Standing Committee on Government Lawyers
August 2003 VOL. 5, 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 4 of this newsletter during the fiscal year ending June 30, 2003: August, No. 1; November, No. 2; December, No. 3; February, No. 4; May, No. 5.)
Contents
* Reflections on Donald E. Ruff: Illinois lawyers have lost a good friend
* A short course on advanced directives
* Someone you should know: Jan Paul Miller
* In-sites
| * | State's attorney's efforts recognized |
| * | News you can use |
| * | Case law update |
By Marc Christopher Loro
Welcome to the first installment of the fifth volume of the newsletter of the Standing Committee on Government Lawyers (CGL) edited again this year by Kate Kelly and Lynn Patton.
I am devoting my first column to a discussion of our agenda and goals for the coming year, but first, on behalf of those who served with him last year and since the creation of the CGL, I want to express our appreciation to Charles Gunnarson for his excellent service as chair this past year and for his service on the committee in several capacities over the last four years. We look forward to continuing to work with him on the many issues that confront the committee and the ongoing projects which he initiated or carried on as chair. I have no doubt that the CGL will continue to benefit from his wisdom, experience, and dedication to the mission of the committee in the years ahead.
Our first responsibility this year is to integrate the goals of ISBA President Terry Lavin into the work of the committee. President Lavin has emphasized his desire that each ISBA committee and section council work on mentorship and membership. While President Lavin will elaborate himself, suffice it to say at this point that mentorship is every experienced attorney's obligation.
With respect to membership, President Lavin has requested that each ISBA member recruit at least one new member to the ISBA. It has always been difficult to recruit government lawyers into bar associations and was one of the reasons for the creation of the CGL. Membership has always been at the top of the CGL's agenda. Our task is to demonstrate to government lawyers that there are advantages to membership in the ISBA. That effort will be led this year by two very able lawyers, Donna Del Principe and Paul Logli. They have already begun exchanging ideas, and I expect that they will share the results in an upcoming issue of the newsletter. We will also build upon the ideas of last year's Membership chair, Pat Hughes.
The advent of mandatory continuing legal education provides one good reason to join the ISBA. We should be thinking now about how to serve government lawyers in terms of presenting educational seminars, hosting luncheon speakers, and creating other opportunities to pick up CLE credits. The ISBA will continue to be at the forefront of this endeavor, and the earlier that we prepare for this opportunity, the greater will be the rewards. One such example is the ethics seminar which we are co-sponsoring with the Government Bar Association (GBA) on September 12 in Springfield. The program was well received last year in Chicago. I hope that you will be able to attend and participate in this downstate presentation.
Another point of emphasis this year will be our attempt to integrate our work more fully with that of other section councils/committees and affiliated bar associations. Lynn Patton, who this year is chair of the ISBA's Committee on Bar Services & Activities, has asked us to work with that committee on an ad hoc basis to review the dues issue and identify other issues of concern to both committees. I also hope that we will be able to join with the GBA and with other ISBA groups to work on projects that would be of benefit and of interest to our constituents.
In addition, I would like to pursue the recognition of senior government attorneys for their years of dedicated service. Last year's CGL agreed upon the qualifications for recognition and some steps to implement the project. While we await the approval of the Board of Governors, each of us can compile a list our acquaintances who qualify for this recognition (20 years of government service and five years of ISBA or affiliated bar association membership). I intend to move rapidly if/when this approval is given.
In that same vein, last year the CGL successfully nominated Madalyn Maxwell, a highly respected and skilled former Assistant Illinois Attorney General, as a Laureate in the Academy of Illinois Lawyers . This is the highest honor that the ISBA can bestow upon its members. Last year we were able to muster the time and resources to nominate two attorneys. We would like to do so again this year. Anyone who has a worthy candidate in mind should contact me or the co-chairs of the Program and Services Subcommittee, Rosalyn Kaplan and Nancy Easum, by mid-September.
Another important goal this year is to pursue implementation, at least within state government, of the ISBA Resolution in support of bar association activities by government lawyers. The ISBA's Board of Governors passed this resolution in October 2001. It "encourages governmental entities at all levels to permit government lawyers to serve in leadership capacities within professional associations and societies...(and) to adopt standards that would authorize government lawyers to: (1) Make reasonable use of government law office and library resources and facilities ....(2) Utilize reasonable amounts official time for participation in such activities. (3) Encourage governmental entities to provide funding for the payment of lawyer licensing fees." We are hoping to discuss this subject with the new administrations of the executive branch.
Finally, it is my legal career ambition to obtain some kind of recognition from the Supreme Court of the ethical dilemmas and responsibilities of government lawyers, especially those who are employed by local, state and federal agencies. I raised this subject at last year's ISBA Annual Meeting, but have not had time to follow up with a specific proposal. It is my intention to elaborate on this issue in future editions of the newsletter during the course of this year.
It is my firm belief that the quality of one's ISBA experience depends upon how much one puts into it. Since its creation, I have been impressed by the quality, diversity, and experience of those who have led and been appointed to serve as members of the CGL, and this year's group is no exception. I expect, with the commitment and active participation of the committee and those among you who wish to join us in this endeavor, that we will have another productive year.
I hope that you will consider joining us in our efforts to improve the quality of the legal and work experience of government lawyers at all levels of government and in every corner of this state.
I look forward to serving with you, as well as to serving your needs. Please do not hesitate to call upon me during the course of the year if there is something that you wish to discuss or if I may be of service.
Reflections on Donald E. Ruff: Illinois lawyers have lost a good friend
By John E. Thies, Urbana
While I have difficulty remembering much about my first meeting with Don Ruff--I believe it took place at an annual meeting in Lake Geneva--I vividly remember the second. It was 1989 and the two of us were asked to travel to Springfield to meet with a group of government lawyers who were interested in discussing a more formal role for their constituency in the ISBA. I was a fledgling member of the ISBA's Standing Committee on Membership & Bar Activities (MBA) of which Don was a veteran. I am not certain why we were paired together (other than what I now believe to be serendipity), but it was the beginning of a friendship that would continue until Don's passing on July 11, 2003.
It is interesting to me that one of Don's legacies within the bar dates from that very first meeting in Springfield 14 years ago and came to pass only during the last years of his life. The ISBA now has a thriving Standing Committee on Government Lawyers, but the seed was planted on that fall day in 1989. It germinated during Don's years on MBA (which he chaired during 1993-1994) and it bloomed when Don joined this new committee as a member (even though he was a small firm general practitioner and not technically a "government" lawyer). While there are a number of individuals who were instrumental in advancing the ISBA's commitment to this important membership group, each will tell you that Don was the most solid of supporters.
Don also left other legacies within the bar. He worked tirelessly for years on MBA. Aside from chairing the committee, he also led its recruitment and retention efforts for a time and worked on projects too numerous to mention. Don was also committed to the process of evaluating judges and served on the Standing Committee on Judicial Advisory Polls (chairing the committee during 2001-2002). This last committee is not an easy assignment. However, perhaps because he was the son of a former Edgar County judge, Don deftly navigated the sometimes treacherous waters of judicial evaluation. Don did all of this while maintaining a very active practice in what we used to call "Greater" Paris.
For these and other accomplishments, Don was presented an ISBA Presidential Commendation in 2002. We were all so proud when he received it. Don accepted it with such humility, and I know that he greatly valued what it represented--a lifetime of distinguished service to Illinois lawyers. The last time I visited Don in Paris, I noticed the award next to the recliner where he spent so many of his final days.
From my visits with Don over the years, I learned that he was also strongly committed to his church and community. I know that one of his favorite civic activities was his service as chair of the Paris library board. You only had to walk into a Paris coffee shop or the circuit clerk's office with Don to know how respected he was. It makes me wonder what this community will do without him.
Any tribute to Don would be woefully inadequate without a discussion of his sense of humor and gift of gab. He tried to make me laugh in virtually every conversation I ever had with him but one--our last, when it was clear that he was in his last days. Don loved to tell jokes and could talk for hours. He was always a gentleman, never took himself too seriously, and was such a good-natured fellow. In my experience, Don was only "defensive" when it came to protecting his friends and family, or his beloved "down-state." He was such a loyal friend to me and so many others around the State.
Lastly, something should be said about that grace with which Don faced his terminal illness. Don was diagnosed with pancreatic cancer in December of 2001 (and given three to six months to live). Defying the odds, Don continued to practice beyond that time period and spent much of his time visiting with friends and maintaining his correspondence. He even took a trip to an ancestral home in Pennsylvania. Throughout this time--a period of 19 months--I know that Don was greatly aided by his family and many friends.
On a sad note, the extra time Don was given allowed him to watch two of the dear friends he met through the bar--John Sheats and Joe Schneider--predecease him. I know that this was hard for Don as he watched from afar. Although--and I told Don this on several occasions--perhaps there was a reason for this, as I know that John and Joe saw Don's conviction and attitude as an inspiration to them (as theirs was to Don). After John and Joe died, Don always expressed great concern for their surviving spouses (respectively, Tish and Lina). I know that this was very meaningful to them. My view of what the ISBA is and has to offer was greatly influenced by having the good fortune of knowing these three fine men.
Don died the way that he lived--with great dignity. While he will be missed by so many, I am comforted by my memories of Don's smile, his laugh, and the example he set for selfless service to the members of the bar.
Editors' note: The Committee on Government Lawyers celebrates Don's legacy and treasures its memories of him as a colleague and friend.
A short course on advanced directives
By James B. Moses, Jr., Peoria
Have you ever been at a social function or family gathering, and approached by a family member or friend with the dreaded words:"You're a lawyer aren't you?" As all doctors are presumed competent to treat all of a person's ills, a lawyer is expected to know every facet of the law. Government attorneys, however, often specialize in an area of the law that might seem esoteric to many. Moreover, it has been a long time since we graduated from law school, completed our bar review courses or engaged in the private practice of law. What is a government lawyer to do?
This is the first in what is hoped to be a series of articles written by government lawyers with expertise in those areas of the law in which family and friends often pose questions. Let's begin with advanced directives.
Advanced directives
There are four types of advanced directives used in Illinois: the Living Will; the Power of Attorney for Health Care; the Power of Attorney for Property; and the Declaration for Mental Health Treatment. Copies of these documents may be obtained from numerous Web sites including the Web site of the Illinois State Bar Association (www.isba.org) (the documents may be found on the ISBA's Web site by entering the name of the advanced directive in the search sections); the Illinois Guardianship and Advocacy Commission (http://gac.state.il.us/forms.html); those of hospitals and other health care providers, (e.g., http://www.memorialmedical.com/directives.htm); or those found by simply going online and typing the name of the document in your search engine of choice.
Until 1987, powers of attorney in Illinois expired upon the disability of the principal (the maker of the document). This, of course, made the documents ineffective as tools to direct care after the person no longer had capacity to direct care. The Illinois Power of Attorney Act (755 ILCS 45/1-1 et seq. (West 2000)) has been modified to provide that unless the agency document states an earlier termination date, the agency continues until the death of the principal. (755 ILCS 45/2-5 (West 2000)).
Living wills
The Illinois Living Will Act (755 ILCS 35/1 et seq. (West 2000)) was the General Assembly's first effort at allowing its citizens to execute advanced directives. While many Illinois residents have executed a living will and those forms remain valid, the General Assembly has greatly expanded the options available and the living will should not be used in most cases when execution of an advanced directive is contemplated. The living will directs the signer's doctor to withhold or withdraw medical treatment that only prolongs the dying process. Food and water, however, may not be removed. Persons in a permanent vegetative state could be left to linger for years while being fed. Therefore, it is strongly recommended that anyone executing an advanced directive and those who have the capacity to execute a new directive use the power of attorney for health care. That document allows greater flexibility and a wider range of choices.
Power of attorney for health care
The Powers of Attorney for Health Care Law (755 ILCS 45/4-1 et seq. (West 2000)) provides Illinois citizens with many more options in directing their end-of-life care as well as their general medical care should they become incapacitated. It is important to note that the statutory short form power of attorney for health care found in section 4-10 of the law (755 ILCS 45/4-10(West 2000)) is merely an acceptable form that may be conveniently used by the public. Other forms may also be used. The power of attorney may be modified in any way to reflect the wishes of the principal of the agency. Note, the second paragraph of the statutory form gives broad powers to the agent, including the authority to consent to placement in a nursing home, electroconvulsive therapy, psychosurgery and admission to a mental health facility. Immediately following that paragraph, however, are several lines the principal may use to expand or restrict the agent's powers. The second paragraph also offers three options that the principal may use to direct end-of-life care. The first directs the agent to consent to the removal of treatment if the burdens of the treatment outweigh the expected benefit. The second provides for life-sustaining treatment unless the person is in a vegetative state. The third option directs the agent to see that the principal receives all treatment without regard for the principal's chance of survival. Food and water are considered medical treatment under the Powers of Attorney for Health Care Law and may not be removed unless specifically authorized.
An agent is required to follow the wishes of his or her principal, even where the principal's desires conflict with the agent's own views. Thus, the most important means to assure a successful outcome of the principal/agent relationship is communication. The principal should not merely appoint an agent, but should also discuss in detail with the agent what he or she expects. This communication, of course, is best done at the time the document is executed and not when a crisis in the health of the principal has occurred.
Because the power of attorney for health care is such a broad grant of authority to the agent by the principal, the law allows the principal to revoke the document with ease. The principal need not have a full understanding of his or her condition in order to revoke the agency and may even do so for no reason at all. (755 ILCS 45/4-6 (West 2000)). This is a two-edged sword. It allows a principal who has changed his or her mind about treatment to modify the document freely as a person experiences changes in his or her life and how he or she feels about a particular type of treatment. It also allows persons who may no longer have the capacity to make reasoned decisions to override the long-standing beliefs they held when they possessed the capacity to consider all of the options dispassionately and with all of their faculties.
Power of Attorney for Property
The Statutory Short Form Power of Attorney for Property Law (755 ILCS 45/3-1 et seq. (West 2000)) is an equally broad grant of authority from a principal to an agent, this time to manage the principal's property. The statutory short form power of attorney for property found in section 3-3 of the law (755 ILCS 45/3-3 (West 2000)) allows the agent to make almost any imaginable transaction, including the sale of real and personal property and the resolution of tax matters. The list of granted powers ends with a grant of authority to deal with "[a]ll other property powers and transactions." Like the power of attorney for health care, the statutory short form power of attorney for property is merely a suggestion and may be freely modified at the time of execution to limit or extend the powers granted to the agent. Termination of a power of attorney for property, again, is liberal but acts taken by the agent before actual notice of the termination are valid. (755 ILCS 45/2-5 (West 2000)).
Declaration for mental health treatment
A declaration for mental health treatment, authorized by the provisions of the Mental Health Treatment Preference Declaration Act (755 ILCS 43/1 et seq. (West 2000)), is a rarely used but potentially powerful grant by a person with mental illness, while competent, to authorize another to make mental health treatment decisions should he or she become incapacitated by mental illness. The principal may authorize the attorney-in-fact, as the agent is called in this document, to consent to psychotropic medications, electroconvulsive therapy and admission to a mental health facility for up to 17 days. Again, the statutory form may be freely modified at the time of execution, with the principal even being able to consent to which medications he or she is willing to take and which he or she is not.
Unlike the power of attorney for health care, a declaration for mental health treatment may not be freely revoked. The principal and at least one physician must certify that the principal has decisional capacity prior to a revocation. (755 ILCS 43/50 (West 2000)). The declaration is not open-ended like the advanced directives previously mentioned but lasts only three years, unless the power under the document has been invoked and the principal is incapable on the third anniversary. If the principal is incapable, the authority granted under the declaration will continue until he or she becomes capable of making decisions. (755 ILCS 43/10 (West 2000)).
Health Care Surrogate Act
The Health Care Surrogate Act (755 ILCS 40/1 et seq. (West 2000)) allows medical decisions to be made for an incapacitated person without an advanced directive. Initially drafted to allow only end-of-life decisions, the Act has been expanded to allow a surrogate to make medical decisions when the patient's life is not in the balance. After the attending physician and a concurring physician declare that the patient lacks decisional capacity by noting the incapacity in the patient's chart, the doctor looks to a statutory hierarchy of individuals set out in the Act to make decisions for the patient. (755 ILCS 40/25 (West 2000)).