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Illinois Bar Journal

An Ethics Roadmap for Referrals

Posted on January 17, 2018 by Mark S. Mathewson

As the January Illinois Bar Journal cover story makes clear, good referrals serve the interests of lawyers and clients alike. In her column in the January issue, ISBA assistant counsel Bailey Felts enumerates the key ethics rules you'll need to consult before heading down the referral road.

Indecent Exposure

Posted on January 10, 2018 by Mark S. Mathewson

When people think about the jobs of public defenders, they may think about the immense workloads that some PDs take on. They may think about the risks of defending a dangerous individual - and losing.

One workplace hazard that most of us probably don't realize is that some inmates in Cook County Jail have been exposing themselves to, and sometimes masturbating in front of, female public defenders and correctional officers. The problem has led to six female public defenders filing an equal protection lawsuit late last year in the U.S. District Court for the Northern District of Illinois. Female correctional officers filed a similar lawsuit.

Justice Never Sleeps - But What if the Judge Does?

Posted on January 3, 2018 by Mark S. Mathewson

Practicing law can be an exhausting profession. Long workdays make it difficult to maintain a good work-life balance. The daily stress of practicing can be tiring, too. Sometimes it's almost impossible to keep your eyes open in court.

When an attorney dozes off, it can be a problem. But what about the rare occasions when a judge falls asleep on the bench? The third district recently handled an appeal brought by convicted spree-killer Nicholas Sheley, centering on a judge who nodded off during the trial. People v. Sheley, 2017 IL App (3d) 140659.

The Sheley court held that a judge falling asleep during the proceedings does not constitute per se reversible error. The court reasoned that a judge falling asleep does not rise to the level of structural error - i.e., one that "renders a criminal trial fundamentally unfair or an unreliable means of determining guilt or innocence." Id. at ¶ 16.

Sheley was based on a criminal trial - the focus was on the defendant's rights first and the judge's conduct only as it relates to whether the defendant got a fair trial. But what should a lawyer or other observer do when a judge falls asleep on the bench? Find out in the January Illinois Bar Journal.

Referring with Style

Posted on December 21, 2017 by Mark S. Mathewson

As lawyers increasingly focus their practices, a given attorney often isn't the best choice to handle a given case. Yet clients typically don't know where to turn, which means lawyers and their firms end up deciding which cases to accept and which to refer, and - when they send cases out - how to handle that referral.

Once done on the down-low, referrals have become a more above-board part of legal practice, says Warren Lupel, former special counsel in the litigation and dispute resolution practice at Much Shelist in Chicago. "There's nothing wrong with it, and it's even desirable in most instances," says Lupel, who appeared with Daniel Breen of Chicago's Breen Goril Law during a CLE presentation at the ISBA's Solo and Small Firm Practice Institute in October. "If you are not that specialist, and you know a specialist, the client is going to get a better deal if you refer."

Whether and when to refer is a case-by-case judgment based on one's confidence level in handling a particular matter, Lupel says. "You don't have to be the best lawyer in the country or the county to keep the file," he says. "But if you're a real estate lawyer, and you get a medical malpractice case, that decision should be easy."

Other judgments are trickier, he says. "You may handle small personal injury cases, and this is a big one. Maybe you don't refer it."

Illinois a Hub of Biometric Privacy Lawsuits

Posted on December 13, 2017 by Mark S. Mathewson

Illinois has become a center of biometric privacy litigation. The Illinois Biometric Information Privacy Act is the only one in the nation that allows private parties to sue and has a fee-shifting provision allowing plaintiffs to recover attorney fees.

And biometric privacy lawsuits are in the news - there has been a spike in litigation against employers over fingerprints and other biometric data. Biometric data is a measurement or copy of a unique physical characteristic of an individual. It can be a fingerprint, retina or iris scan, voiceprints, hand scans, or facial geometry.

In March 2016, Google faced a class-action lawsuit alleging violations of the Illinois Biometric Information Privacy Act (see "Class action suit alleges Google is violating Illinoisans' 'biometric' privacy," May 2016 LawPulse, at http://bit.ly/2zE4FRQ). As of November 11, 2017, the case is still in the discovery phase.

Most new lawsuits in Illinois are based on employers and retail businesses that allegedly fail to obtain written authorization before collecting fingerprint scans ("Spike in IL lawsuits vs employers over fingerprints, other biometric data may be just the beginning," Cook County Record, at http://bit.ly/2jqsTc0).

Find out more in the December Illinois Bar Journal.

Veto Session Wrap-Up

Posted on December 5, 2017 by Mark S. Mathewson

In a veto session conducted under the shadow of sexual harassment allegations by female lobbyists and others, the Illinois General Assembly overrode Governor Rauner's vetoes of many bills. Among the new laws:

Illinois Student Loan Servicing Rights Act. Legislators overrode the veto of Senate Bill 1351, which was championed by Attorney General Lisa Madigan. Also known as the Illinois Student Loan Servicing Rights Act, the Act introduces licensing requirements for servicing student loans in Illinois.

It also establishes a "Student Loan Bill of Rights," which prohibits certain servicing practices, imposing various requirements upon student loan servicers. The Act allows the Attorney General to enforce violations under the Consumer Fraud and Deceptive Business Practices Act.

Criminal justice reform. The General Assembly made more strides towards criminal justice reform during the veto session. In particular, HB 184 has been amended to reduce some burdens placed on parolees and to give courts more latitude in determining sentencing.

Unclaimed Life Insurance Benefit Act. The legislature overrode Governor Rauner's amendatory veto of SB 302, which amends the Unclaimed Life Insurance Benefit Act. The bill expanded the Act's scope to include lapsed and terminated life insurance policies. It also requires insurers to compare policies, annuity contracts, and retained asset files to the full Death Master File to determine whether there are unclaimed benefits.

Find out more in the December Illinois Bar Journal.

Illinois Law 2017: The Year in Review

Posted on November 29, 2017 by Mark S. Mathewson

The preparation 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.

For example, 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.

Also, the interdisciplinary model of conflict resolution known as collaborative law will be formally codified here through the Illinois Collaborative Process Act, which takes effect January 1. 

And the Illinois 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.

Find out more about these and other 2017 developments in the December Illinois Bar Journal.

New Family-Law Act Eases Name Changing, Revises Maintenance Calculation

Posted on November 1, 2017 by Mark S. Mathewson

On September 22, 2017, HB 2537 became Public Act 100-0520. It makes changes to the Code of Civil Procedure and the Illinois Marriage and Dissolution of Marriage Act (IMDMA), which has been the subject of a major overhaul in the past few years. The law takes effect June 1, 2018.

One major change during the Act's first overhaul was to make it gender-neutral to better include same-sex marriages within the language of the statute. Some portions of the new law seem geared towards cleaning up remaining language that wasn't gender neutral. It also streamlines the process for name changes, rewrites the calculation for the duration of spousal maintenance, and raises the combined income ceiling for couples to whom the maintenance guidelines apply from $250,000 to $500,000.

Perhaps the biggest change in the new law appears in 750 ILCS 5/504, which involves the calculation of spousal maintenance and its duration. It also increases the gross-income ceiling for cases to which the guidelines apply from $250,000 per year to $500,000 per year.

Under the current math, the duration of maintenance is calculated based on five-year chunks of time. For instance, a marriage that lasted five years or less receives different treatment than one that lasted more than five but less than 10 years. Under the new law, calculating the duration of maintenance takes a more granular approach that seems more logical. For instance, it seems arbitrary that a one-day difference in filing for divorce can result in a doubling of the modifier used to determine how long a spouse will receive maintenance.

Find out more about P.A. 100-0520 in the November Illinois Bar Journal

Which E-Filing Service Provider Is Right for You?

Posted on October 25, 2017 by Mark S. Mathewson

Mandatory e-filing goes into effect across Illinois on January 1 (you knew that, right?), and one task that belongs at the top of every law firm's to-do list is choosing from among the "electronic filing service providers" who are the pathways to the e-filing system. No service provider, no e-filing. It is not a DIY project.

The service providers, also known as EFSPs, offer a myriad of features that lawyers will need to compare and contrast in making their decision: prices and payment options, support features like call center hours and web browsers served, and additional services like document conversion, extended document storage, detailed or simpler reporting, and proof of service to other parties.

By mid-September, the vast majority of those in Illinois who had signed up, about 93 percent, had chosen Odyssey eFileIL, a free service provided by Tyler Technologies, the vendor hired by the Illinois courts to implement e-filing statewide.That sign-up pattern is typical of other states in which Tyler Technologies has worked, at least at the outset, says Terry Derrick, senior director of e-solutions for the Texas-based company. He notes that in Texas, where Tyler has provided services for a few years, 79 percent of filers currently use Odyssey.

"The majority of the filing community will start with a free solution to see if that will meet their needs," he says. "If it doesn't…they will venture out and look at value-added services offered by the other EFSPs."

5 Estate Planning Steps for Divorcing Clients

Posted on October 11, 2017 by Mark S. Mathewson

Divorcing clients have a range of estate planning needs, but some issues arise for nearly everyone whose marriage is ending, notes Chicago lawyer and ISBA member Lauren Evans DeJong. So be prepared to counsel your divorcing client about the following five estate-planning tasks.

Changing beneficiary designations. These include removing the soon-to-be ex as beneficiary "of [the client's] life insurance policies, individual retirement accounts, land trusts, and annuities," DeJong writes. Also review "transfer on death or payable on death bank or brokerage accounts, land conveyed by transfer on death deeds, and employee benefits."

Controlling access to online accounts. The Revised Uniform Fiduciary Access to Digital Assets Act, 755 ILCS 70/1 et seq., which took effect last year, "provides a priority system for individuals to specifically control disclosure of digital assets and content of electronic communications" on social media, email, and the like.

"Many clients will not want their…ex to have access to their e-mails, Facebook or Instagram accounts, financial or banking information, diaries, or other personal information," DeJong writes.

"Individuals can use online tools established by providers [e.g., Google's Inactive Account Manager and Facebook's Legacy Contact] to direct disclosure of digital assets," she writes. "[A]n online tool…takes precedence over any other method of directing disclosure." Another option is to draft a statement directing disclosure, which can be included in a client's will, trust, or POA.

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