ISBA files practice transfer rule proposal
By Stephen Anderson
"Prohibiting the sale or transfer of sole practitioners' law practices serves no one." That succinct observation leads off the statement of issues accompanying an ISBA petition to the Illinois Supreme Court for a proposed rule to permit the transfer of a law practice.
Filed with the court on Jan. 15 by President Terrence J. Lavin and general counsel Mary T. McDermott, the proposal includes both a new Rule 1.17 and, as an alternative, American Bar Association Model Rule 1.17.
The ISBA petition explains in detail how such a rule would "benefit clients by ensuring continuity of legal service" and "reduce the burden on families of sole practitioners who unexpectedly die or become disabled."
In its memorandum of support for the petition, the ISBA cites the Nov. 10, 2000, death of Bloomington attorney John N. Stevens after being struck by the vehicle of a drunk driver.
(Stevens had been a member of the ISBA Assembly, which subsequently adopted the practice transfer concept in December 2002. The Board of Governors approved the final draft last April 4.)
"Current rules did not allow John to plan for the smooth transition of his law practice after his death," the memorandum points out. Thus the rules don't ensure continuity of representation for clients, and do not serve the interests of clients.
Stevens' widow, who realized only $7,500 from physical assets of the law office, had to sue some former clients for prior legal services and to develop a bookkeeping system that "continues to take a toll on my finances, time, energy and emotions," she said.
"Just as the hole in my heart, which was created when John was killed, is ever present, the effect of his death on his family, friends and clients is ongoing," Nancy Stevens said in a recent letter to the ISBA.
"The challenges and heartaches that have been created by the present policies set forth (by the court) have been a travesty at an already devastating time in my life and a disservice to my husband's former clients," she continued. "It would be my earnest hope that no others would be subjected to the disappointments and inequities they create."
The rule proposed by the ISBA would provide for "a prompt transfer of the practice, provide an equitable and fair vehicle for sole practitioners to sell or transfer their practices at a fair and reasonable value, and foster the proper administration of justice."
Drafted by a Special Committee on Implementation of Transfer of Law Practice, chaired by Champaign attorney John T. Phipps, the proposal is the product of more than a year of work and input from ISBA section councils and committees.
It is based on research and comparisons with existing rules among 38 other jurisdictions. No incidents have occurred in those states to support fears expressed in the 1989 opinion of the Illinois court in O'Hara v. Ahlgren, Blumenfeld and Kempster (130 Ill. Dec. 401).
No estate of a sole practitioner has made an inappropriate referral for the purpose of enrichment, nor has a lawyer neglected a matter because he or she was sharing a fee with the estate after sale of a practice.
The ISBA proposal describes conditions under which "A lawyer, the estate of a deceased lawyer, or the guardian or authorized representative of a disabled lawyer may transfer or sell, and a lawyer or law firm may accept or purchase a law practice..."
The conditions are: death or disability, retirement, declaration of inactive status with the Attorney Registration and Disciplinary Commission, becoming a member of the judiciary, full-time government employment, or moving to an in-house counsel or other position of employment not involving the private practice of law.
The entire practice could be transferred to one or more lawyers or law firms currently licensed, in good standing and authorized to practice in Illinois. Written notice would be provided to clients by certified mail.
The proposal provides that a lawyer who transfers a practice under conditions of this rule would not be allowed to resume private law practice for at least two years after final closing of the transfer.
The committee chaired by Phipps, a past chair of the General Practice, Solo and Small Firm Section Council, compiled details of deaths and disabilities of solo practitioners that resulted in termination of law practices without compensation for years of work and valuable client files.
Each year, many solo practitioners retire or die in accidents or from illnesses. Clients are left without representation from the lawyer who has provided counsel for years, and must start over with another lawyer who may be less experienced or more busy with other clients.
A Web-based ISBA mentoring service will soon become an available resource for attorneys who have questions about substantive legal issues, the economics and management of law practices, and rules of professional conduct.
Past president Leonard F. Amari and first assistant counsel Melinda J. Bentley explained the pilot program to the ISBA Board of Governors on Jan. 23 and received unanimous approval for start-up funding to implement it.
"The legal profession is a mentoring profession," Amari told the board. The program will be a benefit to all ISBA members, especially newer attorneys, as they grow in the profession, he added.
The goal is to provide a mechanism for a mentee to contact an experienced, qualified mentor to obtain an answer to a single-issue legal question, or to develop a more formal mentoring relationship.
When the procedure is implemented, application forms will be available electronically for volunteers to sign up to serve as mentors in specific types of law. They will be listed alphabetically and geographically with information about their areas of practice.
Mentees would be required to register on-line with e-mail addresses and passwords before gaining access to the list of mentors.
Amari, who is co-chair of the Special Committee on Mentoring with retired judge Sheila M. Murphy, said that section councils and committees would be asked to encourage experienced members to help create the initial pool of mentors.
"This is a seed, not a tree," ISBA President Terrence J. Lavin observed. He said he would seek cooperation from the Illinois Judges Association in identifying potential mentees among lawyers who appear to be inexperienced or unprofessional.
Laureate dinner tickets available
Twelve Laureates of the Academy of Illinois Lawyers will be inducted Wednesday, March 3, during a dinner at the Standard Club of Chicago. Stories about their distinguished careers begin on page 8.
The 6:30 p.m. dinner and ceremony will follow a 6 p.m. reception. Reservations at $75 per person may be made by calling JoAnn Hibbs at (800) 252-8908 or sending an e-mail to jhibbs@isba.org. Tables of 10 are available.
Family Law Section offers sweeping 'kindercentric' Custody Act changes
By Stephen Anderson
For the third time in recent years, the ISBA Family Law Section Council has proposed a far-reaching improvement in the practice of domestic relations.
Previously, Family Law task forces devoted years to rewriting the state's Domestic Violence Act and, more recently, to developing the concept of child representative to clear up confusion among attorneys for children and guardians ad litem.
Currently on the table is a revision of the Illinois Custody Act with a "kindercentric" approach that replaces the marital contentions of "custody" and "visitation" with cooperative creation of a joint "parenting plan" and provision for "parenting time."
"This proposal seeks to have the parents address the children's issues first," the ISBA Board of Governors was told Jan. 23 by Family Law Section Council chair Laura M. Urbik-Kern of Elmhurst, who headed the two-year study.
"It forces them to come up with a parenting plan of their own making which fits the interests of both the family and the children. It utilizes mediation as a tool to resolve disputes," she added.
Urbik-Kern pointed out that custody and visitation are loaded words that often promote dissension instead of unity, and can enable divorced parents to use children as possessions in their disputes over post-marital issues.
"Kids should have rights and responsibilities just as their parents do," she told the board. Parents should make the ultimate decisions that maintain the status quo of what their children have been living with and counting on.
"It is our hope that if this proposal becomes law, children going through the process will grow up healthier because of it," Urbik-Kern said. "These children will grow up to marry our kids, so we have a vested interest," she quipped.
Board member Enrico J. Mirabelli, a matrimonial lawyer, commented that moving children from the middle to the forefront of marriage dissolutions would also help the judicial system unclog domestic relations dockets.
Various sections of the proposal cover court jurisdiction, restrictions on parental responsibilities, relocation of parties, modification of parenting plans, and abuses of allocated parenting time.
The proposal defines "caretaking functions" and outlines tasks that involve interaction with children - nutrition, skills development, discipline, education, health care, alternative care, interpersonal relationships and moral guidance.
Also defined are the new terms of "de facto parent" and "equitable parent" for situations in which a person other than a legal parent has formed a parent-child relationship or is obligated to contribute financial support.
A "parenting plan" involves a written agreement that allocates parental responsibilities and actual parenting time in which decisions are made and caretaking functions are carried out.
The Board of Governors adopted the proposal unanimously and will circulate it for comment from the membership. A special committee will prepare a legislative proposal for consideration by the ISBA Assembly in December.
ISBA opposes ceilings on appeal bonds
The Illinois Supreme Court Rules Committee was informed Jan. 26 that the Illinois State Bar Association opposes two proposals to amend Rule 305 involving caps on the amounts of bonds in pending appeals of judgments.
President Terrence J. Lavin and general counsel Mary T. McDermott testified during a Chicago hearing that the requests were generated by a high-profile class action against a tobacco company that was unlike any similar verdict.
The ISBA Board of Governors voted unanimously Jan. 23 to oppose both a proposal by business interests to set ceilings on appeal bonds, and a rules committee proposal to give a trial judge discretion to modify a bond that seems beyond the means of a judgment debtor.
"A $10 billion bench verdict is a pretty remarkable thing," Lavin told the rules committee, "but it is, in fact, just one case. You have to be careful about the pendulum swinging back the other way and taking out a whole group of people."
The Board of Governors and Tort Law Section Council also questioned the meaning of "other forms of security" that would be acceptable, and the suggestion that a letter of credit could act as a form of security.
Candidate ratings OKd
In other business, the Board of Governors on Jan. 23 approved changes from the Committee on Judicial Evaluation in procedures for screening candidates for the judiciary.
Among the modifications outlined by co-chairs Gilda Hudson-Winfield and Christopher Mullen is changing the ratings from "recommended" or "not recommended," to "highly qualified," "qualified" or "not qualified."
Hudson-Winfield explained that some candidates in past evaluations who received ratings of "recommended" used them as an indication that the state bar association was endorsing them for election.
Also new is the ratification vote immediately after a candidate interview if at least 15 committee members are present. If fewer than 15 members are present, the committee must schedule a subsequent ratification meeting.
The board approved extending from two to three years the duration that a previously evaluated candidate may maintain his or her rating without re-evaluation, unless a higher judicial office is sought.
Should diplomatic clients plead guilty?
Three ISBA sections are sponsors of a brown-bag luncheon program at 12 noon Friday, Feb. 20, in the Chicago Regional Office. The title is "Immigration Consequences of Criminal Guilty Pleas: Pitfalls, Liability and Diplomatic Miranda Warnings."
Sponsors are the International and Immigration Law Section, the Traffic Laws and Courts Section, the Criminal Justice Section, the Young Lawyers Division and the Law Student Division.
Speakers will discuss advising clients in light of recent legislation that requires courts to admonish criminal defendants of possible immigration consequences resulting from guilty pleas.
Topics include a client's rights under the Vienna Convention on Consular and Diplomatic Relations, related U.S. Supreme Court action, the Avena case and the International Court of Justice, and predictions for future practice in the U.S.
Speakers are Prof. Mark E. Wojcik of The John Marshall Law School, vice chair of the International and Immigration Law Section Council; section council member Patrick M. Kinnally of Aurora, and Cook County Judge Lawrence Terrell of the 4th Municipal District, Maywood.
There is no charge to attend the program, but space is limited. Advance reservations should be made by calling Katie Neal at (312) 726-8775 or sending an e-mail to kneal@isba.org. The ISBA will provide refreshments.
Reading, writing and righting wrongs in cultural equality
By Stephen Anderson
During this academic year, many teachers will try to explain how the constitutional inclinations of the 13th and 14th Amendments after the Civil War failed to elucidate a clear concept of equality.
Educators may struggle with answers to questions of why almost a century elapsed before a unanimous Supreme Court opinion in Brown v. Board of Education tolled the end of a critical type of racial inequality.
The 50th anniversary of the Brown decision will be well commemorated leading up to the actual date of May 17, 2004. You'll hear much more about that as the months ensue (see page 21 for some events).
A legal matter of lesser fame, adjudicated 150 years ago in a much lower court, illustrates the pre-Civil War mindset about educational segregation that eventually was tempered in Plessy v. Ferguson and curtailed in Brown.
Douglas pleads her case
In November 1853, an antebellum belle of means from Charleston, S.C., pleaded her futile defense against prosecution for an alleged violation of a Virginia statute. Margaret Douglas was charged with "teaching colored children to read and write."