ISBA weighs in on key Supreme Court rule proposals

Limited retiree pro bono backed

By Stephen Anderson

An ISBA proposal for authorizing limited pro bono legal services by inactive and retired attorneys, and in-house counsel, received support during the Illinois Supreme Court Rules Committee hearing Jan. 28 in Chicago.

The proposed amendment to add a defining paragraph (j) to Rule 756 was drafted by a coalition that included Prairie State Legal Services, the Chicago Bar Foundation and Caterpillar.

The Committee on Delivery of Legal Services sent the proposal to the ISBA Assembly, which voted unanimously on June 23, 2007, to support it.

Past president Irene F. Bahr, who created the ISBA Senior Lawyers Section Council, hailed the plan as a useful means of providing "a second season of service" to retired members.

At the court rules hearing last month, Chicago Bar Foundation President Thomas Z. Hayward urged adoption of the proposal to permit lawyers on inactive status to provide representation to eligible clients of legal service agencies.

He noted that the ISBA support included a recommendation for malpractice insurance coverage to be provided by the organizations for participating individuals.

Jai-Prakash P. Kumar, corporate counsel for Caterpillar in Peoria, added his "wholehearted support" for a rule that would allow in-house attorneys in Illinois to share legal experience in pro bono programs.

Under proposed Rule 756(j), Pro Bono Authorization for Inactive and Retired Status Attorneys and House Counsel, they would be able to provide services, without charge or expectation of fee, to people of limited means or organizations as defined in paragraph (f).

Further, they would have to participate under the auspices of sponsoring entities that could include not-for-profit legal service providers, governments, law school clinics or bar associations.

Procedures for attorneys seeking authorization, and the duties of sponsoring entities, are spelled out in the proposal.

Participating attorneys would be required to register annually but would not have to pay registration fees. They would be exempted from MCLE requirements, but could have to undergo appropriate training by the sponsoring entity.

Foreign attorney admission probed

The ISBA supports, in essence, a proposed Illinois Supreme Court rule regulating pro hac vice admission, but with some reservations that have been expressed by President Joseph G. Bisceglia.

Chief among the concerns Bisceglia raised at the court's rules committee hearing Jan. 28 is the provision in proposed Rule 707(e) that gives discretion to agency administrators whether to accept applications from foreign attorneys to appear in Illinois proceedings.

Depending on the level of the administrative agency, that degree of "ultimate power could be abused," Bisceglia said, pointing out that the Illinois Supreme Court "has the exclusive power to supervise the practice of law."

Jerome Larkin, administrator of the Attorney Registration and Disciplinary Commission, told the rules committee later that he would devote some time to research the separation of powers issue that the ISBA raised.

The ARDC, which generated the comprehensive new rule, would be required to review and evaluate every application from an out-of-state attorney to appear as counsel in an Illinois proceeding.

Bisceglia suggested this creates "a new bureaucracy" for no apparent reason. "If there is no evidence of rampant problems, why hold up the process?" he asked.

He added that the requirement in 707(b)(3) that "the applicant must be associated in the matter with an Illinois attorney" mitigates the need for the ARDC to have the burden of reviewing every pro hac vice request.

Larkin told the committee that the ARDC has access to a national disciplinary data bank and can quickly determine whether a pro hac vice applicant is or has been subject to sanctions in another state that could place the local counsel in contempt.

He said he hoped the process would not be a burden to ARDC staff, and it would be worthwhile to "get a handle on pro hac vice" and provide tracking to the Illinois court system.

"Our motive is to protect the profession, the courts and clients," Larkin said.

Definition of "a proceeding" also is needed, Bisceglia said, and it should exclude participation in arbitrations and other alternative dispute resolution processes.

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