Two Great ISBA Member Benefits Sponsored by
A Value of $1,344, Included with Membership

Illinois Bar Journal

On January 25, 2017, Illinois State Representatives Will Guzzardi, Steven Andersson, and Tom Demmer introduced HB 689. The bill, which has bipartisan support and 14 other co-sponsors, would amend various asset-forfeiture statutes to increase fairness to property owners, increase transparency in the forfeiture process, and remove financial incentives that encourage police and prosecutors to seize citizens' property.

Civil forfeiture is heavily used under current Illinois law. Unlike criminal asset forfeiture, civil forfeiture does not require a criminal conviction before an individual's property can be taken by the government. In some situations, property owners may not be aware that a forfeiture proceeding is taking place because the case is brought in rem. HB 689 would change that.

The bill's changes are in line with recommendations by two strange ideological bedfellows, the American Civil Liberties Union of Illinois and the Illinois Policy Institute. The two organizations recently produced an article examining asset forfeiture in Illinois and proposing reforms for the existing system (read it at

Find out more about the bill in the March Illinois Bar Journal.

Beginning next year, lawyers who don't carry malpractice insurance will have to complete a four-hour assessment of their ethical knowledge and management practices.

Each year, the ARDC requires Illinois attorneys to report whether they or their firms carry malpractice insurance. That information is made public via the ARDC's website, although a prospective client may not know the website exists, let alone that it provides such information. On January 25, 2017, the Illinois Supreme Court amended Rule 756(e) by implementing "proactive management based regulation" (PMBR). The new rule will require attorneys who do not carry malpractice insurance to complete a four-hour interactive, online assessment of the operations of their firm. The assessment is based on both ethical rules and best business practices. It will be conducted every two years, beginning in 2018. (For more about PMBR, see the June 2016 Illinois Bar Journal cover story.)

According to James Grogan, the ARDC's Deputy Administrator and Chief Counsel, 41 percent of solo practitioners in Illinois do not carry malpractice insurance. There are roughly 13,500 solo attorneys in the state, which means some 5,500 practice uninsured. What's more, nine percent of small firms do not maintain malpractice insurance policies.

For about a dozen years after Kerry Lavelle founded his namesake law firm a quarter-century ago, he was based in the loop and took what cases he could find, enjoying steady success that enabled him to grow the firm to five lawyers, which he took pride in at the time.

About 13 years ago, he moved the firm to northwest suburban Palatine and undertook a change in direction aside from geography. "I took a very different approach: I built a business plan, and with the right discipline, we really grew the firm, and we now have 24 attorneys," says Lavelle, who will speak in Moline March 31 at the ISBA Solo and Small Firm Practice Institute on "Build It and the Profit Will Come: Simple Steps to Building Your Business Plan."

Lavelle didn't just throw himself into this exercise blindly. "I read a lot of business books, and I realized there's more to a business plan than just the pro forma financials," he says. "A business plan is a model to really touch on all the necessary elements of the business going forward. And if you stick to those goals and those truisms, you will be successful."

A business plan can help lawyers flesh out their ideas, and in some ways the journey is more enlightening than the destination, says Debbie Foster, partner at Affinity Consulting Group, who helps law firm clients put business plans together.

Consumers go online to rate restaurants, hotels, retail businesses, and home services. Specialized sites have sprung up to rate teachers, professors, doctors, and other professionals. So why should lawyers be an exception?

In fact they're not, and for that reason they need to promote - and defend - their reputation online much as they do in physical space, although the specific concerns and methods may differ. To begin with, attorneys need to claim and populate their page on the legal website Avvo, while promoting themselves elsewhere on other social media, says Stephen Fairley, CEO of The Rainmaker Institute.

"It's better to play offense than defense," he says. "It is not a matter of if you will get a negative review, it is a matter of when. Eventually, someone is not going to like what you did. It's better to take a proactive approach. We are in the consumer review economy. You can't get away from it. It is what it is. Let's deal with it." Find out how to respond to negative reviews in the February Illinois Bar Journal.

Want to get paid faster? First, always walk your client through the initial bill. Second, don't omit details or use shorthand abbreviations on your bills. Third, never delay sending your bill -- especially after a favorable outcome. Fourth, make it as easy as possible for your client to pay you (e.g., via credit card). Finally, the only thing better than being paid immediately after sending a bill is being paid in advance via a security retainer or an advance payment retainer. Find out more from the Clio blog and the September Illinois Bar Journal.

Recent amendments to the Illinois Marriage and Dissolution of Marriage Act create a formula for calculating spousal maintenance that factors in the spouses' incomes and the length of their marriage. The amendments also affect child support because an increase in maintenance now corresponds to an -- often dramatic -- child-support decrease.

The new maintenance formula is triggered only if a judge first determines that maintenance is appropriate, and only if the combined gross income of the parties is less than $250,000 and no multiple family situation exists.

But though the formula was supposed to make outcomes more consistent, the statutory language creates its own puzzles. Questions about how to calculate gross income, the implications of deviating from the guidelines, and other factors are probably headed for the reviewing courts. Find out more in the September Illinois Bar Journal.

In a case that has drawn national attention, the Illinois Supreme Court recently ruled that Comcast must release to the plaintiff identifying information about the till-then anonymous online defendant in a defamation lawsuit.

In Hadley v. Subscriber Doe, the court considered what a plaintiff must show to compel the release of an Internet subscriber's identifying information. The court's ruling focuses on the tension between the right of an individual to speak anonymously and the "necessity" component of Illinois Supreme Court Rule 224, which allows a plaintiff to conduct discovery to identify a responsible party. It ultimately held that if a defamation claim can survive a section 2-615 motion to dismiss, then a plaintiff has demonstrated necessity sufficient to trigger Rule 224. See the August Illinois Bar Journal for more on the ruling.

On August 3, On Monday, the attorney for the defendant filed a motion to stay with the U.S. Supreme Court to preserve his client's anonymity.

On June 1, 2015, civil juries will change in size from 12 members to six. The change in jury size, mandated by Pub. Act 98-1132, has led to two interesting discussions - whether a six-person jury requires new litigation strategies and whether the change in jury size is constitutional.

"We've had a 12-person jury going back to 1818, when Illinois was admitted to the Union," says Robert T. Park of Moline. Article I, Section 13 of the Illinois State Constitution states that "the right of trial by jury as heretofore enjoyed shall remain inviolate." Park wonders whether cutting jury sizes in half after almost 200 years "harms or changes" the right to trial by jury.

But Chicago personal injury lawyer Joseph A. Power says that the Illinois Supreme Court's decision in Wright v. Central Du Page Hospital Ass'n found that as long as the essentials of a right to trial by jury are not undermined, legislators can shape the contours. Find out more from Matthew Hector's article in the March Illinois Bar Journal.

On November 12, 2014, Sonoko Tagami sued the City of Chicago alleging that section 8-8-080 of the city's municipal code is impermissibly vague, representing an unconstitutional infringement on her First and Fourteenth Amendment rights.

Titled "Indecent Exposure or Dress," the ordinance prohibits women from exposing to public view "any portion of the breast at or below the areola." Women are required to cover their breasts with an "opaque covering." The ordinance does not prohibit men from being topless in public. Tagami was issued a notice of ordinance violation on August 24, 2014 when she was participating in "Go Topless Day," an annual event where women go topless in public to express their view that women, like men, should not be prohibited from appearing bare-chested.

In some high profile cases nationwide, jurors have used social media while they're impaneled and been punished by the court. In other cases, judges have resorted to draconian measures to prevent the practice from happening in the first place.

But a recent study by two Chicago judges and an associate at a large Chicago law firm suggests that such punitive measures are unnecessary. Of the nearly 600 jurors they surveyed, most said they were not tempted to use social media. And those few who were tempted said they understood and respected the judge's instructions not to communicate about the case by any means.

The study, spearheaded by U.S. District Judge Amy St. Eve, who sits in the Northern District of Illinois, was conducted over three years by surveying jurors who heard civil and criminal cases in St. Eve's courtroom and those who heard criminal cases in the Chicago criminal courthouse before Cook County Circuit Judge Charles P. Burns, another study co-author. Michael A. Zuckerman, formerly a clerk for St. Eve and now an associate at Jones Day in Chicago, also participated in drafting the study's findings. Find out more in the July Illinois Bar Journal.