Bipartisan group explores right to adequate counsel
Two attorneys with Illinois ties are members of a 16-person, bipartisan National Committee on the Right to Counsel, a joint initiative of The Constitution Project and the National Legal Aid and Defender Association (NLADA).
Former vice president Walter Mondale, who as Minnesota attorney general, organized the 22-state amicus brief in Gideon v. Wainwright, is honorary chair of the committee, which will examine the ability of the criminal justice system to provide adequate counsel to indigent defendants.
Committee members include Norman Lefstein, a graduate of the University of Illinois College of Law who is a professor and former dean at the Indiana University School of Law in Indianapolis.
Now in his fourth term as chair of the Indiana Public Defender Commission, Lefstein also chairs the American Bar Association Indigent Defense Advisory Group. He is past chair of the ABA Section of Criminal Justice and the Committee on Criminal Justice Standards.
Also serving is Shawn Marie Armbrust, a former case coordinator at the Northwestern University School of Law Center on Wrongful Convictions, who helped free Anthony Porter from the state's Death Row.
Now a law clerk for a judge of the U.S. District Court for the District of Columbia, Armbrust received an Amnesty International Media Spotlight Award in 1999 and an Advocates Award from Illinois Attorneys for Criminal Justice.
The committee is expected to make recommendations on addressing contemporary application of the 1963 ruling in Gideon that established the rights of poor people to have competent counsel in criminal cases.
Although state and local governments are responsible for ensuring adequate representation, many indigent defendants are convicted and imprisoned each year without legal counsel. Others are incarcerated for weeks before being assigned attorneys they do not meet until court appearances.
In other cases, the assigned attorneys are burdened with excessive caseloads, have no expertise in criminal law, or lack funds for investigations or DNA testing.
ABA commission issues incarceration report
A report of an American Bar Association commission on effective alternatives to reliance on incarceration in the criminal justice system will be considered next month during a meeting of the House of Delegates in Atlanta.
The report was presented June 23 to Supreme Court Justice Anthony M. Kennedy, for whom the commission was named. Kennedy had addressed inadequacies and injustices in the corrections system during a speech to the ABA last year in San Francisco.
Among commission recommendations are repealing mandatory minimum sentences, funding substance abuse and mental health treatment as alternative to incarceration, and implementing procedures against racial and ethnic profiling.
Other include identifying and removing barriers that prevent released inmates from reentering society, expanding executive clemency to reduce sentences, and forming task forces to study racial and ethnic disparity in various stages of the criminal justice process.
"For more than 20 years, we have gotten tougher on crime. Now we need to get smarter," said ABA President Dennis W. Archer. Individuals are imprisoned for longer periods of time, while their returns to society are made more difficult, he said.
Lawyer's fee in workers' comp case upheld
By Jeff Cappel
When Chicago attorney Larry D. Cohen agreed to handle a workers' compensation case three years ago, he did not expect his fee to be called into question after a settlement was reached.
The dispute was not initiated by the client, but by opposing counsel. The unusual matter eventually reached the Cook County Circuit Court, where Cohen was vindicated.
"I was shocked, to say the least," he said. "I've never heard of a lawyer questioning another's fee." The client had agreed with the fee and wanted Cohen to be paid upon settlement.
When the client retained Cohen in 2001, claiming an injury in the course of employment in 2000, his story wasn't unlike many other workers' comp cases.
He explained that his employer refused to pay temporary total disability benefits and medical bills. The employer disputed his claim that the accident arose out of and during the course of employment. The temporary total disability issue was resolved at a hearing, but medical benefits were not.
Cohen said his client continued to receive medical bills in excess of $125,000 for the next two and a half years, and the benefits were continually late. "So my client called me and faxed the unpaid medical bills, which I, in turn, sent to opposing counsel."
Cohen negotiated a settlement beyond 85 percent of a man-as-a-whole under Section 8(d)(2) of the Workers' Compensation Act in the amount of $205,000. The client also received $145,000 as a compromise for the disputed disability and future medical costs.
"This total amount of $350,000 was in addition to the $125,000 in unpaid medical bills," Cohen explained. A settlement contract was presented to the arbitrator, and the client asked that Cohen's fee of 20 percent of the $350,000 be approved.
"The agreement was about to be approved, when opposing counsel objected to my fee based upon a limitation stated in Section 16a(B)," Cohen said. "The arbitrator said that I should file a petition for attorney fees under 16(J)."
Although the fee wasn't disputed by his client, Cohen filed the petition. He included time records plus an affidavit from the client indicating additional time that Cohen spent on the case.
The arbitrator rejected the settlement contract, finding that the fees were not in accordance with 16a(B), and set Cohen's fee at $38,972.02 instead of $70,000 (20 percent of $350,000).
Cohen asked that the settlement contract be approved with what the arbitrator thought to be the appropriate fee, but placing the disputed balance in his client funds account. The arbitrator agreed, but in the amended decision allowed only $38,972.02 pending resolution of the appeal.
Cohen filed a petition for review, but a decision was issued by the Illinois Industrial Commission affirming the arbitrator and adopting the lower fee without explanation.
Among Cohen's arguments was that the arbitrator mistakenly applied the Section 16a(B) cap in the Workers' Compensation Act to the additional $145,000 fee for the disputed temporary disability and future medical, which was stated separately in the settlement contract.
Cohen also argued that the cap was applied mistakenly to the $125,000 in disputed medical bills, and that the section allowed a cap to apply to Section 8(d)(2) recovery. He said he was unjustly limited to the cap, rather than the application of the principle of extraordinary services under Section 16(J).
Cook County Judge Alexander P. White reversed the decisions of both the Industrial Commission and the arbitrator. He ruled that the "Section 16a(B) cap does not apply to Section 8(d)(2) recoveries, or man-as-a-whole, nor does it apply to disputed temporary disability benefits or future medical as separately stated in this settlement contract."
White added, "Nor does it apply to disputed medical expenses as indicated by the record, including, but not limited to, the face of the settlement contract, all as a matter of law."
Use of collaborative law in marriage dissolutions reduces stress, animosity
By Stephen Anderson
Information about collaborative law, a multi-disciplinary approach to reducing stress and animosity in marriage dissolutions, was available during the ISBA Annual meeting last month.
Representatives of The Collaborative Law Institute of Illinois were present to explain advantages of the process over litigation in determining financial solutions, healthy plans for children, emotional acceptance by parties, legal safeguards and finality.
Collaborative law emphasizes creative, good-faith problem solving in a cooperative setting that can maximize settlement options and minimize the adversarial nature of traditional representation.
A collaborative law team usually consists of attorneys, family therapists, coaches, child specialists and financial experts. All are dedicated to stake their professional integrities on the goal of moving the marriage dissolution toward an acceptable resolution.
The process begins with negotiation during a series of conferences on issues such as parenting decisions and division of the marital estate. Parties agree to remain civil and respectful, and to avoid the tendency to assess blame and rehash hurts.
Honest, voluntary disclosure of pertinent information and documentation is vital, and experts on finance and mental health may be asked to participate.
Ultimately, the parties make commitments to achieve settlements by working together to resolve divisive issues and to reach agreements that are beneficial to all.
"Collaborative law treats a family in divorce as a family in crisis, having a series of problems to be solved instead of a destructive war to be fought," said Chicago attorney James R. Galvin, who attended a recent information program in the ISBA Chicago Regional Office.
"The end goal is to meet the legitimate needs of the clients in a restructured family," said Galvin, a founding board member of the institute.
Collaborative lawyering, conceived in 1990 by a burned-out matrimonial attorney in Minneapolis, has been used extensively across the country since 1991.
"It is not limited to any area of practice but is clearly rooted in family law," Oak Brook attorney J. Richard Kulerski wrote in the November 2002 issue of the ISBA Family Law Section newsletter. "It is midway between mediation and litigation in the dispute resolution continuum."
Kulerski identified its most essential characteristic as "that the divorcing parties and their respective counsel enter into a four-way agreement to use their energies to settle the case without court intervention."
For more information, access the Web site, www.CollabLawIL.org, or call Chicago attorney Sandra Crawford, a member of the ISBA Committee on Women and the Law, at (312) 726-8766.
Winnebago Clambake among summer outings
The 59th annual Winnebago County Clambake and golf outing will take place Friday, July 30, at Macktown Forest Preserve in Rockton. Call (815) 964-4992.
Shotgun starts are scheduled at 7:30 a.m. and 1 p.m. shotgun, with clam chowder, shrimp and bratwurst lunch available from 11 a.m. to 2 p.m., and lobster or barbecued rib dinner at 6:30 p.m. followed by prizes.
Other law-related summer golf outings are scheduled on the following dates.
JULY 19 (Monday) ST. CHARLES - Illinois Real Estate Lawyers Association golf outing at St. Charles Country Club, with 11:30 a.m. lunch, 1 p.m. shotgun start and 6:30 p.m. dinner. Call (847) 593-5750.
JULY 19 (Monday) AURORA - Kane County Bar Association golf outing at Orchard Valley Golf Course with 1 p.m. shotgun start; tennis tourney at 1:30 p.m. in Aurora Tennis Club. Call (630) 762-1915.
JULY 19 (Monday) CHICAGO - John Marshall Law School Alumni Association golf outing at Ridge Country Club. Call (312) 987-1420.
JULY 30 (Friday) AUBURN - Sangamon County Bar Association annual Play Day golf outing at Edgewood Golf Course, with dinner at Island Bay Yacht Club, Springfield.
AUGUST 3 (Tuesday) OAK BROOK - Attorneys' Title Guaranty Fund golf outing at Oak Brook Hills Resort, with 12 noon lunch, 1 p.m. shotgun start and 6:30 p.m. dinner. Call Suzy Auteberry, (800) 252-5206, ext. 2130.
AUGUST 6 (Friday) CHICAGO - Workers' Compensation Lawyers Association golf outing at Highland Park Country Club. Call Karen Talty, (312) 645-0606.
AUGUST 9 (Monday) EDWARDSVILLE - Illinois Trial Lawyers Assn. Southern Illinois golf outing at Sunset Hills Country Club. Call (800) 252-8501.
AUGUST 16 (Monday) PEORIA - Peoria County Bar Association golf outing at Mt. Hawley Country Club, with 12 noon shotgun start, 5 p.m. reception and dinner (Aug. 23 rain date). Call (309) 674-6049.
SEPTEMBER 13 (Monday) WOOD DALE - Women's Bar Association 9th annual "No Threat, No Sweat" golf outing at Maple Meadows Gold Club, with 11:30 a.m. shotgun start, reception and dinner. Call (312) 341-8530.
SEPTEMBER 17 (Friday) OLYMPIA FIELDS - South Suburban Bar Association golf outing, limited to 40 golfers, at Olympia Fields Club, with tee times from 9 a.m., 5:30 p.m. reception and barbecue dinner. Call Ed Burt, (708) 687-5200.
Don't miss out on a free listing at IllinoisLawyerFinder.com
Did you know that ISBA has an online lawyer directory designed to put your name in front of prospective clients? And that you probably qualify for a free listing?
If you're an ISBA member with a valid Illinois law license and you agree to carry professional liability insurance and authorize ISBA to determine your ARDC status, you're entitled to have your name and contact information listed on ISBA's IllinoisLawyerFinder.com Web directory. The directory enables consumers to find you by location (e.g., "Chicago," "Springfield") and practice areas (e.g., "family law," "personal injury").
And for a $50 yearly fee you get a premium listing, which includes 1) preferred placement on the Web directory, 2) a biographical blurb that appears with their Web listing, and 3) a listing in ISBA's phone lawyer referral service.
Keep in mind that IllinoisLawyerFinder.com is more than just a directory of attorneys. It provides information to the public about Illinois law and contains other consumer-friendly features, all aimed at providing basic legal information and attracting prospective clients.
To sign up, click on the "Lawyers: join the directory" link at IllinoisLawyerFinder.com or go straight to <https://secure.isba.org/lawyer finderforms/signup.html>.
Director of Legislative Affairs
The Illinois General Assembly has finished its spring session, and it is now Governor Blagojevich's role to sign, veto, or amendatorily veto bills that have been sent to him within 60 days of his receipt of a bill. This is a summary of some of the bills that have been passed by the General Assembly that may be of interest to ISBA members, all of which have an immediate effective date.
Small estate affidavits. Senate Bill 2630 (Winkel, R-Champaign; Mathias, R-Buffalo Grove) increases the ceiling for small estate affidavits from $50,000 to $100,000.