Standing Committee on Government Lawyers
August 2002 Vol. 4, No. 1
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.
(Notice to librarians: The following issues were published in Volume 3 of this newsletter during the fiscal year ending June 30, 2002: October, No. 1; February, No. 2; April, No. 3; June, No. 4.)
Contents
* Government lawyers and the attorney-client privilege
* Someone you should know: Juanita Temple
* Unauthorized practice of law in administrative proceedings
* Attorney General issues opinions
| * | In-sites |
| * | News you can use |
| * | Case law update |
| * | Ethical Considerations in Public Sector Law |
By Chuck Gunnarson, Springfield
It is with much honor and enthusiasm that I provide the Chair's Column for the first edition of the 2002-2003 Committee on Government Lawyers (CGL) newsletter. I have had the opportunity to be a member of CGL since its inception in June 1999. I have seen the good work of the past and present officers and committee members who took a new standing committee of the ISBA, representing a segment of the legal profession that previously had received inadequate attention, and created a voice for the government lawyer. It is my hope that during the upcoming year I can continue to build on the fine efforts of those who preceded me as Chair and provide a means for government lawyers to be heard, as well as for government lawyers to give back to the profession.
During the next year, I hope to initiate a number of programs our Committee has discussed over the last three years. The presentation of a continuing legal education seminar specifically tailored to the ethical issues faced by government lawyers in their everyday practice is being planned for the upcoming year. In addition, the Committee is awaiting the ISBA's approval of a seminar entitled, "Illinois Administrative Practice Before Local Government Administrative Bodies." The seminar, co-sponsored with the Administrative Law and the Local Government Law Section Councils is proposed for presentation this fall. Topics for "brown bag" seminars on subjects of more personal concern to government lawyers, such as retirement planning and pensions, transitioning from the public to private work sector, and similar issues are being discussed for later in the year. The issue of relief from law school debt for those choosing to practice in the public sector is being explored in a number of forms. Our newsletter, which since its first issue has succeeded in providing useful information to all sectors of government practice, will continue to be a valuable tool for the government lawyer. If you have any comments or suggestions on the projects described above, or other projects you think would be of interest to government attorneys, please feel free to contact me at charles.gunnarson@epa.state.il.us with your ideas.
Lastly, on behalf of the CGL, I wish to congratulate Committee member Don Ruff on his receipt of the Presidential Commendation from then-ISBA President Tim Eaton at the April 12, 2002 CGL meeting. Don was a founding member of the CGL, and he has also served with distinction on a number of other ISBA committees. He was instrumental in laying the groundwork for improving the relationship between various government lawyer associations and the ISBA. Moreover, Don played an important role in the creation of the CGL within the ISBA, providing both assistance and a voice to government lawyers throughout Illinois. What makes Don's outstanding work on behalf of government lawyers that much more impressive is that Don is a solo private practitioner in Paris, Illinois. Although he has previously served as the Attorney for the City of Paris, and the Village of Kansas, Illinois, the primary concentration of Don's practice has not been in government representation. Nonetheless, he has seen the similarities between government practice and solo private practice in a small community, where attorneys do not always "choose" their clients, oftentimes work with limited resources and deal with issues affecting the everyday lives of clients and the community. I personally wish to thank Don for his past and ongoing efforts on behalf of government lawyers within the ISBA, and I look forward to working with him on those issues in the future.
Government lawyers and the attorney-client privilege
By Roz Kaplan, Chicago
In In re: A Witness Before the Special Grand Jury 2000-2, No. 01-3386 (7th Cir. April 23, 2002), the Seventh Circuit addressed, at the request of a state official, whether his government attorney could refuse to answer questions posed by a grand jury on the basis of attorney-client privilege. The court of appeals affirmed the district court's conclusion that a "government attorney-client privilege" did not apply in the context of a federal criminal investigation. Thus, the government attorney was required to comply with the subpoena and disclose conversations with the official.
The government lawyer in question was Roger Bickel, who was described in the opinion as "Chief Legal Counsel to the Secretary of State's office," and whose job duties were to provide "legal counsel and advice to [Secretary of State George] Ryan and other Secretary of State officials as they carried out their public duties." Federal prosecutors wanted to talk to Bickel in connection with their investigation of the "licenses for bribes" scandal. When Ryan objected to a voluntary meeting between Bickel and the prosecutors, they subpoenaed Bickel to appear before the grand jury and testify "about all conversations he had with Ryan in his official capacity as General Counsel." The prosecutors also moved to compel Bickel's testimony, and they obtained a letter from Jesse White, Ryan's successor in office, purporting to waive the attorney-client privilege for the office. The district court granted the motion to compel, resulting in an order that Ryan, as the client, was entitled to appeal.
The Seventh Circuit described the client as "the State of Illinois itself, represented through one of its agencies." Stating that the parties conceded the applicability of the attorney-client privilege to a governmental agency in civil and regulatory matters, the court went on to consider whether the privilege applied in a criminal investigation "when the United States seeks information from a government lawyer."
Although it acknowledged the need for uninhibited communications between government officials, the Seventh Circuit was persuaded by the government's argument that the privilege should not apply to protect communications from inquiry in the context of criminal proceedings. It pointed out, first, that while attorneys in the private sector were primarily concerned with protecting their clients from criminal charges, government lawyers "have a higher, competing duty to act in the public interest," and to take actions that would ensure the government client's compliance with the law. The court also reasoned that, since a state agency cannot be held criminally liable by either the state or the federal government, there is "no need to offer the attorney-client privilege as an incentive to increase compliance with the laws." The fact that individual employees may be found guilty of crimes did not require another conclusion, because, the court explained, the only privilege being addressed was that of the office itself, not of its employees. A public official may always choose to consult a private attorney, just as corporate officials must do, in order to receive advice that would be protected by the attorney-client privilege.
The district court also had concluded that Jesse White had the power to waive the office's attorney-client privilege as to conversations that took place before he took office. The Seventh Circuit did not address this issue in its opinion.
Someone you should know: Juanita Temple
By Doris J. Funches, Chicago*
Inspired to pursue a legal career when our country was experiencing political and social change due to Watergate and the Civil Rights Movement, Juanita S. Temple is the epitome of an accomplished attorney, brightened with skill while maintaining a watchful eye on the community. Temple has successfully balanced her home life, her spirituality, and community involvement, while pursuing her legal career.
Temple, currently Assistant Regional Counsel (Region V) in the Office of General Counsel for the U.S. Department of Health and Human Services (HHS), didn't always aspire to be an attorney. With a bachelor's degree in French and literature from Ohio State University, Temple's early ambition leaned toward language and education. Eager to further her educational goals, Temple earned her master's degree in education, then later received her master's degree in French and literature. During this time, Temple began a family as she married and had two children. As our nation began to experience changes, so did Temple as she began to turn her educational focus onto the law.
After receiving her law degree from the Cincinnati Law School, Temple worked at The Grant & Thompson Co. and later accepted a position in the civil division of the Legal Aid Society of Cincinnati. Her time at Legal Aid was a "good fit" for her because the working environment allowed her to spend much needed time with her three children. Upon leaving Legal Aid, Temple continued her public interest career and secured a position as a staff attorney for the Sixth Circuit Court of Appeals. Temple enjoyed more responsibility at the Sixth Circuit when she became a case manager. She managed cases, directed staff, and kept abreast of all legal matters in this circuit.
At this point in her life, Temple experienced another career change. When her husband secured a position as the president of the community college system in Michigan, Temple sought and obtained a position as an Assistant United States Attorney in the criminal appellate division at the Office of the United States Attorney. But Temple's career changes and achievements were not over yet. As her husband, a dedicated academic, advanced in his career, Temple followed suit. When he received another position, this time in Philadelphia, Temple obtained a position in the U.S. Attorney's Office there.
When her husband became chancellor of the City Colleges of Chicago, Temple hung her hat at the U.S. Attorney's Office in Chicago. After spending several years there, Temple made her most recent transition within the area of government service when she accepted her current position at HHS. She emphasized that at HHS, like in all government service, attorneys assist others by making new law or disposing of cases in ways that have a positive effect on everyone. At HHS, Temple notably does this through her focus on the office's nursing home enforcement.
When asked why she switched from her long-term tenure at the U.S. Attorney's office to HHS, she responded that her caseload is much smaller and the pace is more suited to her familial commitments and other interests. This is certainly true, as Temple has always strived to maintain a balance between her home, work, and the community. Temple currently takes care of her mother who has Parkinson's disease. She also has a strong presence in the community as well. She is a member of the Cycle Program, which serves Cabrini Green children, on the board of La Rabida Children's Hospital, which serves children stricken with chronic diseases, and is a member of the Chicago Chapter of Links.
Temple's ambition toward maintaining a balance in her life has definitely paid off. Her children have become successful in their respective areas. One of her sons is a talented musician, while the other is studying economics at the University of Pennsylvania. Temple's daughter is following in her mother's footsteps by studying law and clerking for the Sixth Circuit.
Temple's advice to people is to "keep on keeping on. There will be disappointments, but don't give up." She also remarked that her status as an African-American woman has undoubtedly had an impact on her career. She recommended that persons who encounter adversity should recognize it and yet not accept it.
When asked what her future aspirations were, Temple replied that she would be content "as long as she could try cases." Spoken like a true government lawyer, Juanita S. Temple is definitely someone you should know.
_______________
*Doris J. Funches is a 2002 graduate of DePaul University College of Law.
Unauthorized practice of law in administrative proceedings*
By Claire A. Manning, Chairman, Illinois Pollution Control Board and Richard R. McGill, Jr., Senior Attorney for Research and Writing, Illinois Pollution Control Board
Administrative agencies deciding contested cases need to be aware that the parties before them may have to be represented by an attorney. An agency's decision or order in a case improperly brought by a non-attorney could be challenged as void. Below we will discuss how the Illinois Pollution Control Board (Board) addressed the often-overlooked issue of the unauthorized practice of law in administrative proceedings.
The Board and its procedural rule on attorney representation. Besides promulgating Illinois' environmental regulations, the Board adjudicates cases under the Environmental Protection Act (415 ILCS 5/1 et seq.), such as enforcement actions, permit appeals, and variance requests. Board decisions are appealable directly to the Appellate Court. When the Board's completely new set of procedural rules took effect in January 2001, they codified a requirement dictated by Illinois case law and statute: a person must be a licensed attorney to appear before the Board on behalf of another in an adjudicatory proceeding. See 35 Ill. Adm. Code 101.400(a)(2). The Board's procedural rule on attorney representation came as no surprise. As discussed below, the Board several years earlier decided the unauthorized practice of law issue in an actual case before it.
Under the procedural rule, an environmental consultant cannot represent his or her client before the Board in an appeal of an Illinois Environmental Protection Agency ("Illinois EPA") decision on a permit application, proposed cleanup plan, or Underground Storage Tank Fund reimbursement request. A corporate officer or employee cannot represent the corporation asking the Board to reverse a local government's denial of landfill siting. A city engineer cannot represent the city seeking a variance or adjusted standard, i.e., relief from a Board environmental regulation. These are just a few examples.
Attorney representation, however, is not required in all Board proceedings. An individual can represent himself or herself before the Board in an adjudicatory proceeding, regardless of whether he or she is an attorney. See 35 Ill. Adm. Code 101.400(a)(1). The Board has also held that an unincorporated sole proprietorship need not be represented by an attorney. See Riverview FS v. Illinois EPA, PCB 97-226 (July 10, 1997). Additionally, non-attorneys may represent themselves and others in rulemaking proceedings, where the Board acts in its quasi-legislative capacity to develop environmental standards and regulations. See 35 Ill. Adm. Code 101.400(d), 102.100(b). The Board distinguishes its rulemakings from its adjudicatory proceedings, which are contested cases in which the Board decides the legal rights and responsibilities of specific parties appearing before the Board.
What about a pending case improperly initiated by a non-attorney? In 1997, the Board, in a case of first impression, ruled on a motion to dismiss an adjudicatory proceeding for lack of attorney representation. In that case, Petition of Recycle Technologies, Inc. for an Adjusted Standard Under 35 Ill. Adm. Code 720.131(c), AS 97-9 (July 10, 1997), Illinois EPA moved the Board before hearing to dismiss an adjusted standard petition because it was filed on behalf of the corporation by its owner, who was not an attorney. In ruling on the motion, the Board applied Illinois case law and statutes dealing with the prohibition on non-attorney representation. For example, the Attorney Act prohibits any person from practicing as an attorney or counselor at law in Illinois without a license (see 705 ILCS 205/1), and the Corporation Practice of Law Prohibition Act prohibits corporations from practicing law or appearing as an attorney at law in any court in Illinois or before any judicial body (see 705 ILCS 220/1).
It does not matter that an administrative agency is not a court. In Recycle Technologies, the Board relied on People ex rel. Chicago Bar Ass'n v. Goodman, 366 Ill. 346, 8 N.E.2d 941 (1937), in which the Illinois Supreme Court found a non-attorney guilty of the unauthorized practice of law for representing others before the Industrial Commission. The court stated that "[i]t is immaterial whether the acts which constitute the practice of law are done in an office, before a court, or before an administrative body. The character of the act done, and not the place where it is committed, is the factor which is decisive of whether it constitutes the practice of law." Goodman, 366 Ill. at 357, 8 N.E.2d at 947. Accordingly, the Board held that the practice of law may include activities before an administrative agency such as the Board, which functions in its quasi-judicial capacity when deciding contested cases.
What is the "practice of law?" This was the crux of what the Board had to decide in Recycle Technologies. Generally, the courts have held that the practice of law is "the giving of advice or rendition of any sort of service...when the giving of such advice or rendition of such service requires the use of any degree of legal knowledge or skill." People ex rel. Chicago Bar Ass'n v. Barasch, 406 Ill. 253, 256, 94 N.E.2d 148, 150 (1950) (quoting People ex rel. Illinois State Bar Ass'n v. Schafer, 404 Ill. 45, 50, 87 N.E.2d 773, 776 (1949)). In Recycle Technologies, the Board held that representing the corporation in the adjusted standard proceeding, a contested case, necessarily involves the practice of law. The Board discussed court decisions finding that the practice of law includes representing a corporation in pre-trial and trial proceedings. See, e.g., Housing Authority of Cook County v. Tonsul, 115 Ill. App. 3d 739, 742, 450 N.E.2d 1248, 1250 (1st Dist. 1983). The Board stated that any person representing the corporation would need to appear at a public hearing on behalf of the corporation and present argument and precedent to support a favorable decision on the adjusted standard request. The Board held that these activities require legal knowledge or skill and therefore constitute the practice of law.
Are there exceptions for non-attorneys? The Board found that no exceptions in the Attorney Act or the Corporation Practice of Law Prohibition Act were available under the facts of Recycle Technologies. For example, those statutes allow non-attorneys to represent corporations before small claims courts. See 705 ILCS 205/11, 220/5. In addition to allowing an individual lay person to appear pro se, the Attorney Act allows non-attorneys to represent others in proceedings before several boards and commissions to the extent that their respective rules allow: either panel of the Illinois Labor Relations Board under the Illinois Public Labor Relations Act; the Illinois Educational Labor Relations Board under the Illinois Educational Labor Relations Act; the State Civil Service Commission; the local Civil Service Commissions; and the University Civil Service Merit Board. See 705 ILCS 205/1, 11.
How should an agency handle a case improperly brought by a non-attorney? The Board in Recycle Technologies had to decide whether to dismiss the case on the ground that a non-attorney filed the adjusted standard petition on behalf of the corporation. Illinois courts generally have held that a proceeding improperly initiated by a non-attorney is void, even if all subsequent appearances are through an attorney. See, e.g., Leonard v. Walsh, 73 Ill. App. 2d 45, 47, 220 N.E.2d 57, 58 (4th Dist. 1966). However, there are exceptions--dismissal is a drastic remedy not required in all cases. See, e.g., Janiczek v. Dover Management Co., 134 Ill. App. 3d 543, 546, 481 N.E.2d 25, 27 (1st Dist. 1985) (under unique circumstances, dismissal would defeat the purposes of the prohibition on non-attorney representation).
In Recycle Technologies, the Board noted that its then-current procedural rule allowed non-attorneys to represent corporations in adjusted standard proceedings and that Illinois EPA had never before objected to that procedural rule. The Board also found that dismissal was not necessary to serve the purposes of the prohibition on non-attorney representation: "to protect litigants against the mistakes of the ignorant and the schemes of the unscrupulous and to protect the court itself in the administration of its proceedings from those lacking the requisite skills." Recycle Technologies, AS 97-9, slip op. at 6 (quoting Janiczek, 134 Ill. App. 3d at 546, 481 N.E.2d at 27). Under these special circumstances, the Board denied Illinois EPA's motion to dismiss, and instead allowed time for the corporation to retain an attorney and for that attorney to file an appearance and an amended petition.
Can any attorney represent another person in a case? Except as described below, the Board's procedural rules require that an attorney representing another in an adjudicatory proceeding before the Board be licensed to practice law in Illinois. See 35 Ill. Adm. Code 101.400(a)(2). In other words, the attorney must be registered with the Attorney Registration and Disciplinary Commission as an active member of the Illinois bar. The Board conducts no credentials review of attorneys based on environmental or administrative law experience. Functioning as an environmental "court" for non-criminal pollution cases, the Board, consistent with Illinois Supreme Court Rule 707, entertains motions of out-of-state attorneys to appear before the Board pro hac vice in specific adjudicatory proceedings. See 35 Ill. Adm. Code 101.400(a)(3).