been granted the authority to refuse to renew the license of a person found to be delinquent in his or her child support payments. Section 2-3.9 of the School Code indicates that the State Board of Education is the "agency" responsible for granting and suspending teachers' certificates generally. Nothing in the provisions of article 21 of the School Code relative to the State Board of Education alters this position. Therefore, with respect to teaching certificates, the State Board of Education is the agency authorized to conduct hearings under subsection 10-65(c) of the Administrative Procedure Act. 5 ILCS 100/10-65(c) (West 1999 Supp.); 105 ILCS 5/2-3.9 (West 1998); 105 ILCS 5/21-0.01, 21-1c, 21-2 and 21-14 (West 1999 Supp.).
Informal Opinion No. I-01-008, issued February 20, 2001: circuit court clerk's collection of fees related to microfilmed records. (1) Public officers may collect fees only as may be authorized by law. Nothing in the language of the Clerks of Courts Act or in the other pertinent statutory provisions expressly grants the clerks of the circuit courts the authority to collect a fee from the public for the use of the office's microfilm viewing device to inspect records maintained by the clerk. (2) Under section 13 of the Local Records Act, a public officer is required to provide copies of microfilmed public records upon receipt of the requisite fee, which is calculated as the actual cost of the copies plus a 15 percent service charge. (3) Pursuant to section 2 of the Fee Deposit Act, all fees collected by the circuit clerk are to be deposited with the county treasurer, unless otherwise provided by law. Except to the extent specified by law, funds received by the county treasurer are to be deposited into the county's general or corporate fund. 50 ILCS 205/13 (West 1998); 50 ILCS 315/2 (West 1998); 705 ILCS 105/16 (West 1998.)
Informal Opinion No. I-01-012, issued March 20, 2001: public access to real property owned by the Metropolitan Water Reclamation District of Chicago for recreational purposes. The Metropolitan Water Reclamation District of Chicago has statutory authority to lease, grant easements for or permit the use of its property to the extent that such use does not interfere with the use of the property by the District. The mere fact that property is owned by a public entity for a particular corporate purpose does not mean members of the public have free access to the property for recreational or other uses. Because the District is a political subdivision of the state, the procedures that it establishes to determine who may use its property must respect all civil rights protected by the United States and Illinois Constitutions. 70 ILCS 2605/8 (West 1998); U.S. Const., amend. XIV.
Informal Opinion No. I-01-018, issued April 4, 2001: state employee's provision of consulting services to the State of Wisconsin. An employee owes a fiduciary duty to his or her employer and must devote his or her best efforts to the employer's business. To the extent that an employee of the Illinois Department of the Lottery proposes providing consulting services to the Wisconsin Lottery that compete with his official duties at the Illinois Department of the Lottery, the state employee has a prohibited conflict of interest.
Informal Opinion No. I-01-021, issued May 16, 2001: distribution of fines and fees for traffic offenses. Section 16-105 of the Illinois Vehicle Code has long been construed to require that fines and fees imposed for violations of chapters 11 through 16 of the Code that occur within municipalities be distributed to those municipalities when municipal police officers sign complaints and appear as witnesses in court, without regard to whether the state's attorney or a municipal attorney appears in court to prosecute the case. Section 2-120 of the Illinois Vehicle Code, which governs disposition of fines and fees imposed under chapters 2 through 9 of the Code, contains language nearly identical to that in section 16-105 of the Code. Consequently, with respect to violations of the provisions of chapters 2 through 9 of the Code, when a municipal police officer signs the complaint and appears in court, fines and penalties that are not disbursed by the circuit clerk pursuant to the provisions of section 27.5 and 27.6 of the Clerks of Courts Act, or other enumerated exceptions, should be paid to the treasurer of the municipality, regardless of whether the state's attorney or a municipal attorney appears in court to prosecute the case. 625 ILCS 5/2-120 (West 1999 Supp.); 625 ILCS 5/16-105 (West 1998.)
Informal Opinion No. I-01-022, issued May 16, 2001: closed meetings to consider engaging the services of a law firm. Subsection 2(c)(1) of the Open Meetings Act authorizes public bodies to hold closed meetings to consider the appointment or employment of specific employees of the public body. Subsection 2(c)(3) authorizes public bodies to hold closed meetings to select a person to fill a public office. Members of a law firm are not public employees or public officers. Consequently, a public body is not authorized to hold closed meetings for the purpose of engaging a law firm to provide legal services under either subsection 2(c)(1) or (2)(c)(3) of the Open Meetings Act. 5 ILCS 120/2(c)(1) and (c)(3) (West 1998), as amended by P. A. 91-730, effective January 1, 2001.
By Rosalyn Kaplan, Chicago and Susan Cox, Chicago
Illinois
In re Schaaf, No. M.R. 17387 (March 23, 2001). Respondent, who was licensed to practice law in Illinois in 1994, began working as a part-time assistant state's attorney in Jersey County, while he was also engaged in private practice; he was hired as a full-time assistant state's attorney in April 1999.
In April, 1999, in an attempt to close his private practice, Respondent mailed a letter to a former client regarding her outstanding bill. The letter was captioned "FINAL NOTICE!!" and stated:
As stated per our last conversation, there has been no action taken to pay the remaining balance on your account and my patience has been depleted. I have filed a Theft of Services Criminal Complaint. This is a class four (4) felony subject to 1-3 years in the Department of Correction [sic], a $25,000 [sic] plus costs and restitution. In addition to signing the complaint, I will be prosecuting it on behalf of the State.
As a final gesture for you to resolve this matter without having to face jail, fines and a conviction, I advised the Jersey County Sheriff to hold the warrant until May 5, 1999. If the balance due on your account is paid in full prior to May 5, 1999, I will inform the Sheriff not to enter the warrant. If payment in full is not received by 12:00 noon on May 5, 1999, the warrant will be entered and it will take a $500 bond to bail you out of whichever jail you are placed [in] after arrest.
Do Not Ignore This Notice!
Schaaf stipulated at his disciplinary hearing that at the time he mailed the letter, no formal criminal charges had been filed against his client, no warrant of arrest had been issued, and he had not spoken with the Jersey County Sheriff about holding the warrant for arrest.
Following formal disciplinary proceedings against Schaaf, in which he was found to have threatened to present criminal charges in order to obtain an advantage in a civil matter, in violation of Rule 1.2(e) of the Rules of Professional Conduct, and engaged in conduct involving fraud, dishonesty, deceit or misrepresentation, in violation of Rule 8.4(a)(4) of the Rules of Professional Conduct, the Illinois Supreme Court ordered him suspended from the practice of law for 12 months, with the suspension stayed after the first 5 months by a period of probation, subject to several conditions, including the completion of a course of instruction on the Rules of Professional Conduct.
Federal courts
Ninth Circuit
In the Ninth Circuit, prosecutors not only have a duty to disclose exculpatory and impeaching evidence to a defendant prior to entering into a plea agreement, but also may not ask that the defendant give up that right as part of the plea. In United States v. Ruiz, 241 F.3d 1202 (9th Cir. 2001), the court held that a plea agreement that contained an explicit waiver of the defendant's rights under Brady v. Maryland could never be voluntary or intelligent unless the defendant is aware of the exculpatory evidence against her.
The case arose under the "fast-track" program in San Diego, which allows a defendant to plead guilty and waive her Brady and other rights in exchange for a lower sentence under the sentencing guidelines. The court remanded the case back to the district court to determine whether the government had improperly withheld a favorable sentencing recommendation based on the defendant's refusal to give up her right under Brady.
A strong dissent from one judge may have prompted the Ninth Circuit's decision to rehear the matter en banc, 242 F.3d 1157. The government has argued that such a rule will impede plea negotiations and the use of informants because their identities will have to be released prior to trial. Several circuits (although not the Seventh) have required Brady disclosure before a plea, but the Ninth Circuit stands alone in its holding that a waiver of such a right is unconstitutional.
Eleventh Circuit
In the Eleventh Circuit, a prosecutor got into trouble when he was found to have impermissibly influenced the grand jury, with the resulting indictment dismissed. The prosecutor had suggested to the grand jury that indicted the case that the defendant had committed other crimes for which he was not charged. In United States v. Sigma, 244 F.3d 841 (11th Cir. 2001), the court held that the prosecutor had denied the defendant of his Sixth Amendment right to an indictment for this conduct, as well as hinting to the grand jury that its predecessor had wanted to indict the case itself, but had been held up by the bureaucracy in the U.S. Attorney's Office. Dismissal of an indictment is rare, but the court stressed that rubber stamping by grand juries was enough of a problem without the additional misconduct as well.
Other jurisdictions
Colorado
Good intentions did not absolve a Colorado state prosecutor who impermissibly pretended to be a public defender to coax a triple murderer into surrendering to authorities and releasing his hostages. In People v. Pautler, No. 00 PDJ 016 (April 2, 2001), the Colorado lawyer discipline panel found the prosecutor guilty of a violation of the Colorado equivalent of the ABA Model Rule 8.4, which prohibits an attorney from acting deceitfully. The prosecutor had adopted the ruse when the defendant, who already had killed three women and had raped a fourth whom he was holding as a hostage, asked to speak to a public defender. After talking with the prosecutor, the defendant surrendered.
The panel ruled that the ends did not justify the means and suspended the prosecutor from the practice of law for three months, staying the sentence during a year of probation. The prosecutor, who says that he would do the same thing again, has appealed to the Colorado Supreme Court.
Rhode Island
In re Ferrey, 774 A.2d 62 (R.I. 2001). Steven Ferrey, a Massachusetts attorney who had received permission from the Energy Facility Siting Board of Rhode Island to appear in proceedings before it, applied to the Rhode Island Supreme Court for permission to appear pro hac vice before the administrative agency. The court allowed his request but declined to make its order nunc pro tunc to the date of his first appearance before that agency, pointing out that Rhode Island law prohibited the unauthorized practice of law and prohibited the receipt of attorney fees for the unauthorized practice of law. The court refused to approve, retroactively, what might be prosecuted as the unauthorized practice of law in that state, explaining that Mr. Ferrey's receipt of permission to practice from the agency itself might have been sought and granted in good faith, but only the Rhode Island Supreme Court has the authority to decide who will practice law in Rhode Island. One justice of the court, dissenting in part, would have approved the request to make the permission retroactive, citing the lack of any specific rule as to obtaining pro hac vice status before an administrative tribunal and the agency practice of allowing such requests, as well as the attorney's good faith belief that the agency had the power to authorize his appearance. The dissent noted that "inevitable tactical attempts" were already underway to annul everything the attorney had done in practice at the administrative agency prior to the court's allowance of his request to practice pro hac vice.
By Chuck Gunnarson, Springfield
One of the most desirable features of the Internet is its ability to quickly disseminate the most recent news and information to its users. The ISBA capitalizes on this feature to provide its members with reports on recent decisions, articles and other valuable practice information. Through its case digest service, ISBA members can receive information on recent decisions throughout Illinois and in the Seventh Circuit Federal Court of Appeals via email updates automatically sent to your computer. For decisions and information more specifically oriented to particular practice areas, the ISBA offers practice updates to those who are members of the various practice area sections. The general areas of practice include trial practice, real estate/probate, business law, family law and criminal law. Log onto www.isba.org and look for the "ISBA Interactive" section on the left side of the ISBA's homepage, where you can sign up for both services.
In an earlier In-sites article, information was provided about a Web site that provides information on the professional status of physicians. (www.dpr.state.il.us/ licenselookup/default.htm.) Another place to obtain information on the disciplinary histories of many U.S.-licensed physicians is www.docinfo.org. Developed by the Federation of State Medical Boards, the site claims to be the single most comprehensive site for obtaining physician disciplinary information. The database contains information on over 115,000 state medical board actions against physicians dating back to the 1940's in some cases. There is a charge to obtain information from this site. Information concerning the verification of credentials of individual physicians can be obtained from the Federation of State Medical Boards Web site at www.drdata.org.
FirstGov, a Web site providing information and links to various federal government sites for a number of years, has expanded its site to cover state and local government. Go to http://firstgov.gov/state_gov/state.html and you can find links to various state Web site homepages and other sites involving state government.
Looking for guidance on an ethical issue in your practice? Ethics-related articles, excerpts from continuing legal education materials and new ethics opinions from around the nation can be found at http://www.legalethics.com/. Both state and federal ethics opinions and issues are covered in this site.
Do you have any savings bonds you received as a kid in your drawer or safe deposit box and wonder what they are worth? Are you interested in learning about the various savings bonds and purchase options available? Check out http://www.savingsbond.gov/ where you can calculate the value of any bonds you have, learn about bond purchase options and use savings calculators to help make financial decisions.
By Marc C. Loro, Springfield
The Legislation Subcommittee completed its second full legislative session in June. We believe that one of the most concrete ways that the Committee on Government Lawyers can have a measurable impact on the policies and programs of the ISBA is through the work of an active Legislation Subcommittee. Our hope is that by demonstrating this impact, we will give government lawyers another reason for giving serious consideration to membership and participation in the activities of the Committee on Government Lawyers and the ISBA.
From its inception, the Committee on Government Lawyers concluded that we should limit our activity to commenting only on bills that we believe merited our special attention, rather than attempting to comment upon everything that the ISBA's Department of Legislative Affairs sent us. We also discussed the topics or areas of legislation that we wanted the DLA to bring to our attention.
During the session that was just completed, the subcommittee reviewed 14 bills at the request of the Department of Legislative Affairs. The full committee concluded that it should offer specific commentary on 13 of those bills, with the following results: the committee issued statements of support for six bills; issued statements in opposition to three bills; and concluded that it should not take any position on four bills.
At the time that this article was written, three of the bills on which the committee took a position had passed the legislature and were awaiting action by the Governor. They were as follows: HB 549, which the Committee supported, amends the Counties Code to increase the compensation for public defenders; HB 1029, which the Committee supported, revised the definition of "news media" in several statutes (such as the Freedom of Information Act, the State Records Act, and the Local Records Act) to include news services and periodicals issued in an electronic format as well as in print, and television networks. Finally, the Committee opposed HB 3078, which also amends the FOIA by specifying that a public body's agreement settling litigation, other than litigation brought by a prisoner, is a public record.
The following are bills which have been signed by the Governor and enacted, and which may be of interest to government lawyers:
Public Act 92-0017 (HB 779)
Amends the Associate Judges Act to provide that the minimum number of associate judges authorized for any circuit with a population of at least 173,000 (instead of any circuit with a population of at least 173,000 but not more than 177,000) shall be five. Effective June 28, 2001.
Public Act 92-0019 (HB 1623)
Amends the Attorney General Act concerning legal fees in land claim disputes. Requires the Attorney General to determine that the authorization to pay fees is in the public interest and that the legal representation can be conducted efficiently and reasonably to avoid unnecessary duplication of effort and costs. Provides that fees may not be paid for persons, units of local government, or school districts that have legal representation available through a title insurer. Provides that fees may not exceed $100,000 in fiscal year 2001 and $100,000 in fiscal year 2002 (instead of $100,000 total.) Requires the Attorney General to submit a report to the General Assembly by March 15, 2002, concerning the payment of fees. Effective June 30, 2001.
Public Act 92-0021 (HB 2563)
Amends the Illinois Criminal Justice Information Act to change the membership of the Illinois Criminal Justice Information Authority from 18 to 20 members by adding the State Appellate Defender and an additional member of the general public to the Authority. Effective July 1, 2001.
Public Act 92-0022 (HB 2900)
Among other things, amends the Attorney General Act to authorize the Attorney General to intervene in, initiate, enforce, and defend all legal proceedings on matters relating to telecommunications when necessary to protect the rights of Illinois citizens. Amends the Public Utilities Act to provide that the Public Utilities Act is not intended to limit the power of state's attorneys and the Attorney General under the Consumer Fraud and Deceptive Business Practices Act. Authorizes the Commerce Commission to seek a court order to stop violations by telecommunications carriers. Authorizes the Commission to assess civil penalties on telecommunications carriers. Authorizes penalties of up to 0.00875% of a carrier's gross intrastate annual telecommunications revenue. Establishes a procedure for recovery of civil penalties by the Commission. Prohibits telecommunications carriers from unreasonably refusing access to operation support systems to other carriers and from failing to provide unbundled services as required by the Illinois Commerce Commission or the Federal Communications Commission. Establishes competitive market requirements for carriers that offer both competitive and noncompetitive services. Establishes procedures for the authorization and verification of a subscriber's change in telecommunications carrier. Amends the Consumer Fraud and Deceptive Business Practices Act to prohibit a telecommunications carrier from offering products or services to be billed on a telephone bill except in compliance with the Public Utilities Act. Effective June 30, 2001.
Public Act 92-0032 (SB 610)
Amends the Illinois Vehicle Code. Defines the term "personally identifying information" to mean information that identifies an individual, including his or her photograph, social security number, driver identification number, name, address, telephone number, and medical or disability information. Provides that the Secretary of State may limit the sale of certain vehicle or driver data to entities that purchase a minimum number of records. Provides that this information shall not contain personally identifying information unless it is used for one of certain specified purposes. Provides that registration lists purchased from the Secretary of State by sheriffs and chiefs of police may be used for governmental purposes only. Limits the sale of registration lists to sheriffs and chiefs of police. Effective July 1, 2001.
Public Act 92-0054 (HB 513)
Amends the State Employee Article of the Pension Code. Changes the method of calculating interest when purchasing service credit for certain periods of military service. Effective July 12, 2001.
Public Acts 92-0055 and 92-0059
(HB 857 and SB 194)
Amends the Controlled Substance and Cannabis Nuisance Act to provide that the state's attorney may file a complaint to have property abated as a public nuisance after 60 days have elapsed since the owner or owner's agent has failed to comply with recommendations of the state's attorney to abate the nuisance after appearing before the state's attorney. Effective July 12, 2001.
Public Act 92-0058 (SB 138)
Creates the Drug Court Treatment Act. Permits the chief judge of each judicial circuit to establish a drug court program. Contains provisions concerning eligibility for the program, assessment of defendants, and operation of the program. Provides that the program shall include a regimen of graduated requirements and rewards and sanctions, including but not limited to: fines, fees, costs, restitution, incarceration, individual and group therapy, drug