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  • June 25, 2012 | Practice News
    Liability Minute: Illinois Attorney General Providing Debt Settlement Services

    When elephants fight, the grass trembles.
    — African Folk Saying

    For the past several years, Illinois Attorney General ("IAG"), Lisa Madigan, and the State of Illinois have conducted a campaign against companies that purport to assist distressed homeowners and debtors in dealing with their debt situation.1 The primary weapons in the IAG's arsenal are two statutes: the Mortgage Rescue Fraud Act, 765 ILCS 940/1 et seq. (eff. Jan. 1, 2007) ("MRFA"); and, the Debt Settlement Consumer Protection Act, 225 ILCS 429/1 et seq. (eff. Aug. 3, 2010) ("DSCPA").

    Caught In The Cross-Fire Lawyers Run Afoul of The Illinois Attorney General Providing Debt Settlement Services

    By Joseph R. Marconi 2

    These statutes aim to address the allegation that many of these companies do not provide actual relief to debtors but rather worsen their situation through undeserved and excessive fees (while making fraudulent or misleading claims in the process). Among other restrictions and requirements, the statutes limit fees, including the taking of "up front" fees. See, 765 ILCS 940/50(1); 225 ILCS 429/125(a) and (b).3 The IAG's office is aggressively pursuing actions based on two laws.

  • June 21, 2012 | Practice News
    Quick takes on Thursday's Illinois Supreme Court opinions

    Our panel of leading appellate attorneys review Thursday's Illinois Supreme Court opinions in the Civil case Harris v. Thompson and the Criminal case People v. Hollins.

    CIVIL

    Harris v. Thompson

    By Alyssa M. Reiter, Williams Montgomery & John Ltd.

    The interplay between the Illinois Vehicle Code and the Local Governmental and Governmental Employees Tort Immunity Act (“Tort Immunity Act”) divided the Court in Harris v. Thompson.

    The plaintiff was injured in an automobile accident with a Massac County ambulance. He sued the County defendants for negligence. The defendants moved to dismiss and, following an adverse jury verdict, moved for judgment non obstante veredicto, asserting that they were immune from liability based on negligence pursuant to the Tort Immunity Act. That Act provides that a public employee acting within the scope of his employment is not liable for an injury caused by the negligent operation of a motor vehicle when responding to an emergency call. The trial court denied the motions and the Appellate Court (Fifth District) affirmed. Those courts found that the Illinois Vehicle Code, which imposes a duty to refrain from negligence, is the more specific statute and supersedes the Tort Immunity Act.   

  • June 21, 2012 | Practice News
    Hearing on solitary confinement

    Yesterday a hearing was held in Washington, D.C. on the issue of solitary confinement in state and federal prisons by the United State's Senate's Committee on the Judiciary (Subcommittee on the Constitution, Civil Rights, and Human Rights).

    A video of that hearing may be accessed here.

    1 comment (Most recent June 21, 2012)
  • June 21, 2012 | Practice News
    ISBA Statehouse Review for the week of June 21

    ISBA Director of Legislative Affairs Jim Covington reviews bills in Springfield of interest to ISBA members. This week he covers Domestic violence form, Cell phones and driving, Personal property exemptions and the Open Meetings Act. More information on each bill is available below the video.

    Domestic violence form. House Bill 5922 (Cunningham, D-Chicago; Kotowski, D-Park Ridge) allows a statutory short-form notification to be used to serve on respondents in the Illinois Domestic Violence Act of 1986, the Stalking No Contact Order Act, and the Civil No Contact Order Act.

    Passed both chambers; effective January 1, 2013.

    Cell phones and driving. Senate Bill 2488 (Garrett, D-Lake Forest; May, D-Highland Park) allows a driver in a construction or school zone to use a cell phone in voice-operated (instead of “voice-activated”) mode or by pressing a single button to initiate or terminate a voice communication. This also includes using a headset in this manner.

    Drop date August 5, 2012; effective January 1, 2013.

    House Bill 5099 (Costello, D-Sparta; Haine, D-Alton) prohibits a driver from using a cell phone or video within 500 feet of an emergency scene. Exempts using a cell phone in the voice-operated mode.

  • June 20, 2012 | ISBA News | Practice News
    ISBA submits resolution regarding ABA's Ethics 20/20

    The Illinois State Bar Association, in partnership with the American Bar Association’s Senior Lawyers Division, has filed a resolution for action by the ABA’s House of Delegates at the upcoming ABA Annual Meeting in August.

    The resolution reaffirms the ABA policy – adopted in 2000 – that law firms shall not be owned by non-lawyers and legal fees shall not be shared with non-lawyers. Proposals that would change this policy have been circulated in connection with the work of the ABA’s Commission on Ethics 20/20.

    President John E. Thies briefed the ISBA Assembly on the proposed changes, and the need for the ISBA’s action. “Ethics 20/20 has been tasked with looking at the impact of technology and globalization on the legal profession – these are not bad subjects to consider. However, this inquiry is being used directly or indirectly as a means of advancing proposals which seek to do some of the very same things which were defeated during the battle over Multi-Disciplinary Practice,” Thies said. 

    A number of states have already indicated their support for the ISBA/Senior Lawyers Division resolution, including Arizona, Indiana, Maryland, Mississippi, North Carolina, and Tennessee. Thies added: “this is about defending the core values of our profession against the encroachment of non-lawyers – to the detriment of clients. It’s gratifying that so many other states are lining up behind us, and I expect this to continue as we approach the ABA meeting in August.”

  • June 20, 2012 | Practice News
    Legal Tech in the Blogosphere - How Tech Savvy do Judges and Lawyers Need to Be?

    The recent copyright infringement trial between Google and Oracle brought a surprising series of posts by technical bloggers praising Judge Alsip, who presided over the trial, for showing such mastery of the technology.  Glyn Moody posted on Tech Dirt, Should People Learn To Code? Yes – If They Are Judges Ruling On Cases Involving Software.  Similarly, Jeff Neubauer concluded in the New Media and Technology Blog, Oracle v. Google Judge Writes the Book on Software Programming Copyright – For Now, Anyway.  Closer to home, Judge Posner, in the Seventh Circuit Appellate Court won critical praise for his  understanding of the dysfunctional copyright litigation system in the litigation between Apple and Motorola from technical blogs such as Mike Masnick’s article in Tech Dirt, Judge Posner Dumps Ridiculous Patent Fight Between Apple & Motorola As Contrary To The Public Interest.  By contrast, the recent New York Court of Appeals decision in People v.

    1 comment (Most recent June 21, 2012)
  • June 20, 2012 | Practice News
    Best Practice: Law Firm Dissolution

    Asked and Answered

    By John W. Olmstead, MBA, Ph.D, CMC

    Q. Our firm has recently gone through a series of partner defections - we were a 40 attorney firm - now we are 10. In our last partnership meeting we had some discussions about the possibility of dissolving the firm. If this comes to pass - do you have any tips or suggestions regarding winding down the firm?

    A. Winding down a firm is like starting a firm but in reverse, harder, and has more steps. Sort of like building a house and then later tearing it down. You will have to deal with:

    1. Clients (notification, termination of representation, and disposition of case files)
    2. Retired partners
    3. Current partners
    4. Employees (associates and staff) - job placement, severance, etc.

    Unlike other businesses - the major asset of a law firm are its clients, employees, and partners - many of which may have already defected or walked out the door. You may be left with only the liabilities.

    One of your priorities will be to decide who will manage the winddown and who will manage internal and external communications. Then you will need to develop a project management plan and dissolution/winddown plan/checklist. Major priorities will include:

    1. Bank Loans
    2. Building Lease
    3. Retainer Obligations to Clients
    4. Equipment Leases
    5. Retirement and Other Payouts to Former Partners

    Firm should consider if it will retain a caretaker or trustee to manage the winddown.

    You should make sure that you review the ethical requirements with your state bar association concerning:

  • June 15, 2012 | Practice News | ISBA News
    Adult Guardianship programs available for online viewing

    "Need an Adult Guardianship for Someone Close?" and "Seeking an Adult Guardianship: What's Next?" aired on the Illinois Law cable program in June and July. These programs were moderated by the Hon. Cheryl Cesario and featured Margaret Benson, Nancy Spain and Gregg Garofalo. "Seeking an Adult Guardianship: What's Next?" begins at 26:23 in the video.

  • June 14, 2012 | Practice News
    ISBA Statehouse Review for the week of June 13

    ISBA Director of Legislative Affairs Jim Covington reviews bills in Springfield of interest to ISBA members. This week he covers House Bill 5221 (Child-support enforcement), House Bill 4665 (Residential construction and radon), House Bill 5314 (Security deposit and email), Senate Bill 1691 (Business law cleanup) and HJRCA 49 (Constitutional amendment for pension increase).  More information on each bill is available below the video.

  • June 14, 2012 | Practice News
    Best Practice: Challenges of implementing a small firm merger

    Asked and Answered

    By John W. Olmstead, MBA, Ph.D, CMC

    Q. Three years ago our firm merged. The merger involved three solo attorneys and their staff merging into one firm. Now the firm consists of three partners and six staff members - a firm of nine people. While the firm is doing well financially and we are on a growth track we are having issues involving conflict among the partners and staff. In some ways we are still operating as three law firms. Staff are not working well together and they refer to old firm and new firm. They are resistant to change and they have created personal fiefdoms. We merged to create one firm - not three - but we fear that we are still functioning as three law firms. Do you have any suggestions?