The Liberty Bell awards will take place at the April luncheon. Locations are being considered for the Picnic in May. Promotion of non-LCBA/LCBF events/fundraisers: The Board discussed ways in which we might promote member initiatives that are not LCBA/F related.

The Association is contacted frequently with requests to help promote various charitable endeavors our members participate in.

Ombudsperson: Bernard Wysocki and Fred Foreman have both accepted the position of Ombudsperson and will serve together.

Historically, one of the purposes of the ombudsman program was to offer mem-

bers a confidential forum in which they could encourage people to get help. President Lewis will write an article for The Docket about this position and its use.

Access pass: Security continues to enforce use of the Court Access Pass. Some members have discussed seeking to have the County re-open the old Washington street entrance, and some preliminary discussions have been had with Circuit Clerk Erin Cartwright and the new Sheriff. The Asssociation may be asked to support an effort to advocate for the re-opening of that entrance, but we will need to to gather better information on what the change would involve.

Dues: Some preliminary information was discussed about potential changes to our dues structure, and this is a discussion that will again be addressed at future meetings. The Board will have to consider how it can best generate the dues income that both the Association and the Foun-

dation require to fund their basic operations. Changes to the Foundation dues checkoff are one possibility.

Lawyer Referral Service: Enhancement to the LRS was discussed, both as a member benefit and how it affects the Association’s budget. There are approximately 70 lawyers using the site, and the costs have not been modified for many

years. Some categories have no participants, and others have many, but do not represent communities throughout the county. A committee will work to revise the application, suggest cost changes, and better market the service. In the near future, the Association should explore a better hosting site with an updated web interface.

Appellate Justice Reception: We will again explore an appellate justices reception, if the justices are interested. One idea would be to host it in Waukegan so that the justices could tour both the new court tower, as well as our new LCBA offices.

Judicial Selection & Retention: New members have been added to this

committee. A schedule has been put in place for the upcoming retirement of Judge Scully. The posting will be open until February 18, 2019. If there are new applicants, they will need to be rated and appear before the committee.

A motion was made and seconded to adjourn, and the meeting ended at 1:24 p.m.

Give in to your Instinct to be Generous. continued from page 7

behaving like a drug is not particularly new. The euphoric feeling one experiences when helping others was dubbed over twenty years ago as the “helper’s high.” The term first was introduced by volunteerism and wellness expert Allan Luks to explain the powerful physical feelings people experience when directly helping others.9 Some authors have even equated the sensation to a “mild version of a morphine high.”10 Or, more simply put, the helper’s high seems to be an example of nature’s built-in reward system for those who help others.

With the help of these concepts, we can re-imagine

the implications of a classic tale. The story of Ebenezer Scrooge is well known. I am particularly fond of the Alistair Sim movie version titled “A Christmas Carol.”

Scrooge undeniably is the epitome of selfishness, a quintessentially mean-spirited, miserly, narcissistic old man. Yet as Scrooge discovers the joy of good deeds, he appears to bloom with the “helper’s high,” becomes demonstrably giddy, and his spirit is reborn. And a merrier man had never been seen, as the story goes.

HELP THE FOUNDATION AND EXPERIENCE THE “HIGH” YOURSELF. You have “heard” me say many different times and in a variety of ways that the Lake County Bar Foundation is the philanthropic arm of the Bar Association. Through the Foundation, the Lake County Bar works in many ways to benefit our broader community. However, the Foundation cannot fulfill its mission without help.

Just a few weeks ago, the Foundation received a very nice sized check representing a cy pres award from a class action settlement com-

pleted in Lake County. Judge Berrones, as the presiding Judge, had encouraged the parties to that case to designate the Foundation as the beneficiary of the cy pres funds remaining after all required disbursements had occurred. The Foundation is grateful to Judge Berrones, and to the parties, for the unexpected and generous gift. It will be put to very good use.

There are many ways for you to contribute as well: give of your time, your energy, your treasure, your legacy or even, as these lawyers did, designate the funds left behind at the conclusion of a case for the Foundation. However you choose to do so, remember that you can benefit too.

It may not resemble the pleasure of romantic love, or the euphoria of a mild morphine high (not that I would assume any readers would be familiar with that sensation; perhaps think, instead, of a nice glass of Bordeaux or a fine Scotch). But, scientific studies apparently have shown that when we give to others generously, we are programmed to receive joy in return. Try it. And, perhaps you, too, can experience the “helper’s high.”

by graduate students at UC Berkley and Oregon State University, found that people with a particular variation of the oxytocin gene receptor are more adept at reading the emotional state of others, and get less stressed out under tense circumstances. Their conclusion, in essence – the tendency to be empathetic is, or at least may be, genetic. 8 Generosity, these experiments thus suggest, is not a superior moral faculty that suppresses basic selfish urges. To the contrary, it seemingly is hard-wired in the brain and pleasurable. So, it appears, a fair argument can be made that science has determined that when we give to others bigheartedly, we are programmed to receive joy in return.

A MIRACLE DRUG? The idea of altruism 8

“Oxytocin receptor genetic variation relates to empathy and stress reactivity in humans,” published on line at https://www.ncbi. nlm.nih.gov/pmc/articles/ PMC2795557/.

9

See “Allan Luks’ Helper’s High,” available on line at http://allanluks.com/helpers_high. In his research, Luks looked at the physical effects of giving experienced by more than 1,700 women who volunteered regularly. The studies demonstrated that a full 50 percent of helpers reported feeling “high” when they helped others, while 43 percent felt stronger and more energetic.

10 “The Helper’s High,” Greater Good Magazine, accessed on line at https:// greatergood.berkeley.edu/ article/item/the_helpers_ high.

March 2019 25

What’s the Benefit?

A

s an Association Executive, regardless of the association, the number one, top of mind consideration with virtually every decision is “how does this benefit the members and organization?” The second is “how much will it cost or potentially earn in revenue?”

Generally, members view the value of membership from the number or quality of the events they attend. The number one reason given for not joining or not renewing is “I can’t make it to the events.” This is true in the Bar Association as well as Chambers, Rotary Clubs and other professional organizations.

Attending events unquestionably provides great benefit. If it’s an event that provides Continuing Legal Education (CLE), the benefit is obvious. But there’s also the benefit of the overused word “Networking” which I prefer to think of as “Relationship Building.” Networking for most people has become nothing more than a chance for social chit chat with friends and acquaintances.

It’s a chance to catch up, tell stories (usually about clients or recent cases), have lunch or a glass of wine, and laugh a little. While this is beneficial and enjoyable, the point is missed.

At the next event you

26 The Docket

attend, make a point of sitting next to or introducing yourself to someone you don’t recognize or rarely talk to. Find out about them personally. Start with the obvious questions of where they work, what do they specialize in, how long have they been there or doing this line of work. Then dig a little deeper. Find out what college they graduated from. It might be the same as you – instant connection.

Find out where they grew up. Find out if they have children, and how old. If they are about the same age as yours, there’s another connection. Next time you meet, ask how their kids are doing. People love to talk about their kids. After you’ve made a personal connection, dig deeper into their line of work. Find out if there are challenges they’re dealing with that you might be able to help with.

If not you, perhaps you know someone who could help. These are things they will remember and think highly of you for. Even if you can’t help the fact that you listened and offered a sympathetic ear will be appreciated and remembered.

When you are in need of assistance, they will be there for you. This is how true networking works. It’s not about gathering business cards to solicit later.

Other benefits that are

In the

Director’s Chair

often overlooked include free use of our beautiful new office particularly for those of you without an office in Waukegan. If you have some time to kill before appearing in court, hang out here. It’s comfortable, warm and quiet. We offer free WiFi, daily newspaper, copies, coffee, soft drinks, and even $3 beer or wine if you like. Need a private, comfortable place to meet with a client(s) before court? Book our conference room that seats 16. Want to host a reception for your office? Book our Member Center (for a small fee if after hours). If there’s no parking in the lot next to the courthouse, park for free in our parking lot. It’s only 1 ½ short blocks away.

I could fill up another page or two of benefits of belonging such as marketing opportunities through sponsorships, leadership development through chairing a committee or serving on the board, recognition by

BY DALE PERRIN

your peers, influence in the legal community by voicing your opinions on who is appointed as a judge, and many more. Unfortunately, I don’t have the space to elaborate on all of them.

But I do want to touch on one extremely important benefit that isn’t considered until it’s gone. That’s the benefit of “being in the know.” Just this week I was contacted by someone who choose not to renew earlier this year (because they couldn’t attend events), wondering why, actually they came across slightly upset, they were not receiving our weekly emails, and specifically why they weren’t notified of Judge Cornell’s swearing-in ceremony. I explained that receiving these emails was a benefit of membership. Only active members are on the distribution list. You may not give these emails a second though. In fact, you might continued on page 28

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What’s the Benefit continued from page 26

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 (Odd Mo.) Docket Committee

LCBA

12:15-1:15

2nd Tuesday

Waukegan Courthouse 12:15-1:15

Criminal Law

2nd Tuesday (Odd Mo.) Immigration

LCBA

4:30-5:30

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

5:30-6:30

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

3nd Wednesday

Trusts and Estates

LCBA

12:15-1:15

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.

28 The Docket

even consider them annoying sometimes due to the frequency. But once they stop coming, and you find out after the fact something that you wish you had known, like a judge swearing-in or courtroom reassignments, or the passing of someone who influenced your career when you were young, the benefit becomes obvious.

The Bar Association and Foundation hosts plenty of events for you to attend. But we are so much more than an events organization. I urge you to look beyond our events and consider all the other services and opportunities we offer. If there’s something we don’t currently do or offer, please suggest it.

But be prepared to answer these two questions: How does it benefit our members and the organization? And what will it cost?

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