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Practice News

According to John Phipps in the latest General Practice, Solo and Small Firm newsletter, three clauses should be part of every fee agreement: 1) one addressing what happens when you're sick, on vacation or otherwise unavailable; 2) one specifying that you aren't guaranteeing results; and 3) one pointing out that you can't estimate costs you don't control (e.g., costs driven by the other party's behavior). Find out more, including the specific language John recommends.
Public Act 96-707 (Haine, D-Alton; Turner, D-Chicago) provides for a hearing to be held when a juvenile with a first-offense misdemeanor turns 18 or upon completion of the sentence, whichever comes later. If local prosecutors do not file objections, expungement will be automatic. The limited objections that may be considered by a judge include the following: (1) if the arrest was for a homicide, an offense involving a deadly weapon, a sex offense, or aggravated domestic battery; (2) if the offense for which the minor was arrested is still under active investigation; or (3) if the minor is a potential witness in an upcoming court proceeding. Public Act 96-707 also prohibits the transfer of confidential juvenile arrest records from the State police to the Federal Bureau of Investigation to prevent the unnecessary release of confidential juvenile data. Effective January 1, 2010.

In the September issue of Child Law, Margaret C. Benson describes the shortcomings of current guardianship law and an ISBA legislative proposal designed to address them.

"Traditionally, minor guardianships were fairly simple cases, necessary when parents died or were temporarily unable to care for their children, " Benson writes. "Most cases were uncontested. The statute was designed to be 'easy in, easy out,' with a simplified process and fill-in-the-blank forms.

"About a decade ago, however, everything changed. Probate judges found themselves inundated with increasingly complex and bitter contested minor guardianship disputes, caused by a confluence of factors, including a significant shift in DCFS policy and a seismic cultural change.

The law as written is simply inadequate to the new reality, Benson writes. "In its current form, the Probate Act does not adequately protect the rights of parents or children. For instance, the statute does not contain any provisions for a parent to petition to terminate the guardianship. In addition it uses the undefined term 'fitness' to determine if a guardian should be appointed for a child. This leaves parties, attorneys and judges without guidelines to determine when a guardianship should be granted and when it should be terminated."

In response, Benson and other ISBA members have crafted a legislative proposal that would bring guardianship law up to date. Find out more about it.

Currently, the Federal Government and most states do not tax income of partnerships, “S” corporations, and limited liability companies (LLCs) that elect to be treated as partnerships. Instead, the income is taxed after it flows through to individual partners or shareholders. Illinois has followed this practice for regular income tax purposes but does tax these entities with a “personal-property replacement-income tax.” Illinois has allowed “S” and “C” corporations to deduct compensation paid to owners, but partnerships are not allowed to do so. To treat partnerships in the same way as S and C corporations, Illinois has allowed partnerships to deduct a portion of their distributable income that represented reasonable compensation. Public Act 96-45 changes this tax policy effective for tax years ending Dec. 31, 2009 for the personal-property replacement-income tax. It limits partnerships’ deduction to “guaranteed payments” instead of “reasonable compensation.” The difficulty is guaranteed payments for federal purposes is limited to payments made regardless of the profitability of the partnership. This would generally limit the deduction to income partners because equity partners’ income is based on their share of distributable income of the partnership. Public Act 96-45 will affect personal-service partnerships such as law firms, accounting firms, private equity, and investment fund managers because almost all of the distributable income to the equity partners represents the personal services of the partners. Since these distributions cannot be categorized as guaranteed payments, the partnerships may have significant taxable income for Illinois replacement tax purposes.
David Eldridge's review of 2009 state and local tax-law changes -- property tax, income tax, sales tax, the whole shootin' match -- is in the latest issue of Tax Trends, newsletter of the ISBA's State and Local Tax Section.
In the latest ISBA Corporate Lawyer, Frank Grenard nicely summarizes the much ballyhooed beefing-up of the Illinois Freedom of Information Act. The changes take effect January 1. As Frank notes, excuses for noncompliance will be harder to come by. "[T]he Act provides that irrespective of added cost to comply and technological advances, public records 'shall' be made available upon request except when denial of access furthers the public policy underlying 'a specific exception.'” And the new process will be more requester friendly, he reports. "The Act will prohibit public agencies from requiring the use of individualized FOIA forms, nor can the public agency require the requester to disclose the purpose for the request." Read all about these and other elements of the new FOIA law.
The American Bar Association filed suit today asking the federal courts to bar the Federal Trade Commission from enforcing its “Red-Flag Rule” against practicing lawyers that is to take effect Nov. 1, 2009. The FTC established the Red-Flag Rule to require certain “creditors” to develop and implement written programs to identify, detect, and respond to the warning signs (“red flags”) of identity theft. The FTC plans to apply this Rule to lawyers and other service providers such as doctors, dentists, and accountants. The ABA and other associations do not believe that these groups engage in the kind of commercial activity that was intended to lump them in with creditors as intended by this Congress. The ABA complaint, filed in the District Court in the District of Columbia, may be viewed at this link: http://www.abanet.org/media/nosearch/1_1_Complaint.pdf
Generally, immediate effective dates are a nightmare for those who must enforce, administer, or implement a new law. Three recent public acts with immediate effective dates amend the Residential Real Property Disclosure Act, the Health Care Surrogate Act, and the Voluntary Acknowledgment of Paternity Form. This is a short summary of all three. Residential Real Property Disclosure Act. Public Act 96-232 (Smith, D-Canton; Sullivan, D-Rushville) requires the seller to disclose whether the property has been used for the manufacture of methamphetamine. Effective Aug. 11, 2009. Health Care Surrogate Act. Public Act 96-492 (Wilhelmi, D-Joliet; Ryg, D-Vernon Hills) does two things. (1) Requires that a health-care facility permanently maintain any advance directive of a patient or authorized person. (2) Authorizes a surrogate to make decisions for the patient until removed by the patient who regains decisional capacity, a guardian of the person is appointed, or the patient dies. Effective Aug. 14, 2009. Voluntary Acknowledgment of Paternity Form. Public Act 96-333 (Martinez, D-Chicago; Mell, D-Chicago) does three things. (1) The voluntary acknowledgment of paternity form prepared by Health and Family Services must be the same form in child-support collection or under the Vital Records Act. This form must inform the mother and putative father that they have the right to request DNA tests for paternity, and if they sign this form that they waive this right. This part of the form must be in boldface capitals and letters not less than 0.25 inches tall.
Public Act 96-615 (Schoenberg, D-Evanston; Hoffman, D-Collinsville) creates the Public Interest Assistance Act to reimburse public-interest attorneys for debt incurred for attending undergraduate and law school. “Public-assistance attorneys” includes assistant state's attorneys, assistant public defenders, assistant attorney generals, assistant public guardians, and legal-aid providers. Loan repayment may be up to $6,000 per year to a maximum of $30,000 for the attorney's career. These bills simply create the program, and the General Assembly must appropriate funds to implement later. Effective January 1, 2010. Click here to read the full legislation.
Ungaretti & Harris LLP announced today that Litigation Partner Michael A. Ficaro has been named Chair of the firm's expanding Gaming Practice. Illinois lawmakers recently passed legislation legalizing video lottery in the state. "This new gaming industry will distribute up to 45,000 electronic devices in bars, restaurants, and fraternal and charitable locations. That means 9,000 new licensees, plus manufacturers, distributors, and terminal operators who will all need legal counsel," said Mr. Ficaro. Lawyers in the Ungaretti & Harris Gaming Practice will work in conjunction with its Sports and Entertainment and Government groups in order to meet the needs of this rapidly expanding industry. Mr. Ficaro is a member of the International Masters of Gaming Law and serves on the Board of Governors of the International Society of Barristers. Among his many distinctions are inclusion in: Illinois Super Lawyers every year since 2005 when he was named in the Top 100 of Illinois Super Lawyers for Litigation; Best Lawyers in America for Gaming Law (2006-2010); Gaming's Legal Eagles: A Guide to the World's Pre-eminent Gaming Attorneys; Leading Lawyers Network for Commercial Litigation, Criminal Defense, White Collar Defense, Gaming (2004-2009). Mr. Ficaro was formerly the First Assistant Attorney General of Illinois and the Chief of Criminal Division of the Cook County State's Attorney's Office.