Illinois Bar Journal

The Magazine of Illinois Lawyers

December 2017Volume 105Number 12Page 20

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December 2017 Illinois Bar Journal Cover Image

Year in Review

Illinois Law 2017: The Year in Review

By
Ed Finkel

The year saw the advent of mandatory electronic filing, major federal and state Supreme Court cases, a new method for calculating child support, the release of the ISBA "futures report," and other noteworthy developments. Here's a look back.

The preparations for "E-Day" - January 1, 2018, the first day civil circuit court cases across Illinois must be filed electronically - was arguably the most momentous development for the Illinois legal system in 2017, unless something bigger emerges in the final month.

But there were plenty of other significant stories, from the upcoming U.S. Supreme Court case arising out of Illinois that could have a major impact on labor law, to an Illinois Supreme Court case on the ability to tax charitable hospitals, to county lawsuits against pharmaceutical companies related to opioid abuse.

E-Day approaches

Electronic filing kicked in five months ago for Illinois Supreme Court and Appellate Court cases, on July 1, based on Supreme Court Order M.R. 18368 issued on Jan. 22, 2016. The state has been working with Texas-based Tyler Technologies to bring a centralized electronic filing management system to all 102 counties. (See the June and November IBJ cover stories for more.)

Tech-oriented attorneys like Trent Bush at Ward, Murray, Pace & Johnson in Sterling and Drew Hickey at Bolen, Robinson and Ellis in Decatur have encouraged attorneys across the state to start using the system before it becomes mandatory to ensure they will be ready. The system is bringing benefits such as 24-7 filing and time and cost savings from not having to drive to the courthouse and park. It will save the court system storage space and improve record preservation.

Attorneys and firms have several electronic filing service providers from which to choose, ranging from lower-feature free options to fee-based alternatives like monthly invoicing, 24-7 call centers, document conversion, extended storage, and proof-of-service.

In the early going, it appeared Illinois lawyers were following the pattern of their counterparts in other states by opting for the free Tyler Odyssey interface, although the other service providers could see an uptick as attorneys and firms figure out which additional features could be useful.

The supreme court's original order required the 87 circuits that did not have e-filing to join the statewide system; on May 30, the court amended its order to extend that requirement to the 15 circuits with existing e-filing programs. The original order had said they would be required at some point but did not establish a date certain. Now that date is July 1, 2018.

Although the systems in place have been working well in their individual jurisdictions, they have required attorneys with geographically wide-ranging practices to learn multiple platforms, a particular challenge for those in the Chicago area who practice in both Cook County, which has its own system, and suburban counties, such as Lake, that do not.

U.S. Supreme Court takes Illinois union case

An Illinois appellate case became the seed for one of the U.S. Supreme Court's blockbuster cases for the 2017-18 term, one that could dramatically alter the prospects of public sector union organizing in the United States going forward.

The case, Janus v. American Federation of State, County, & Municipal Employees, Council 31, concerns whether government employees who work in unionized offices but choose not to join their union should be required - as they are currently - to pay the portion of union dues that go toward negotiating contracts.

AFSCME argues that since unions are required to negotiate on behalf of all employees whether or not they are in the union, all employees should be required to support that effort. The union points out that the U.S. Supreme Court precedent the plaintiff is seeking to overturn, Abood v. Detroit Board of Education, 431 U.S. 209 (1977), was decided unanimously (including concurring opinions) on this basis, while declaring that non-union workers could not be compelled to fund unions' political activities.

The plaintiff, Mark Janus, a child support specialist with the state Department of Healthcare and Family Services in Springfield, argues that being required to pay any portion of union dues violates the First Amendment right of free association, according to the conservative nonprofit group Illinois Policy.

Illinois Supreme Court remands hospital tax case

The Illinois Supreme Court declined to rule on the constitutionality of a state statute, 35 ILCS 200/15-86, that grants hospitals a property tax exemption if the value of their charitable services meets or exceeds their estimated property tax liability. Taxing bodies have long viewed this exemption as an unfair windfall to wealthy hospitals.

Instead, the court rejected a case challenging the law, Carle Foundation v. Cunningham Township, 2017 IL 120427 (Carle II), on procedural grounds, finding that the Illinois Appellate Court, Fourth District, which had struck down the statute in Carle Foundation v. Cunningham Township 2016 IL App (4th) 140795 (Carle I) after finding it to be in violation of Article IX, Section 6 of the 1970 Illinois Constitution, did not have jurisdiction to hear the appeal.

The court made that determination based on Illinois Supreme Court Rule 304(a), which provides that judgments disposing of separate, unrelated claims are immediately appealable, while those disposing only of separate issues related to the same claim are not - and the supreme court found the latter to be the case in the original circuit court ruling.

Therefore, the high court remanded the case to the circuit court, and as of July the parties were disagreeing on how to proceed.

Meantime, the Appellate Court, First District found that the statute does pass constitutional muster in Oswald v. Hamer, 2016 IL App (1st) 152691. The Illinois Supreme Court granted the plaintiff's petition for leave to appeal in Oswald on September 27.

W. Eugene Basanta, Southern Illinois Healthcare Professor of Law Emeritus, told the Illinois Bar Journal that he believes it "highly unlikely" that the legislature will tweak the statute before the supreme court resolves the issue.

ARDC implements self-assessment rule

Starting in 2018, Illinois attorneys and firms that do not carry malpractice insurance will be required to complete a four-hour, interactive, online assessments of their firms' ethics and business practices under Illinois Supreme Court Rule 756(e), as amended in January 2017.

This proactive management based regulation (PMBR) will be required every two years for the 41 percent of solo practitioners and 9 percent of small firms that do not carry malpractice insurance, according to James Grogan, deputy administrator and chief counsel of the Attorney Registration and Disciplinary Commission. (See the June 2016 cover story for more about PMBR.)

Younger attorneys with higher debt loads and thinner dockets are both less likely to carry insurance and more likely to take on work beyond their expertise for financial reasons, while solos lack the guardrails that big firms have in place to prevent malpractice, regulators believe. Illinois will become the first jurisdiction in the country to require PMBR.

The interactive assessments are free, can be done in shorter increments, and will provide four hours of CLE credit to those who take them. The ARDC plans a user-friendly program that will change content every two years and will not be designed to sell insurance; instead, it will provide checklists and other assessment tools to help attorneys analyze their practices as an insurance company would, by assessing risk and identifying areas for improvement.

Collaborative practice codified

It's been used for nearly three decades in more than two dozen countries and every state in the U.S. But starting January 1, 2018, the interdisciplinary model of conflict resolution known as collaborative law will be formally codified here through the Illinois Collaborative Process Act. (See Sandra Crawford's article in the September IBJ.)

Used most often in family law but also useful in resolving small business, probate, and other cases, collaborative law - a/k/a collaborative practice or collaborative process - hinges on a written agreement among both parties to a case, their attorneys, and any other professionals, such as mental health or financial experts, to solve their disagreements without resorting to litigation or involving a third-party mediator.

Collaborative practice requires that all parties have informed consent, attorneys and other professionals commit to withdrawing if either party threatens or pursues litigation, all information needed to resolve the conflict is shared voluntarily and honestly, and everyone has a commitment to resolve the conflict in a manner acceptable to all stakeholders.

In the absence of a neutral third party, attorneys themselves act as negotiators and drafters in addition to advocates and legal advisers. The International Academy of Collaborative Professionals' advocacy helped lead to the creation of the Uniform Collaborative Law Act (UCLA), versions of which have passed in more than a dozen states.

While the Illinois law does not precisely mirror the UCLA, it contains many of the same provisions, and others - including a rule that helps ensure informed consent of clients - are under consideration to be adopted under the Illinois Supreme Court Rules of Professional Conduct.

New child support calculation takes effect

The Illinois state legislature took a step aimed at ensuring that the formula to determine child support payments is fair and equitable when it passed Public Act 99-764, an amendment to the Illinois Marriage and Dissolution of Marriage Act. (See the article on income shares in the December 2016 IBJ.)

Until July 1, the state had used a percentage guideline formula that calculated the payor's obligation by simply multiplying that party's net income against a statutorily set percentage that increased based on the number of children in the house. Some in the field came to view this model as outdated and not reflective of actual child-rearing costs.

The new "income shares" model, which is used in 39 other states and the District of Columbia, adds information about actual child-rearing costs, based in part on data from the Bureau of Labor Statistics. The computation accounts for net monthly income of both parents and bases the percentage of each party's contribution on their percentage of the total.

The parent with the majority of the parenting time receives the calculated payment from the other, unless both parties have at least 146 parenting overnights per year. In that case, a shared parenting adjustment kicks in, tweaking the payment amount based on the percentage of parenting time.

ISBA ethics opinion endorses cloud storage

In an age where practice management solutions, file storage and sharing, and even entire "virtual" law offices can exist in the online "cloud," the ISBA issued an ethics opinion (ISBA Professional Conduct Advisory Opinion No. 16-06) affirming that it is ethical to store client information in the cloud so long as specific steps are taken. (See LawPulse in the January issue.)

The opinion builds on an earlier declaration from 2009 (Opinion No. 10-01) that gave lawyers the go-ahead to use third-party vendors to administer their servers, whether on-site or remotely. Opinion 16-06 points out that while lawyers may use cloud computing services, Illinois Rule of Professional Conduct 1.1 mandates that attorneys stay abreast of modern security standards - and be conscious of whether their cloud provider uses them.

The opinion also notes that Illinois Rule 1.6(e) says attorneys must undertake "reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to" confidential information. As long as they acted reasonably or competently to protect the data, an attorney would not necessarily be found to have acted unethically in the event a hacker or other rogue third party accessed the confidential information.

Larger cloud providers often publish details of their security programs, and while they probably won't negotiate the details, they might be more reliable than smaller companies, to whom lawyers should pose questions about security certificates, risk management programs, and adherence to industry standards, according to Aaron Brooks of HolstromKennedy, PC.

Downstate counties sue Big Pharma

High-profile litigation that unfolded during 2017 focused on the question of whether pharmaceutical companies should be held liable for the costs counties incur in treating addiction to those companies' legally dispensed medications that contain opioids.

State's Attorney Brendan Kelly of St. Clair County believes they should. (See LawPulse in the June IBJ.) Last April, he filed a complaint on behalf of the county and the State of Illinois against Abbott Labs and Connecticut-based Purdue Pharma for deceptive marketing practices under the Illinois Consumer Fraud and Deceptive Business Practices Act and the Uniform Deceptive Trade Practices Act. Prosecutors in at least two other Illinois counties (Jersey and Kankakee) have brought similar suits.

The St. Clair County suit alleges that opioid use there and across the country has spiked at least partly because of the defendants misleading prescribing physicians and their patients about the addictive nature of drugs like OxyContin, which were marketed for long-term pain management with minimal side effects. St. Clair County saw 27 times the national average of oxycodone dosage unit distribution in 2014, according to the Drug Enforcement Administration.

"A pharmaceutical manufacturer should never place its desire for profits above the health and well-being of its customers," the complaint reads. "Drug manufacturers have a legal duty to ensure their products are accompanied by full and accurate instructions and warnings to guide prescribing doctors and other healthcare providers in making treatment decisions."

The City of Chicago filed a similar lawsuit against Abbott, Purdue, and other drug manufacturers in 2014, Illinois Attorney General Lisa Madigan did so against other pharmaceutical companies in 2016, and cities and counties in Kentucky, West Virginia, Washington, and other states have done the same.

ISBA futures report released

The future of legal services in Illinois in 2018 and beyond was the subject of an ISBA report that painted a picture of stagnant or falling incomes, especially for those with consumer-oriented practices, along with a reluctance among consumers to retain counsel. (See the January IBJ cover story.)

The report also touched on online providers reshaping legal services delivery and the need for law students to be schooled in marketing and other non-legal concepts. "The report was designed to take a look at the broad range of threats and opportunities facing the profession and provide a broad summary, and help people put their concerns into context," said Mark Marquardt, executive director of the Lawyers Trust Fund of Illinois, a member of the ISBA task force that produced the report.

Initially inspired by the advent of limited license legal technicians (LLLTs) in Washington state, the task force and resulting report produced a variety of proposals adopted by the ISBA Assembly. They included ways to capture the "latent" market of those reluctant to use legal services, promote lawyers' value more assiduously, encourage attorneys to make greater use of technology, support higher levels of efficiency in the judiciary, and ensure the public is protected via regulation against online services that cross the line into practicing law without a license.

"I've been a lawyer for 40-some years. We're not used to change at this pace," Mary Robinson of Robinson Law Group LLC, told the Illinois Bar Journal. "It's hard not to just have it overwhelm you. We decided to take a moment, step back, and try to assess where we are in the midst of all this change."

"The report ends up being an extremely balanced look at embracing the future and trying to get people to see the opportunities and not just the threats," Marquardt told the IBJ.

Ed Finkel
Ed Finkel is an Evanston-based freelance writer.
edfinkel@earthlink.net