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

Practice News

Watch for Helen Gunnarsson's LawPulse item in the not-yet-published August Illinois Bar Journal about a scam e-mail solicitation that's making the rounds. Helen will have details, but in the meantime you can read a year-old California Bar Journal article describing this "request for Legal assistance," purportedly from a Chinese textile company. Thanks to Springfield paralegal Caren Mansfield, who alerted ISBA to the scam and the CBJ article.
In a recent column for the Law Technology News, veteran lawyer and legal-tech writer Bob Ambrogi compared the two leading bar-sponsored legal research services, Fastcase and Casemaker. As he notes, Casemaker partners with 28 bars representing 475,000 lawyers, while Fastcase is offered by 17 state and other bars -- including the Illinois State Bar Association -- representing 380,000 lawyers. His conclusion? "[B]oth are worthwhile services with many similarities. In the coverage of federal and state libraries and the relative strengths of their search tools, neither stands out as significantly superior to the other. But in their intuitiveness and ease of use, Fastcase has the clear edge." Read his review.
The rumor mill is spinning that effective July 1, 2009, Medicare Set-Aside (MSA) trusts are required for liability litigation as is already required in worker’s compensation. (Reimbursement by a plaintiff for previously paid benefits to Medicare is unchanged by the new law.) Although federal research is not my strong suit, I can’t find any support for this proposition. My best guess is that this rumor started because of the new § 111 reporting requirements included in the Medicare, Medicaid & SCHIP Act of 2007. (Public Law 111-173). Section 111 provisions are reporting requirements and do not mention any need for MSAs in liability cases. This new law simply requires those paying  for judgments to report to Medicare payments of settlements, awards, judgments, or other payments. An argument is being posited that the previous law still in effect already requires MSAs in personal-injury cases for future medical expenses. (Medicare Secondary Payer Act). I cannot find any clear authority supporting that proposition.
Helen Gunnarsson reports in the July Illinois Bar Journal about SB 0189, which amends the Open Meetings Act, the Freedom of Information Act, and the Attorney General Act. "Though its supporters hail the bill as transparency legislation that will make it easier for citizens to gain access to records that are supposed to be public, critics wonder whether the new system will have its own shortcomings," she writes. Read the article.
If you do any estate-planning work and have at least one client of means – a small-business owner, say, or a farmer or other landowner – you’ll want to familiarize yourself with Senate Bill 2115, Illinois’ spanking new QTIP legislation. “[The Illinois QTIP law] allows married couples with estates of more than $2 million to set up a QTIP trust (“qualified terminable-interest property trust”) to use marital tax deductions to defer estate taxes until both spouses are deceased,” writes ISBA Director of Legislative Affairs Jim Covington in the upcoming (August) issue of the Illinois Bar Journal. The law, which will take effect as soon as the governor signs it, started life as HB 255 only to end up as a senate bill. It’s a response to the "decoupling" of the federal and Illinois inheritance tax. The federal and Illinois tax used to kick in at the same dollar amount, but last January the federal exclusion went up to $3.5 million while the Illinois tax continues to apply to estates of $2 million or more.
As Helen Gunnarsson will report in more detail in the August Illinois Bar Journal, a fresh burden for lawyers is on the horizon, and the ABA, ISBA, and other bar associations are objecting on their members’ behalf. Effective August 1, a new FTC rule will oblige most lawyers to develop written protocols to detect and address the “red flags” of identity theft. As the ABA says in its statement about the rule, applying it to lawyers “would impose an undue burden on law firms, especially solo practitioners, and would accomplish very little.” Rockford lawyer J. Joseph McCoy summarizes the rule and its implications for lawyers nicely in his article “FACTA’s ‘Red Flags’ Rule May Apply To Law Firms,” which appears in the June 2009 issue of the ABA’s GP/Solo Technology eReport. The general FTC site has a helpful page consolidating its Red Flags Rule resources.
In part because of the steadfast efforts of Sen. Richard J. Durbin, $10 million was included in the Senate CJS Appropriations bill for the John R. Justice Prosecutor and Defender Incentive Act. This loan forgiveness program requires balance in awards between prosecutors and public defenders and equitable distribution across the states. This is less than the full $25 million authorized, but it's unusual for a new program to get full funding. It now goes to a joint House-Senate conference committee for final markup.
As Helen Gunnarsson reports in the July Ilinois Bar Journal, "lawyers with file drawers or boxes of original wills for long-lost clients may rejoice: there’s finally a way to get them out of the office. Assuming a new bill is signed into law, the Illinois Secretary of State will take them off lawyers’ hands – for a small fee, of course." The law was drafted by ISBA Trusts and Estates Section Council member Ray Koenig.
Last week the Supreme Court of Illinois issued new Illinois Rules of Professional Conduct to take effect Jan. 1, 2010. New Rule 3.9 has created quite a buzz among the lawyer-lobbyists as to what it means. It may have broader applicability than those of us who lobby in Springfield to include appearances before other governmental bodies. The Rule states that “A lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5.” The incorporation of Rule 3.5 creates the buzz. Rule 3.5 prohibits ex parte communication with an official during the proceeding. Can this be construed to prohibit all lobbying by a lawyer-lobbyist unless it is part of a scheduled public hearing? In other words, is all I can do to lobby is testify in committee? No position papers to elected members of the General Assembly? No one-on-one individual lobbying? I can’t imagine that was the intent. Rule 3.5’s title is “Impartiality and Decorum of the Tribunal.” Key word is “tribunal.” It is defined in Rule 1.0(m) as follows: “Tribunal” denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity.
Illinois State Bar Association General Counsel Charles Northrup highlights two of what he thinks are the most important changes from today's Illinois Supreme Court adoption of the New Rules of Professional Conduct for Lawyers:
  • "One of the most significant, if not the most significant, aspect of the adopted Rules is that they contain official comments. The comments give attorneys a readily accessible interpretation and explanation of the intent of the Rules. It will be an additional and important guide for lawyers when they are determining what their ethical obligations are."
  • "Another important aspect of the new Rules is the treatment of the Dowling case and the issue of flat or fixed fees. Many practioners were concerned about the treatment of these types of fees under Dowling and whether they fell within the definition of 'advanced payment retainers.' The new Rules clarify that flat or fixed fees are not advanced payment retainers, a position that was advocated by the ISBA."
More highlights from the Supreme Court's New Rules of Professional Conduct for Lawyers Announcement for the New Rules of Professional Conduct