Standing Committee on Government Lawyers
March 2001 Vol. 2, No. 2
Statements or expressions of opinion or comments appearing herein are those of the editors or contributors, and not necessarily those of the association or section.
Contents
* Attorney general issues opinions
* State's attorneys and the First Amendment
* Opinions involving state's attorneys
| * | Legislative preview |
| * | 711 means more than just a quick cup of coffee |
* Someone you should know: Madalyn Maxwell
* Standing committee approves strategic plan
* Committee on Government Lawyers co-sponsors Law Ed Seriesprogram
* In-sites
By Lynn Patton, Springfield
This edition of the newsletter of the Standing Committee on Government Lawyers reflects the diversity of the interests, goals, experiences and practice areas of the committee's constituency. First, we invite you to meet long-time government attorney Madalyn Maxwell and join in the celebration of her 50th anniversary of bar admission. Assistant Professor Sheila Simon of the Southern Illinois University School of Law then discusses the use of senior law students and law graduates by government agencies pursuant to the provisions of Supreme Court Rule 711.
Looking for a new position? Peg Tanner outlines the ISBA's CareerNet service that provides government lawyers with a means of searching for other government employment opportunities from the privacy of their own computer. We also debut the recurring column "First person," wherein various lawyers employed by units of government describe their positions and the duties related thereto.
The In-sites article in this issue of the newsletter focuses on obtaining information from State government agencies. Moreover, we provide the second part of Judge Nancy J. Katz' "Ethics corner" column initiated in the November 2000 newsletter, and a review of the committee's own strategic planning efforts. The newsletter then concludes with updates on pending legislation, recently issued court and Attorney General opinions and upcoming continuing legal education programs.
As always, we invite our readers to share their thoughts and ideas with the committee by submitting articles and letters to the editor for publication in the newsletter or by suggesting a topic that you would like to see addressed in a future issue of the newsletter. We look forward to hearing from you. Please send any comments or suggestions to our ISBA staff liaison at Teri@isba.org.
Attorney general issues opinions
By Lynn Patton, Springfield
Under section 4 of the Attorney General Act (15 ILCS 205/4 (West 1998)), the Attorney General is authorized, upon request, to give written legal opinions to state officers and state's attorneys on matters relating to their official duties. The following is a summary official opinions 00-009 through 00-018 and informal opinions I-00-027 through I-00-049 that may be of general interest to the government bar. (See, "Attorney general issues opinions on the State Gift Ban Act," ISBA Standing Committee on Government Lawyers newsletter, April 2000, Vol. 1, No. 1, for a summary of informal opinions I-00-001 through I-00-006 and "Attorneys general issue opinions addressing ethical concerns," ISBA Standing Committee on Government Lawyers newsletter, November 2000, Vol.2, No.1, for a summary official opinions 00-001 through 00-008 and informal opinions I-00-007 through I-00-026.)
Copies of an opinion may be requested by contacting the Opinions Bureau in the Attorney General's Springfield office. Copies official opinions may also be found on the Internet at <http://www.ag.state.il.us/opinions.html>.
Opinion No. 00-011, issued October 12, 2000: county's contribution to a private legal defense fund. Under article VIII, section 1 of the Illinois Constitution of 1970, public funds may be expended only for a public purpose. Defraying the costs of purely private litigation does not serve a proper public purpose. Because the plaintiff's claims in Miami Tribe of Oklahoma v. Walden, Docket No. 4:00 CV 4142 (United States District Court, Southern District of Illinois) directly affect real property belonging to the county and the county's taxing and regulatory powers, however, it is not purely private litigation. Therefore, in the circumstances set forth in the opinion, a county board could properly determine that contributions to a private legal defense fund serve a public purpose. Ill. Const. 1970, art. VIII, sec. 1.
Opinion No. 00-012, issued October 12, 2000: access to county recorder's records via the Internet. (1) The county recorder, as an exercise of his or her authority to control the internal operations of the recorder's office, may establish and maintain a Web site that provides Internet access to information contained in the records of the county recorder. (2) The county recorder has no authority to assess a fee against persons or businesses desiring Internet access to the county recorder's files. (3) The county recorder may not use moneys in the county recorder's automation fund to establish and maintain a Web site. (4) Because the county recorder is under no duty to maintain a Web site, the determination of which public records or portions thereof to post on a Web site is a matter within the discretion of the county recorder. 5 ILCS 140/3 (West 1998); 55 ILCS 5/3-5005.2, 3-5018 (West 1998).
Opinion No. 00-018, issued December 29, 2000: application of the Prevailing Wage Act to grant recipients. The Prevailing Wage Act will apply to those not-for-profit corporations that are supported by a publicly funded stream of revenue and those which receive significant income and funding from public sources. Application of the Act to those institutions that receive one-time grants of public funds for specific purposes must be considered on a case by case basis to determine whether funding for a particular project constitutes support for the institution itself. Receipt of public funds for the construction of a fixed work for public use will subject the project to the provisions of the Act. 820 ILCS 130/2 (West 1999 Supp.).
Informal Opinion No. I-00-028, issued July 6, 2000: constitutionality of an Illinois Commerce Commission ruling requiring Commonwealth Edison to recover the costs of burying power lines. A violation of the contracts clause in both the federal and state constitutions occurs where a change in state law operates as a substantial impairment of a contractual relationship. A ruling by the Illinois Commerce Commission, which requires Commonwealth Edison to recover the costs of burying power lines within a municipality pursuant to a franchise agreement it entered into with the municipality from only those consumers living within the municipality's corporate limits, does not substantially impair a contractual relationship where the parties to the agreement should have foreseen the issuance of the ruling. U.S. Const. art. I, sec. 10, cl. 1; Ill. Const. 1970, art. I, sec. 16.
Informal Opinion No. I-00-029, issued July 20, 2000: payment of legal services from tort liability tax funds. Sections 9-103 and 9-107 of the Local Governmental and Governmental Employees Tort Immunity Act authorize the expenditure of tort liability tax funds for "legal services directly attributable to the insurance ... program." Consequently, the costs associated with obtaining legal advice, or services requiring the use of legal skills or knowledge, that are directly attributable to an insurance, a self-insurance or joint self-insurance program may be paid out of tort liability tax funds. Moreover, the attorney's office expenses, the supplies and equipment associated therewith and the salary of support staff for the office may also be paid out of tort liability tax fund revenues, but only if those costs are directly related to the legal services required by the insurance or self-insurance program. 745 ILCS 10/9-103, 9-107 (West 1998), as amended by Public Act 91-0628, effective January 1, 2000.
Informal Opinion No. I-00-037, issued September 1, 2000: local professional development committees and regional professional development review committees. (1) Local Professional Development Committees and Regional Professional Development Review Committees are statutorily created public bodies that are subject to the provisions of the Open Meetings Act. (2) Local Professional Development Committees, as subsidiary bodies of school districts, and Regional Professional Development Review Committees, as administrative and advisory bodies associated with the regional superintendents of education, are "local public entities" to which the provisions of the Local Governmental and Governmental Employees Tort Immunity Act are applicable. 5 ILCS 120/1.02 (West 1998); 745 ILCS 10/1-206 (West 1998).
Informal Opinion No. I-00-038, issued August 29, 2000: delegation of Commissioner of Banks and Real Estate's authority to sign orders of summary suspension. Section 0.8 of the Office of Banks and Real Estate Act expressly authorizes the Commissioner of Banks and Real Estate to delegate to his or her deputy commissioners any power authorized by law to be performed. Section 20-65 of the Real Estate License Act of 2000 specifically authorizes the Commissioner to temporarily suspend the license of a real estate broker, salesperson or leasing agent. This suspension power may be delegated to a deputy commissioner. The authority to issue temporary suspension orders may not be delegated to other employees of the Office of Banks and Real Estate. 20 ILCS 3205/0.8 (West 1998); 225 ILCS 454/ 1-10, 20-65 (West 1999 Supp.).
Informal Opinion No. I-00-040, issued September 27, 2000: local law enforcement officers' use of throw phones under Illinois' eavesdropping statutes. Under section 108A-6 of the Code of Criminal Procedure of 1963, a law enforcement officer may use an eavesdropping device in an emergency situation upon approval of the state's attorney, or without it if a reasonable effort has been made to contact the state's attorney. The use of a "throw phone" in a hostage or barricade situation by local law enforcement officers would appear to fall squarely within the provisions of section 108A-6 of the Code, and the use of throw phones by law enforcement officers would not be unlawful in an emergency situation, as long as the procedures set forth in section 108A-6 are followed. 720 ILCS 5/14-2 (West 1999 Supp.); 725 ILCS 5/108A-6 (West 1998).
Informal Opinion No. I-00-042, issued October 16, 2000: city human relations commission subject to the Open Meetings Act. The city of Galesburg's Human Relations Commission is a "public body" subject to the provisions of the Open Meetings Act. To the extent that the Commission holds closed conciliation conferences that are not attended by a majority of a quorum of the commissioners of the Human Relations Commission, there is no "meeting" for purposes of the Open Meetings Act. Section 11-11.1-1 of the Illinois Municipal Code authorizes human relations commissions to hold closed meetings for the purpose of conciliating complaints of discrimination in housing. With respect to other hearings conducted by the commissioners or other meetings of the Commission itself, the Commission may be able to go into closed session under subsection 2(c)(4) of the Open Meetings Act to deliberate upon the evidence or testimony received. 5 ILCS 120/1.02 and 2(c)(4) (West 1998).
Informal Opinion No. I-00-044, issued October 23, 2000: candidate access to and conduct within a polling place. Sections 7-34 and 17-23 of the Election Code provide that candidates seeking office in a district or municipality encompassing two or more counties shall be admitted to any and all polling places throughout such district or municipality. Sections 7-34 and 17-23 further provide, however, that such candidates who desire to be admitted to polling places on election day in such district or municipality shall be required to have proper credentials from the appropriate election authorities. If a candidate does not possess proper credentials, the judges of election should refuse to admit the candidate to the polling place or instruct the candidate to leave the polling place. Candidates who are properly admitted to a polling place must comply with all rules governing the conduct of persons within a polling place. 10 ILCS 5/7-34, 17-23 (West 1999 Supp.).
Informal Opinion No. I-00-048, issued November 3, 2000: reproduction of the Great Seal of the State of Illinois on a mausoleum. The placement of a reproduction of the Great Seal of the State of Illinois on the mausoleum of a former constitutional officer is not an affixing or use of the "Great Seal of the State." Consequently, the Secretary of State is under no duty to review the propriety of the request. Ill. Const. 1970, art. V, sec. 16.
State's attorneys and the First Amendment
Richard Devine, State's Attorney of Cook County, et al. v. Mary Robinson, Administrator of the Attorney Registration & Disciplinary Commission, __ F. Supp. 2d __, 2001 WL 111163 (N.D. Ill., January 22, 2001). Richard Devine and nine other state's attorneys, including the president of the Illinois State's Attorneys Association, sought declaratory and injunctive relief against the Administrator of the ARDC, claiming that provisions of Rules 3.6 and 3.8 of the Illinois Rules of Professional Conduct infringed on their First Amendment rights and were unconstitutionally vague and overbroad. Judge Grady dismissed the case for failure to allege a justiciable case or controversy. As such, the court did not definitively construe the Illinois rules, but it noted that they "are fairly susceptible to an interpretation that would render them constitutional."
Rules 3.6 and 3.8 address issues of trial publicity and a lawyer's ethical duty to avoid extrajudicial statements that would pose a "serious and imminent threat" to the fairness of a judicial proceeding. Noting that the rules had never been construed by the Illinois Supreme Court and that the state's attorneys did not allege "which kinds of communications the plaintiffs wish to make but are forbidden to make," the court concluded that the challenged portions of the rules "may be fairly interpreted in a manner that complies with the First Amendment." Specifically, Rule 3.6(b), which contains an enumeration of subjects that "would pose a serious and imminent threat to the fairness of a proceeding," may reasonably be interpreted as providing examples of subjects that would be barred under the general proscription of 3.6(a) (a provision that was not challenged by the state's attorneys), rather than as an absolute prohibition of speech without regard to its capacity to pose such a threat. As to Rule 3.6(d), which provides a lawyer with the limited right to respond to statements made by others where required to protect a client from substantial undue prejudice, the court concluded that the provision seemed clearly to intend to provide attorneys "with a shield from unfair publicity, not a sword to damage their opponent's case," as the state's attorneys suggested, and it found nothing to support their conjecture that Rule 3.6(d) would apply only to non-prosecutors.
Addressing the state's attorneys' vagueness complaint regarding Rule 3.8(c), which requires prosecutors to exercise reasonable care to prevent persons assisting or associated with them from making extrajudicial statements that the prosecutors cannot make, Judge Grady explained that "ethical rules need not spell out a prosecutor's obligations to every conceivable person in every conceivable situation in order to avoid a vagueness challenge," and he pointed out that other attorneys face similar obligations to supervise assistants and associates. A rule is not vague, the court explained, "simply because it requires professionals to make the necessary effort to determine who these individuals are."
Rule 3.8(d), the other provision challenged by the state's attorneys, requires a criminal prosecutor to refrain "from making extrajudicial comments that would pose a serious and imminent threat of heightening public condemnation of the accused," with exceptions to allow the prosecutor to inform of the nature and extent of the prosecutor's action and to allow statements "that serve a legitimate law enforcement purpose." Responding to the charge that this rule is unconstitutionally overbroad, the court observed that the state's attorneys did not explain "why they believe the First Amendment guarantees a prosecutor the right to speech that heightens condemnation of the accused but neither serves any law enforcement function nor informs the public of the prosecutor's action," and the court concluded that there was, in fact, no such right.
By Hon. Nancy Katz, Chicago
In the last issue of our newsletter, the Ethics corner included the first installment of a digest of ISBA ethics opinions of interest to government lawyers. That installment covered ethical dilemmas facing public officials and lawyers employed by government agencies. This second installment includes a digest of ISBA ethics opinions that specifically address problems of state's attorneys and public defenders.
The ISBA Advisory Opinions are published as an educational service to ISBA members. While not binding authority, they provide guidance to lawyers regarding the interpretation and application of the Illinois Rules of Professional Conduct, and they are frequently cited in caselaw. The opinions issued over the last twenty years are available on the ISBA Web site under Illinois Law, ISBA Ethics Opinions. The Illinois Rules of Professional Conduct are found in Article VIII of the Illinois Supreme Court Rules. The Rules are also available on the ISBA Web site, under Illinois Law, Supreme Court Rules.
Where an ethics opinion was adopted prior to the passage of the Illinois Rules of Professional Conduct in 1991, citation is given both to the Illinois Code of Professional Responsibility, the predecessor ethics code (cited as "ICPR"), and to the current Illinois Rules of Professional Conduct (cited as "IRPC.") I have taken the liberty of rephrasing the topic of the opinion from that posted on the ISBA Web site in order to focus on the issues of relevance to government lawyers.
Opinions involving public defenders
Opinion No. 784 (July 1982) Public defender's referrals of cases; attorney fees
It is not improper for a part-time public defender to refer cases involving police misconduct to other private counsel and to receive a referral fee. While the public defender is a county employee, the county does not direct his activities and the public defender's client is the accused person and not the county. Thus no conflict of loyalty exists. The public defender could personally represent the defendant in the civil claim, and as long as the public defender observes the requirements of Rule 2-107 of the ICPR involving referral fees, (predecessor to Rule 1.5 of the IRPC) he can refer the matter to other counsel and receive a referral fee. A different rule may apply, however, if the office of the public defender was a full time position and if the public defender or his or her assistants are prohibited by contract or by the terms of the appointment from engaging in the private practice of law.
Opinion No. 85-14 (May 1986) Conflict of interest; sharing office space
There is no per se rule against two assistant public defenders who share office space but maintain separate law practices representing defendants with conflicting interests. Pursuant to People v. Robinson, 79 Ill. 2d 147 (1980) and People v. Nelson, 82 Ill. 2d 67 (1980), office sharing alone does not preclude the attorneys from exercising independent professional judgment on behalf of the clients. Instead, a careful analysis of the nature of the friendship and working relationship between the attorneys must be made to determine whether the office sharing arrangement amounts to an "affiliation" between the two lawyers, which would preclude the representation. Pursuant to Rules 5-101(a) and (c), (predecessor to Rule 1.7 of the IRPC) full disclosure of the possible effects on the representation and consent of the client must be obtained. In addition, pursuant to Canon 4 (predecessor to Rule 1.6 of the IRPC), each attorney must be able to preserve the confidences and secrets of his or her client. Finally, the attorneys must not utilize a common secretary in any way in connection with the case.
Opinion No. 87-4 (January 1988) Conflict of interest; representation of client adverse to county
A part-time public defender may represent a private client against the county. The public defender has no attorney-client relationship with the county, and is permitted by statute to engage in the private practice of law. However, because the public defender's compensation is fixed by the county board, the public defender may have a personal interest in maintaining the good will of the county government. Hence, pursuant to Rule 5-101 of the ICPR (predecessor to Rule 1.7 of the IRPC), full disclosure of the potential conflict of interest caused by the public defender's employment relationship with the county and consent from the private client is required.
Opinion No. 89-7 (November 1989) Duty to report lawyer misconduct to ARDC
A public defender preparing post-conviction petitions who becomes aware of allegations of ineffective assistance of counsel is not required to report every such allegation to the ARDC. If the lawyer obtains knowledge that the claimed ineffective assistance of counsel includes misconduct involving illegal conduct involving moral turpitude or conduct involving dishonesty, fraud, deceit or misrepresentation, and that knowledge is not privileged, the lawyer must report the misconduct to the ARDC, pursuant to ICPR Rules 1-102(a)(3) and (4) and 1-103(a) (predecessor to IRPC Rules 8.3 and 8.4). See also In re Himmel, 125 Ill.2d 531 (1988).
Opinion No. 90-24 (March 9, 1991) Conflict of interest; married lawyers
An assistant public defender is not automatically disqualified from representing clients in felony cases involving officers employed by cities represented by the public defender's spouse's firm. The ABA Model Rules specifically per