Recent activities of the SOGI committee include adoption of a recommendation to the ISBA Board of Governors that led to leadership in sponsoring a resolution in the ABA House of Delegates concerning victim assistance compensation.
The resolution urges that in all levels of government, an unmarried surviving partner in a committed relationship be treated in the same manner as a surviving spouse for purposes of terrorist or crime victim compensation and assistance. The ABA House passed the measure in August.
Other committee programs in the planning stages include future networking events throughout Illinois and effective participation by members in other state bar association entities.
Government lawyers grapple with ethics issues
Counsel conflict, substance abuse are panel topics
By Jeff Cappel
Not every ethical question is easily resolved. If you don't hold onto the rules of ethics and ethical behavior, then your life as an attorney becomes hard very quickly.
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With those words, Sharon Elizabeth Pandak got the attention of government attorneys who attended the recent luncheon seminar, "Ethical Considerations in Public Sector Law," in the ISBA Chicago Regional Office.
Sponsored by the ISBA Committee on Government Lawyers and the American Bar Association Government and Public Sector Lawyers Division, the program departed from the standard seminar lecture format.
Instead, it was presented with role-playing in a series of skits. Post-situation analysis was conducted by James J. Grogan, chief counsel for the Attorney Registration and Disciplinary Commission.
Pandak, the attorney for Prince William County, Va., and chair of the ABA section's CLE committee, cautioned that "We hope you don't encounter the ethical situations you'll see here, but they're presented because we hear they come up quite frequently."
One situation titled "People v. Marvel" involved a fictitious Governor Marvel, played by Lynn E. Patton of Springfield, the ISBA committee's newsletter co-editor.
Patton's staff counsel was Don Diligentts, portrayed by committee member Paul A. Logli of Rockford, state's attorney for Winnebago County. Marvel and Diligentts discussed proposed legislation on campaign finance reform, and Diligentts agreed to make changes to the draft.
Marvel informed Diligentts that she was being investigated by the U.S. attorney's office for possible campaign finance violations. She handed her campaign finances file to him and asked him what she should do.
Diligentts agreed to study the material. Later he received an inquiry from the governor's chief of staff as to when the changes to the legislation would be ready.
Then he received a call from "Assistant U. S. Attorney Jane Warrant," played by committee member Kathryn A. Kelly, who threatened to subpoena him to obtain evidence against Marvel.
Questions and answers
Should Diligentts give Marvel advice on the investigation? Can he advise her on legislation changes? Could he have avoided this situation?
Answers by the audience to these and other question varied. One person suggested that he could examine the papers as they related to the operation of government.
"I would tell her that she needs to hire a lawyer to advise her on this," said another audience member.
"But what happens when she says, 'You are my lawyer,'" Grogan asked. "You're counsel to the governor."
"Well, that's a dilemma," was the replay. "But maybe if there was an ethical rule that forbade government lawyers from given advice on political campaign activities. he could just tell her that he wasn't allowed to give such advice."
What about the issue of whether Diligentts could advise Marvel about the legislation after she revealed the investigation to him?
"Regardless of whether he looks at the documents, he can still advise her," one audience member offered. "If he tries to tailor the legislation to benefit her, it's not like they're God and they're writing the rule. It still has to be approved by the legislature."
Written analysis of the situation in the seminar materials suggested that Diligentts "may not have a reasonable choice in this matter." Since he's a public lawyer and not the governor's private one, he shouldn't give advice regarding the federal probe.
This advice probably wouldn't be entirely protected under attorney-client privilege, but "only to the extent that it relates to advice to the governor as a public official."
The materials further suggested that Diligentts "should have reached a clear understanding with the governor as to the parameters of his legal representation of her, and that it did not include personal matters. However . . . it is often difficult to draw that type of line in the gray area between personal and official matters."
The Illinois perspective
Grogan added that "the interesting thing about this situation is the role of the lawyer who serves someone who controls an office and what their relationship is.
"We're lucky in Illinois, because we have a precedent in a case like this," he said, "and there's only a similar precedent as it dealt with the Clinton administration receiving a grand jury subpoena.
"The 7th Circuit handed down a decision last April that dealt with the authority of a criminal subpoena as part of Operation Safe Road," Grogan added. "There is a discussion of the distinction between criminal law and civil law."
Pandak suggested that "if you have a very close relationship with a client like Governor Marvel, you really ought to be fair to that client. Tell (him or her) in advance, before this issue arises, that you shouldn't be confided in because potentially serious legal issues might arise."
To report, or not to
In another situation, called "Tumbling After," committee chair Charles W. Gunnarson of Springfield played Jack, a public defender who began drinking after his son's suicide and separation from his wife.
Because of his drinking, Jack was tardy for several court dates, left work early because of a hangover, and filed a motion for reconsideration a day past the deadline. The judge denied the motion on the merits without a hearing and without addressing the timeliness of the motion.
Jack's law school friend, Jill, was played by Maureen F. Essex, a Maryland public defender and past chair of the ABA section. Jill covered for Jack on several occasions and wasn't sure if she should report the problem to disciplinary counsel, or whether she had an obligation to Jack's clients?
One audience member said he'd like to try to get help for Jack before reporting him, an action that might cause him to lose his job. Essex said that he'd already had a late filing, so she asked how much more was needed before action was took. "Maybe a little more," was the reply.
While Grogan said that the standard is the inability to perform law, it also involves the conduct that triggered any obligation to report.
"Illinois rules and the model rules are similar," he said. "Historically, it's interpreted as moral turpitude-type offenses - lying, cheating and stealing. But the rules are broader than most people think because they talk about fitness."
Logli said that Jack is still fit to practice and that the matter wouldn't be appropriate for the ARDC. "The question is, what has he done? What rules has he broken, and what other violations has he committed?"
Answers included possible competence, diligence and negligence issues.
"I think you've got do whatever you can with Jack personally," Logli said, "and if that fails, then you go to a supervisor. And that supervisor can really be hauled in on a problem if he's not exercising supervisory authority, and if he doesn't know what's going on and the other members of his office aren't telling him."
Written analysis of this situation suggested that Jack should ask his supervisor for caseload reassignment because he isn't able to perform competently. It further suggests that Jill should notify her supervisor about Jack's problem because, by covering for him, she is guilty of misconduct.
Real estate update among remaining CLE seminars
ISBA Real Estate Law Section will present a practice update as a Law Ed Series seminar Thursday, Nov. 21, in the Radisson Hotel, Bloomington. The moderator is section council member Mary Lou Lowder Kent of Land Title Services of Illinois, Springfield.
Council vice chair Samuel H. Levine of Arnstein & Lehr, Chicago, and past chair Myles L. Jacobs of Brumund & Jacobs, Joliet, both ISBA Assembly members, are program coordinators, along with council member Ted M. Niemann of Schmiedeskamp, Robertson, Neu & Mitchell, Quincy.
The seminar will begin at 9 a.m. with introductions by the moderator. The schedule of topics and speakers follows
9:10 a.m. Legislative Update, with Mary Lou Kent, and Case Law Update, with past chair Steven B. Bashaw of Oak Brook and section council member Joseph R. Fortunato Jr. of Fortunato, Farrell, Davenport & Arnold, Westmont, an Assembly member and president of the Illinois Real Estate Lawyers Association.
10 a.m. Residential Surveys, with Richard F. Bales of Chicago Title Insurance, Wheaton, associate newsletter editor.
10:45 a.m. Title Endorsements, with Tom Paige of Chicago Title Insurance, Joliet.
11:30 a.m. What You Always Wanted to Know About Obtaining that Loan (speaker to be announced). Noon luncheon period follows.
1:15 p.m. Recent Developments in Mortgage Foreclosure Law, with section council member Gregory J. Moody of Codilis & Associates, Darien, and Samuel Levine.
1:45 p.m. Inspection in Real Estate: What Do You Know About the Various Inspections? Speaker to be announced.
2:45 p.m. The Role and Responsibility of the Real Estate Attorney in the Real Estate Transaction, a panel with Myles Jacobs as moderator. Speakers include Mary E. Faupel of Eureka, a member of the Real Estate Law and Trusts and Estates Section Councils.
3:30 p.m. Mold Litigation, with William J. Anaya of Arnstein & Lehr, Chicago, associate newsletter editor.
4:15 p.m. Recent Developments in Eminent Domain, with section council member Brian P. Liston of Liston & Lifakis, Chicago, a member of the Assembly.
An ISBA Law Ed Series seminar, "Administrative Hearings Before Local Government Agencies," will be conducted by the Administrative Law Section Council from 9 a.m. to 2:30 p.m. Monday, Nov. 25, at the Marriott Hotel, Oak Brook.
Section council member Bernard Z. Paul of DeKalb is the program coordinator and moderator. The seminar will begin with a discussion by Patrick A. Locansky of Klein, Thorpe & Jenkins, Chicago, on Disciplinary Hearings Before Civil Service Boards, with Emphasis on Police and Fire.
At 10:15 a.m., Ronald S. Cope of Ice Miller, Chicago, will review Administrative Hearings Involving Zoning. At 11 a.m., Wheaton attorney Irene F. Bahr, a member of the ISBA Board of Governors, will explore Liquor Hearings Before Local Liquor Control Officers.
After the 11:45 a.m. luncheon period, the seminar will conclude with the 1 p.m. presentation on Hearing Procedures in Municipal Administrative Gearing Officer Proceedings. Speakers are Kathleen F. Orr of Chicago and Matthew W. Beaudet of the City of Chicago Department of Administrative Hearings.
"Negotiation and Conflict Resolution for Lawyers," an ISBA Master Series seminar, will be presented from 8:30 a.m. to 4:15 p.m. Friday, Nov. 22, in the Chicago Regional Office.
The program will be conducted by Law Prof. Gerald Williams of Brigham Young University from the perspective of an experienced authority who has carefully researched the art of learning to negotiate.
A member of the Editorial Policy Committee of Negotiation Journal, Williams is the author of the West textbook, "Legal Negotiation and Settlement," and a former member of the ABA Committee on Dispute Resolution.
Presentation highlights include the concept of anchoring and determining who should make the first offer, and the influence on strategy of distributive vs. integrative case structure.
Williams will begin with a discussion of The Framework of Negotiation as he provides concrete strategies that can be adapted as the practitioner perfects the art.
At 10:15 a.m., he will describe Characteristics of Highly Effective Negotiators and The Four Psychological Factors in Legal Negotiation.
After lunch, a video demonstration, "Typical Problems in Legal Negotiation," will begin at 1 p.m. The closing topic as 2:45 p.m. is Resolving the Most Frequent Problems in Negotiation and Negotiator Development as a Lifelong Process.
Each seminar attendee will participate in a hands-on negotiation exercise to apply the concepts presented, and critiques will be provided of the unrehearsed videotapes.
The tuition fees for this program are $195 for ISBA members and $295 for non-members. See Law Ed Series pages for registration details.
Two ISBA sections will participate in a roundtable discussion on "Advising Boards and Management on the Sarbanes-Oxley Act" from 2 to 4 p.m. Thursday, Nov. 21, in the ISBA Chicago Regional Office.
The Corporate Law Departments Section Council and the Corporation, Securities and Business Law Section Council will conduct the free presentation by four speakers on various applications of the act. They are:
Michael A. Harring, associate general counsel of Deere & Co. Advising the Audit Committee. The in-house counsel perspective as senior legal officer includes the top 10 issues for immediate attention in reviewing relationships with auditors.
Timothy M. Sullivan of Hinshaw & Culbertson Audit Committee Best Practices. The outside counsel's perspective includes interpretation of rules regarding independence of members, compensation, committee responsibilities and charter, meeting frequency and director education.
Robert J. Wild of Mayer, Brown, Rowe & Mau Advising Management on the Certifications and Disclosure Control and Procedures. The analysis of SEC rules implementing Sarbanes-Oxley Section 302 includes practical recommendations for ensuring complete and timely disclosure.
Robert C. Knuepfer Jr. of Baker & McKenzie Interpreting and Implementing the Prohibitions on Loans to Directors and Officers. The discussion of Section 402 includes consideration of common management loan activities potentially within the scope of the prohibition, and scenarios of permissible loans.
Wild and Knuepfer both serve on the Corporation, Securities and Business Law Section Council. The program will conclude with an open forum on issues encountered in practice.