The Intermediary Program – A 40-year uncompleted project of the Illinois State Bar Association
I have been affiliated with the Bench & Bar Section Council of the ISBA since 1975 when it was then designated as the Judicial Administration Section Council. I was appointed to serve as an assistant editor of the section council newsletter by former Judge Eugene Wachowski and Justice Glenn T. Johnson, the outgoing and incoming chairs of the section council, to serve with now retired Judge Dennis Dohm, the long-time newsletter editor for the section council’s newsletter. I later served as a co-editor with Judge Dohm until becoming chair of the section council when Judge Dohm and I gave up the responsibilities of editing and I had the opportunity to select Judge Al Swanson (ret.) to replace us. Judge Swanson also became another long-serving editor.
I continued to serve on the section council with only one year off the roster until the present time. It has, therefore, been my privilege over the past 43 years to be working with the best and brightest lawyers and judges from all parts of our state on this section council. I have seen many of the younger lawyers move up in the ranks becoming prominent in their practices and had the opportunity to work with many leaders of our profession including several supreme court justices, including the present chief justice. In fact, the present chief justice, Lloyd Karmeier, succeeded me as chair of the Bench & Bar Section Council a number of years ago when he was on the appellate court. He continues to serve as an active member of the section council. All of the many members have worked hard to better the administration of justice in Illinois to insure fairness, open access, and civility.
In the 1975-76 bar year, the section council received reports out of Champaign County of a useful informal intermediary/ombudsman program implemented by one highly regarded and conscientious man, William Brinkman, who served the legal community there as a confidential facilitator to convey non-ethical concerns by lawyers to judges to better ease the administration of justice allowing judges to know when their actions brought discomfort or disrupted rather than aided the administration of justice and civility.
Matters were conveyed by Brinkman without attribution to the source in an effort to preclude unintended acts, such as creating bias for the reporting lawyer. He entertained complaints about various items and topics including possible sexist, racist, or ethnic remarks and he tried to better prompt more respect for all. His messages from lawyers were designed to encourage prompt decision-making and dealt with other concerns as well. The communications through Brinkman were not focused on ethical matters covered by the ARDC or the Judicial Inquiry Board, but dealt with other issues in a way that judges could learn of the lawyers’ concerns without having ex parte communications in the process. A judge hearing the message of concern could take corrective action or ignore the message. The skills of the intermediary encouraged the recipient of the information to listen attentively and take the message to heart, and alter his or her conduct. The program was successful and after awhile there were fewer needs for intervention since the messages were respected and annoying conduct was rarely repeated.
The Bench & Bar Section Council concluded that a variation of the program ongoing in Champaign would be useful in all other counties and circuits and that it might be useful if the messages could be two-directional allowing lawyers to continue to convey messages of concern on non ethical issues not dealing with the merits of cases to judges, but also to allow judges to convey similar matters to lawyers in a non-confrontational manner and, where possible, without attribution to any particular judge. Later consensus by members of the Bench Bar Section Council brought thoughts of expanding any programs in the state to address lack of civility involving lawyer-to-lawyer interactions as well.
The Bench & Bar Section Council urged members—lawyers and judges—to initiate programs in their own local courts with the involvement of local bar associations. It was recognized that for lawyers to participate in any such program, certain safeguards had to be installed. An intermediary had to be protected by law or court rules to insure confidentiality and provide protection for liability with indemnification. Over the years, many steps were taken by the courts and the ISBA. The supreme court rule protecting interveners in the Lawyer Assistance Program (LAP) was expanded to protect any such intermediary in a court approved program. During the May 2006 term of the supreme court, Rule 1.6(e) of the Rules of Professional Conduct was amended to provide confidentiality protection for those in intermediary programs in response to the request of our section council’s leadership.
Until this last year, the leadership of the ISBA, especially under President Robert Downs, made it the policy of the ISBA to support these intermediary programs and attempt expansion. Also, the ADR Section Council joined Bench & Bar in its efforts since advocacy for resolution of conflicts in a peaceful manner is always at the forefront of their activities.
At the urging of our section council, several circuit courts around the state issued general orders and rules to initiate intermediary programs. Some of the largest counties—Lake, (19thth Judicial Circuit), Du Page (18thth Judicial Circuit), and Winnebago (17thth Judicial Circuit)—as well as some of the smallest put these programs in place with prompt action accompanying Champaign County, including the 4th Judicial Circuit and others.
When the Bench & Bar Section Council recognized that a statewide court intermediary program implemented on a circuit administered basis for all counties and circuits in the state was not possible, the section council approached the Illinois Supreme Court Commission on Professionalism. Though overwhelmingly supportive of the program and its purpose, the Commission at that time did not have the resources to take it on itself. So the section council decided that the most logical home for administering the intermediary program would be the only statewide bar association in Illinois—the ISBA.
After years of further refinement, when the intermediary program was presented to the ISBA Board of Governors, some members objected to having the ISBA act as administrator. Some feared there would be excessive costs for such a program, ignoring the arguments made that volunteers from the Bench & Bar Section Council would be giving of their time without expense to the ISBA. Opponents also objected that the program would benefit non-member judges and lawyers, not seeing that the beneficial results would make practice better for all lawyers, most of whom are ISBA members. To the contrary, this program would benefit the administration of justice for our citizens. What is the function of the ISBA if not to ensure the fair and efficient administration of justice in the courts with civility and respect for all. The program also had the potential of recruiting more members. At present, any desired action to implement a statewide program under the sponsorship of the ISBA is at a standstill.
Attitudes must change before the inertia will abate, or new leadership must emerge in the bar association and in the court. Having previously served on the Judical Evaluations Committee of the ISBA in Cook County for several years, I observed how some judges were surprised by questions about some of the elements of their conduct and they were then rated unqualified or not recommended. If an intermediary program were in place with intermediaries periodically advising them of objectionable conduct on their part so that they could choose to make corrections, not only would the conduct of those errant judges be remediated, but some of those judges might have received approving recommendations from the ISBA rather than the not recommended blemish. Cook County accounts for about one half of the judges in our state court system who, consequently, have no access to any intermediary program.
Just like no one person has impeded or been the sole obstacle for this program’s full implementation, no one person is responsible for the creation or design of the intermediary program. Many people over the years have been driving forces to provide such a useful program. I consider all of the people listed below as partners in attempts to make the courts better for all. In addition to the first known intermediary, William Brinkman, many other advocates came forth for the intermediary program.
In addition to ISBA Past President Bob Downs, the board serving under him, and Chief Justice Lloyd Karmeier, the names of others in the section council or in various courts come to mind, including past chairs Willis Tribler, Michael B. Hyman, Judge James Karahalios, Paula Holderman, and Judge Jackqueline Cox; retired Lake County Judge Margaret Mullen; former chief judge in Rockford – Winnebago County 17th Circuit and now appellate court justice in the 2nd district, Kathryn E. Zenoff, and her colleague on that court from DuPage County, Justice Ann Jorgensen, a long-time active member and chair of the section council. Recognition is given as well to the current leadership of the section council chair, David Inlander, and vice chair, Judge Stephen Pacey. There are many other past chairs of the section council who were greatly supportive of the program and made their own splendid contributions.
Apologies are offered to many fine people for omitting their names, but recognizing they offered many constructive comments and took many useful actions to create an effective intermediary program. Also, thanks go to the scores, if not hundreds, of section council members who voted in support of the various reiterations of the program over the years. Likewise, thanks are given to the many members of the various local bar associations who served in varying ways to implement programs in their respective areas.
Active subcommittee members in recent years, giving voice to the program, were Jayne Reardon, who also serves on the Supreme Court Commission on Professionalism, and Judge Debra Walker, a leader of the Commission. The hardworking efforts of Supreme Court Justice Robert R. Thomas, the court’s liason to the Commision, were greatly appreciated as well. Over the years other justices on the Bench & Bar Section Council were supportive as well, including Justice Howard C. Ryan, Justice Thomas J. Moran, Justice James D. Heiple, and Justice Benjamin K.Miller.
Our former board liaisons, including Albert Durkin most recently, have articulated our position as well on our behalf to the Board. Lastly, thanks to another friend, Hon. Edward Schoenbaum, our current newsletter editor, who has supported the program as a member, officer, and chair.
The efforts of so many dedicated members of the local bar associations, the courts, and the ISBA should not be ignored by the current leadership of the ISBA. We can only hope the current members of the ISBA leadership will change their attitudes or we will have to work for the leadership to change. Inertia will persist until action takes place. We wish to reach the day when we can all celebrate that a great program is in place throughout the entire state.