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Practice News

Chief Justice Fitzgerald urges governor to restore cuts to probation services as matter of public safety

Posted on September 9, 2009 by Chris Bonjean
Chief Justice Thomas R. Fitzgerald of the Illinois Supreme Court has released the contents of a letter he wrote to Gov. Pat Quinn urging him to restore severe budget cuts to probation services, saying the current level of state funding is “dangerously inadequate.” The Chief Justice wrote the letter on September 1 to “respectfully request your restoration of funding to a level that allows probation to do its critical work for Illinois’ citizens and communities.” In the budget approved by the Governor, funds appropriated to the Supreme Court for community-based probation programs in 2010 totaled $36,485,500 – a 44 percent reduction from the 2009 allocation. The reduced 2010 allocation follows a 2005 budget cut of 13 percent for probation services, which despite repeated requests by the Supreme Court, has never been restored. “The practical effect of diminishing appropriations is that probation officers must be laid off, criminal offenders sentenced to probation receive inadequate or no supervision, and the public safety is thereby  severely compromised,” the Chief Justice wrote. The Chief Justice said he is aware that the state’s economic difficulties are more serious than any he has known in his 30 years of public service and is sensitive to the heavy burden the Governor bears in distributing limited fiscal resources. “I make this request only after careful deliberation and out of the most grave concerns for the public safety of Illinois’ citizens,” the Chief Justice wrote.

QTIP trust legislation signed

Posted on September 9, 2009 by James R. Covington
Governor Quinn signed the QTIP trust legislation into law yesterday to take effect immediately. It may be found at the General Assembly website under Senate Bill 2115 or Public Act 96-789. by clicking here. Public Act 96-789 creates QTIP trust legislation for an Illinois surviving spouse if the other spouse dies in 2009. It addresses the issues caused by the decoupling of federal and Illinois exemptions for estate taxes for 2009.

GINA prevents discrimination based on genetic information

Posted on September 8, 2009 by Mark S. Mathewson
Employers and insurers beware: effective November 21, a new federal statute with the acronym "GINA" forbids discrimination based on genetic information. Read Helen Gunnarsson's LawPulse item from the September IBJ, which describes the Genetic Information Nondiscrimination Act  and links to EEOC rules interpreting it.

Summary of new laws

Posted on September 8, 2009 by James R. Covington
The Legislative Research Unit has done an excellent job of summarizing most of the bills that have been sent to the Governor. It may be found at LRU's website at this link. Click on "First Reading," and then click on the August 2009 issue, vol. 23, No.1. You may have to go to the General Assembly webpage to see if the bill has been signed into law, by clicking here.

May Illinois lawyers list their "specialties" on LinkedIn?

Posted on September 3, 2009 by Mark S. Mathewson
May an Illinois lawyer list his or her "specialties" on LinkedIn without running afoul of Illinois RPC 7.4, which forbids use of the "s" word? The LinkedIn template includes a space for users to fill in their "Specialties," and Illinois lawyers in the LinkedIn network have been wondering. According to Helen Gunnarsson in the September IBJ, ARDC Chief Legal Counsel James Grogan says lawyers can remove the risk of an RPC 7.4 violation by "prefac[ing] their listing of practice areas with a statement drawing language from the rule, along the lines of 'The Supreme Court of Illinois does not recognize certifications of specialties in the practice of law, and I do not hold myself out as a specialist. However, I concentrate my practice in the following areas....'" Read about this and more in Helen's LawPulse item, Social media and legal ethics.

Add these clauses to your standard fee agreement

Posted on September 2, 2009 by Mark S. Mathewson
According to John Phipps in the latest General Practice, Solo and Small Firm newsletter, three clauses should be part of every fee agreement: 1) one addressing what happens when you're sick, on vacation or otherwise unavailable; 2) one specifying that you aren't guaranteeing results; and 3) one pointing out that you can't estimate costs you don't control (e.g., costs driven by the other party's behavior). Find out more, including the specific language John recommends.

Juvenile records and expungement

Posted on September 2, 2009 by James R. Covington
Public Act 96-707 (Haine, D-Alton; Turner, D-Chicago) provides for a hearing to be held when a juvenile with a first-offense misdemeanor turns 18 or upon completion of the sentence, whichever comes later. If local prosecutors do not file objections, expungement will be automatic. The limited objections that may be considered by a judge include the following: (1) if the arrest was for a homicide, an offense involving a deadly weapon, a sex offense, or aggravated domestic battery; (2) if the offense for which the minor was arrested is still under active investigation; or (3) if the minor is a potential witness in an upcoming court proceeding. Public Act 96-707 also prohibits the transfer of confidential juvenile arrest records from the State police to the Federal Bureau of Investigation to prevent the unnecessary release of confidential juvenile data. Effective January 1, 2010.

ISBA proposal would improve guardianship process

Posted on September 1, 2009 by Mark S. Mathewson

In the September issue of Child Law, Margaret C. Benson describes the shortcomings of current guardianship law and an ISBA legislative proposal designed to address them.

"Traditionally, minor guardianships were fairly simple cases, necessary when parents died or were temporarily unable to care for their children, " Benson writes. "Most cases were uncontested. The statute was designed to be 'easy in, easy out,' with a simplified process and fill-in-the-blank forms.

"About a decade ago, however, everything changed. Probate judges found themselves inundated with increasingly complex and bitter contested minor guardianship disputes, caused by a confluence of factors, including a significant shift in DCFS policy and a seismic cultural change.

The law as written is simply inadequate to the new reality, Benson writes. "In its current form, the Probate Act does not adequately protect the rights of parents or children. For instance, the statute does not contain any provisions for a parent to petition to terminate the guardianship. In addition it uses the undefined term 'fitness' to determine if a guardian should be appointed for a child. This leaves parties, attorneys and judges without guidelines to determine when a guardianship should be granted and when it should be terminated."

In response, Benson and other ISBA members have crafted a legislative proposal that would bring guardianship law up to date. Find out more about it.

New changes in partnership tax (96-45)

Posted on September 1, 2009 by James R. Covington
Currently, the Federal Government and most states do not tax income of partnerships, “S” corporations, and limited liability companies (LLCs) that elect to be treated as partnerships. Instead, the income is taxed after it flows through to individual partners or shareholders. Illinois has followed this practice for regular income tax purposes but does tax these entities with a “personal-property replacement-income tax.” Illinois has allowed “S” and “C” corporations to deduct compensation paid to owners, but partnerships are not allowed to do so. To treat partnerships in the same way as S and C corporations, Illinois has allowed partnerships to deduct a portion of their distributable income that represented reasonable compensation. Public Act 96-45 changes this tax policy effective for tax years ending Dec. 31, 2009 for the personal-property replacement-income tax. It limits partnerships’ deduction to “guaranteed payments” instead of “reasonable compensation.” The difficulty is guaranteed payments for federal purposes is limited to payments made regardless of the profitability of the partnership. This would generally limit the deduction to income partners because equity partners’ income is based on their share of distributable income of the partnership. Public Act 96-45 will affect personal-service partnerships such as law firms, accounting firms, private equity, and investment fund managers because almost all of the distributable income to the equity partners represents the personal services of the partners. Since these distributions cannot be categorized as guaranteed payments, the partnerships may have significant taxable income for Illinois replacement tax purposes.

New Illinois tax laws

Posted on August 31, 2009 by Mark S. Mathewson
David Eldridge's review of 2009 state and local tax-law changes -- property tax, income tax, sales tax, the whole shootin' match -- is in the latest issue of Tax Trends, newsletter of the ISBA's State and Local Tax Section.