Clifford’s Notes: The candidates and tort reform

By Robert A. Clifford
Clifford Law Offices

For the first time in history, the Illinois presidential primary will be held this month. As voters get ready to head to the polls Feb. 5, I researched the tort reform positions of some of the candidates at this early point in the race and report them here. For the most part, opinions on damage caps are split along party lines, with Democrats generally voting against arbitrary monetary caps.

It’s safe to say that Republican candidates stand shoulder-to-shoulder on the issue of tort reform. Analyzing any nuances in their position — such as former Sen. Fred Thompson’s mixed voting record promoting a hands-off federal government and stronger states’ rights — would be a pointless exercise. Instead, I will focus my column on the major Democrats in the race.

Sen. Barack Obama (D-Ill.) has told audiences of which I have been a part, that he ­favors protecting victims’ rights in court, yet, shortly after becoming a U.S. senator, he voted in favor of the Class Action “Unfairness” Act. That law, signed by President George W. Bush in 2005, limits victims’ rights in possible class-action lawsuits and requires many types of cases to be heard only in federal court, shutting out state court as a possible option. Furthermore, Obama’s vote in favor of caps on non-economic damages in medical malpractice cases while in the Illinois General Assembly also is troubling.

Sen. Hillary Clinton (D-N.Y.) has stated her alliance with trial lawyers and victims of malpractice, and her husband, the former president, was a stalwart in supporting the civil justice system.

But Clinton certainly is better known for pushing universal health care in this country, and voting in favor of the popular 2001 ­Patients’ Bill of Rights that, nonetheless, failed in Congress. However, versions of her failed universal health care plan in the early 1990s contained caps on damages in medical malpractice cases, and one must wonder what deals may be cut if national health care comes to the forefront after the November election.

It also should be noted that Clinton and Obama co-sponsored the National Medical Error Disclosure and Compensation Act of 2005, a bill that, in part, requires hospitals to disclose errors to patients and creates a national patient safety database. At the same time, the bill proposed to create a Department of Health and Human Services program that would seek early compensation for patients and offer liability protections in exchange for disclosure of errors and apologies, measures that are not necessarily in a patient’s best ­interest, given that the full extent of an injury may not be known for some time. And keeping doctors’ errors a secret works against the interests of future patients.

The person who has been the most consistent and up-front about his views on tort reform is Sen. Joseph Biden (D-Del.). Although his ­recent showing in Iowa caused him to drop out of the race, his experience and likeability make him a possible running mate on the Demo­cratic ticket. What is particularly surprising is that, despite the fact that Biden comes from a state that is known for its ­favorable corporate climate and serves as
the headquarters for many companies, he fully supports the civil justice system. Biden must be applauded for his adamant support of victims’ rights.

As a former trial attorney, former Sen. John Edwards (D-N.C.) is, perhaps, the most straight­forward in his approach on caps. Having ­represented victims of negligence, he has a great sensitivity to the issue, as well as an awareness of the need to be consistent in his approach to the problem of victims’ rights.

The issue of caps on damages is one that is of acute interest in this state in light of the fact that the Illinois Supreme Court will ­decide this matter for the third time. Cook County Circuit Court Judge Diane Joan Larsen ruled in November that the $500,000 cap for doctors and $1 million cap for ­hos­pitals on non-economic damages, such as pain and suffering, violates victims’ rights. Twice before, in 1997 and 1976, the Illinois Supreme Court has ruled such caps are ­unconstitutional.

As we approach the Illinois primary, the din of tax cuts, health care, oil, terrorism, and Iraq drown out any talk of tort reform. There is not a victims’ group that binds together those who have been hurt, or family members killed at the hands of malpractice or other negligence. It is left to their lawyers to try to see that laws are fair and the playing field is level.

Regardless of who becomes president in November, our government should not make it more difficult for people who have been injured to receive compensation from the
very person or entity that caused the harm.

It remains to be seen whether November’s election will bring more hardship for those injured by wrongdoers.

3L and the City: Stop and smell the roses

By Maria Vasos
Chicago-Kent College of Law

Okay, so it is February and there are really no flowers around to sniff, as everything in Chicago is still pretty much frozen over, but the deeper meaning is what I am trying to convey. (Unless you have a Valentine’s Day bouquet on hand, in which case, smell away.)

Over winter break I finally had the time to read for pleasure and came across my new ­favorite book, “The Undomestic Goddess,” by ­Sophie Kinsella. The book is about a 20-something lawyer-girl at a large firm in London who gets fired after a £50 million ($100 million) mistake.

Long story short: She has a nervous breakdown, hops on a train to the British countryside, and happens upon a job as a live-in housekeeper incognito, only to realize that she doesn’t have a clue how to cook, clean, or essentially do anything besides be a lawyer, because she has never had any time. Her previous life was devoid of any personal time, hobbies, a mate, friends, or even family to share it with her. So, like any good modern-day heroine story, as a maid she gets a new hairdo, a tan, a boyfriend, and a bunch of friends who treat her like family, all with ensuing hilarity.

I, of all people, am not advocating scrapping a very expensive, hard-earned law degree for a toilet brush, if at all avoidable, but I would like to put the ideas of moderation and prioritization out there to the Chicago Lawyer readers. I know that law school and the legal profession groom their participants into being competitive over-achievers. I too am one of the personality-less drones at times, especially during finals, all work and no play.

Law school’s lengthy reading assignments, detailed memos, and harsh grading curves all drive the highly pressured lifestyle. Even your peers add the proverbial fuel to the fire by ­validating your stresses and engaging in friendly competition. So, even when you do take a much-needed break, you start to feel guilty that you should be studying, or ­out­lining, or working on something productive. This is nonsense. Everyone needs a break now and then.

I, for one, think that yoga should be a ­required law school course in the curriculum, much like professional responsibility or senior seminar. Not only does it focus on mental clarity and stress relief, but also the bending and stretching is vital to circulate the blood and boost energy for people who spend most of their days hunched over a laptop or textbook. For those of you interested, my favorite yoga position to do to during breaks is ­”Warrior 1,” which is like a forward lunge with both of your arms stretched out toward the ceiling. I also always throw in a few head and neck rolls for good measure.

Reading this book really brought home the idea that being a lawyer is just your profession, it is not all that you are. You should reserve and take some personal time to allow yourself to decompress once in a while. (And, perhaps, read a book.) That great partnership, associate offer, or law review spot will be pointless, if, in the end, you are too wound up to enjoy it, or worse, have a breakdown that prevents you from keeping it.

And, just as you need to take time for ­yourself, you need to take time for your ­relationships too. Your mother (or yiayia) will not be around forever, you know, maybe you could give her a phone call now and again? Likewise, your significant other, although ­undoubtedly understanding of your hectic lifestyle, also needs some attention and tender, loving care on at least a periodic basis.

In looking for tips online, I found a good one that said, in order to make personal time and relationship time more feasible, you need to schedule them into your agenda just like other priorities (and not cancel them).

So for example, you should schedule ­family time, friend time, relaxing bath time, and ­anything else into your datebook, and treat them like mandatory obligations that cannot be put-off to an indefinite later date. That should prevent the common pitfalls like ­having other important things to do at the same time or having a month go by before ­realizing that you were supposed to have ­dinner with someone in particular, or worse yet, figuring out that it has been several years since your last vacation.

A few years ago, I had another inspirational casual reading experience when I came across a coffee mug. It said something to the effect of, many years from now it will not matter how much money you make today, but it will matter the relationships you garner and the effect you have on others. I don’t know how much the first part is true because, theoretically, if you win the lottery today, or a huge case windfall, it most likely would matter, at least to you, years down the road. However, the second part I know is true.

Think about this, nobody ever died wishing he or she spent more time in the office.

Pro Bono: Loop lawyers see them every day

By Margaret C. Benson
Chicago Volunteer Legal Services Foundation

In the morning, as office workers walk east from the Metra or west from the El and on the reverse commute after work, they see the men hawking “Streetwise,” rattling plastic cups, or silently standing with a hand out.

At lunch, people avert their eyes from the women, some of them holding babies, huddled on the ground outside office buildings and St. Peter’s Church. People, who live in the city, or near a suburban downtown, also see them on weekends. They are the homeless.

How can you use your legal skills to help people in this extreme condition?

The Chicago Coalition for the Homeless has an answer to these questions.

While the coalition’s Law Project litigates a variety of cases on behalf of homeless people, including employment discrimination and human rights work, 80 percent of their work involves representing homeless families and their children on educational access issues.

Coalition attorneys, with the assistance of pro bono counsel, fight to force schools to admit homeless pupils and to prevent school districts from expelling children for a variety of reasons, including not having a fixed ­address. Attorneys litigate to enforce federal laws that mandate equal treatment of homeless children in classrooms, ensure that homeless children have access to appropriate special education programs, and access to free transportation. Pro bono attorneys can help research the law, write legal memos, serve as co-counsel in court, and represent clients in administrative hearings.

The coalition also serves an important ­advocacy and policy role for the homeless population. Pro bono attorneys can work on significant class-action cases, help draft legislation and policies and, in some cases, lobby in Springfield or Washington.

For attorneys interested in helping the home­less face-to-face, the coalition arranges pro bono opportunities through Project HELP (Home­less Experience Legal ­Protection), where attorneys from large law firms provide free legal services to residents of two Chicago homeless shelters.

Participating law firms are responsible for providing attorneys to the shelters for one hour each Thursday afternoon for one month. In that hour, attorneys meet with clients, learn about their legal problems, advise them, and perform follow-up services as necessary.

A similar program, run by Chicago Volunteer Legal Services and available to any interested attorney, operates out of the West Suburban PADS shelter in Oak Park, one Thursday evening a month between October and May.

The legal issues attorneys experience in both programs are similar. Often, the most immediate is public benefits. Many homeless people may suffer from mental or physical disabilities that entitle them to social security disability (SSD), supplemental security income (SSI) or veterans benefits.

Unfortunately, the claims system established by the feds to get those benefits is not the most user-friendly. Although clients struggle mightily to navigate it, attorneys are able to gather the necessary evidence, assemble the required documentation, and convince the powers that be of the validity of these claims. Success brings a monthly stipend that allows a homeless person to secure stable housing and resume life off the streets.

Homeless people may also need help expunging criminal records that are hindering their ability to get work, negotiating with creditors, and modifying child support orders that continue to tick away despite the payor’s inability to pay. In some cases, attorneys can help individuals resolve problems created by a stolen identity.

Sometimes, all the clients need to know are their rights.

Do they have a case? Could the police officer, landlord, boss, guy in the store, do that? How can they protect themselves next time it ­happens?

One of the best things any attorney can do is to sit down face-to-face with a person who you normally walk past on the street and ­listen, converse, and advise. All too often, homeless people are ignored. When attorneys don’t ignore them, but give them time, attention and help, our profession is ennobled.

Sometimes “access to justice” seems like an unreachable goal. Justice is such a big, amorphous word. Access to an attorney, however, is a concept we can all wrap our brains around. Give legal help at a homeless shelter once in a while, or help a homeless student get free bus service to school, and you have achieved equal access to justice - all by yourself.

If you are interested in doing more than purchasing your weekly issue of “Streetwise” from the guy on the corner near your office, consider volunteering.

Contact Laurene ­Heybach at the Law ­Project of the Chicago Coalition for the Homeless, (312) 435-4548, or at lheybach@ yahoo.com. Contact Veronica ­Rodriguez at Chicago Volunteer Legal Services, (312) 332-1649, or at vrodriguez@cvls.org. They’ll put you to good work.

All in the Family: How to send your husband to jail

By Joseph N. DuCanto
Schiller, DuCanto and Fleck

Divorce brings out the best and the worst in us. While some people try to avoid anger and recriminations, others seek to punish not only the fickle ­partner but also all who support him or her.

A New York newspaper headline in a story datelined Nov. 16, 2007, shows how a ­destructive litigant may, in fact, ultimately see her husband jailed. “NYC Pastor’s wife sees church as asset in their divorce,” screams the headline, catching virtually any bored or overworked eyes.

The story details the wife’s claim that the pastor-husband treated the assets of the church as “a personal piggy bank,” giving examples of the use of church funds and ­assets for ­personal consumption.

Most divorce lawyers hear this common ­refrain from wives of husbands engaged in family-held companies, and the claims are often verifiable by an audit of business and personal records. Lawyers often find themselves in a quandary as to the right legal and ethical approach to these disclosures, which involve various shades of embezzlement, ­diversion or misuse of corporate funds, and tax evasion or fraud.

Acquaintance with IRS operations over 50 years has brought me many times into contact with “special agents” of the IRS, whose main function is to investigate possible fraud and evasion cases for ultimate referral and prosecution by the U.S. Attorney.

Not surprisingly, I am informed that public filings such as the New York case cited above initiate many criminal investigations.

Others are initiated by direct contact with an angry and vindictive wife who seeks to destroy her unfaithful ­husband for his temerity in leaving a loveless and often destructive relationship.

Quite obviously, the moving party in these matters has not thoroughly understood the net consequences or what destructive powers she has unleashed, destructive not only to the main actor, but to herself and the entire family as well.

Whether criminal prosecution and the ­infliction of jail time are added to customary civil collection efforts is really a nicely ­balanced issue, which depends upon a host of considerations not here relevant.

At a minimum, the IRS will launch a civil action to collect unpaid or evaded taxes, plus interest and penalties. This could result in a levy against all property owned by the taxpayer, allowing the IRS to take both marital and non-marital property.

Since married couples customarily file joint returns, the IRS claims, including interest and stiff penalties, will attach to all the property of the husband and wife. Despite her role as a whistleblower, the wife gains no legal or ­financial advantage and often has effectively destroyed her grounds for possible personal financial redemption by claiming she is an “innocent spouse.”

Legal counsel, when faced with an angry client bent upon the destruction and ruin of the other party, is placed in a dangerous dilemma and confronts ethical quicksand. It has to be taken as an article of faith that a spouse angry and self-destructive enough to publicly disclose all these damming materials is not the least bit interested in what can or might happen to the lawyer who seeks to ­assist and serve her.

In the first instance, the attorney must ­recognize that being rational and effective simply may not be accepted by such a client. Instead, a bit of sympathy for her position has to precede, but be accompanied by, an ­exposition of the civil and criminal action she may face if these charges are boldly made a public record.

Courtesy and consideration on both sides is mandated by the presence of an elephant in the conference room in the form of knowledge, which, if made public, would destroy the interests of both parties.

While the attorney wants to prevent his or her client from making a serious mistake for which she may well suffer grievous consequences, there is nonetheless intertwined in your advice the nagging issue of professional culpability.

Am I ethically exposed somehow by seeking to suppress this material that may constitute felonious activity? Probably not, if for no other reason than that your client’s confession of participation-active or not-places her in jeopardy, and you must not reveal your client’s confidential communications to you without her express consent or her direction to do so.

There is, unfortunately, a suicidal streak in many personalities who believe that “the truth will set you free.” Believe me, not in this life or the next, and I have often cautioned my clients to “Always tell the truth, but don’t ­always be telling it!”

A strategic secret well played is often much more productive of positive results all the way around than is a dirty bomb prematurely exploded in the most public of forums - the tabloids.

Financial Services: Review of electronic communications

By James J. Eccleston
Shaheen, Novoselsky, Staat, Filipowski & Eccleston

INRA (the Financial Industry Regulatory Authority) has issued Regulatory Notice 07-59 relating to electronic communications, such as e-mail, instant ­messaging, text messaging, weblogs, and podcasting, which financial services firms and their employees may use to conduct business. Let’s examine the key points of the notice.

Preliminarily, firms must establish, maintain, and enforce electronic communication supervisory systems and procedures reasonably designed to achieve compliance with ­securities laws and rules. FINRA recognizes that technological innovations have brought and will continue to bring new challenges in supervising electronic communications.

FINRA also recognizes that supervisory systems and procedures may differ among firms, depending on their size and the type of business that they conduct. And, with some exceptions for mandatory ­reviews, firms “generally may decide by employing risk-based principles the extent to which the review of incoming, outgoing and internal electronic communications is necessary in accordance with the supervision of their business.”

In Notice 07-59, FINRA divides its guidance into six categories. These are: (1) written policies and procedures; (2) types of communications requiring review; (3) identification of the persons responsible for the review; (4) method of review; (5) frequency of the review; and (6) documentation of the review.

First, regarding written policies and procedures, FINRA recommends that firms allow employees quick and easy access to their ­policies and procedures. Firms should state what forms of electronic communication are permissible, and which are not permissible. Firms should specify the consequences for non-compliance with those policies and ­procedures, and should conduct training on a regular and as-needed basis.

Second, FINRA notes that, regardless of what technology is used, if a firm permits its use, then it must have systems and procedures in place reasonably designed to supervise those communications.

As technologies now extend beyond office network servers and firm e-mail addresses to other e-mail platforms (such as AOL or Yahoo mail), message boards, and E-faxes, FINRA notes that some firms choose simply to block access, prohibit use, and require compliance certifications by employees.

FINRA expects firms “to prohibit, through policies and procedures, communications with the public for business purposes from employees’ own electronic ­devices unless the member is capable of ­supervising, receiving and retaining such communications.”

Third, a firm’s procedures must clearly ­ident­ify the person responsible for performing the reviews. While the reviewer may ­delegate ­certain functions, all reviewers must have “sufficient knowledge, experience and training to ­adequately perform the reviews.” ­Finally, an individual must not ­conduct ­super­visory ­reviews of his or her own electronic ­com­munications (unless there is no reasonable alternative, as with a sole ­proprietor).

Fourth, regarding the method of review, FINRA discusses lexicon-based reviews, ­random reviews and a combination of both methods. Lexicon-based reviews should contain a meaningful list of phrases, words, and industry jargon based on the type of business that the firm conducts and its customer base.

The list should be able to yield a meaningful sample of “flagged” communications. The system should be able to read attachments.

When firms select the random review method, they can choose to review either a certain percentage of electronic communications based on a branch, ­department, or business unit, or a certain percentage for each individual in the branch, department, or business unit.

FINRA recommends that firms use a combination of both methods - lexicon-based ­reviews and random reviews.

Additionally, no matter what method firms choose, they must “alert their reviewers as to the issues to be raised and the material to be examined, including acceptable content.” Likewise, firms must “incorporate ongoing evaluation procedures to identify and address any ‘loopholes’ or other issues that may arise as the means of transmitting sensitive information ‘under the regulatory radar’ become more sophisticated and difficult to capture.”

Fifth, FINRA states that the frequency of the review will vary depending on the type of business conducted, the type of customers involved, the scope of the activities, the ­geographical location of the activities, the ­disciplinary record of those involved, and the volume of communications subject to review.

FINRA also recommends that firms prescribe reasonable time frames for supervisors to complete their ­reviews.

Finally, firms must document their reviews. FINRA recommends that, at a minimum, firms must evidence the date of the review and any steps taken as a result of the review. FINRA cautions that reviewers do not satisfy this ­requirement merely by opening the electronic communication.

In conclusion, FINRA’s guidance should assist firms navigate through the difficult and ever-changing waters of supervising ­electronic communications.

Firm Life

Jenner & Block has elected 10 associates to partnership, including seven from Chicago: Amanda S. Amert, litigation; Debra M. Doyle, private client practice; Brian D. Hansen, litigation; Darrick J. Hooker, intellectual property; Jill R. Sheiman, mergers and acquisitions; Raymond D. Sinnappan, employee benefits and executive compensation; and John R. Storino, litigation and construction law.

Jenner & Block has promoted 10 associates to partnership. Pictured are the seven new partners in the firm’s Chicago office. From left, back row: Raymond D. Sinnappan, Darrick J. Hooker, John R. Storino, and Brian D. Hansen. From left, front row: Jill R. Sheiman, Amanda S. Amert, and Debra M. Doyle. —Photo by Mary Hanlon

Mayer Brown announced plans to merge with a Hong Kong firm, Johnson Stokes & Master. Johnson Stokes & Master, which was established in 1863, is one of the largest law firms in Asia, with offices in Hong Kong, mainland China, Thailand, and Vietnam.

Paul, Hastings, Janofsky & Walker has expanded its presence in Europe by combining with Smeets Haas Wolff, a law firm in Frankfurt, Germany. Paul Hastings now has European offices in London, Paris, Milan, and Brussels, in addition to the new office in Frankfurt.

Foley & Lardner announced the opening of an office in Miami. The office will initially include nine lawyers from the Miami office of Buchanan Ingersoll & Rooney. This is Foley’s fifth office in Florida.

Winston & Strawn opened a major office in Charlotte, N.C., to expand its corporate finance capabilities. The firm added six partners who previously practiced at Kennedy Coving­ton Lobdell & Hickman. Dean A. Warren will head the office.

U.S. Attorney General Michael B. Mukasey has appointed two Illinois prosecutors to the 2008 Attorney General’s Advisory Committee of United States Attorneys: U.S. Attorney Patrick J. Fitzgerald of the Northern District, and U.S. Attorney Rodger A. Heaton of the Central District.

Winston & Strawn partner Richard William­son, has been appointed by President George W. Bush to serve as Special Envoy to Sudan.

Mark Mehlman, a partner at Sonnenschein Nath & Rosenthal, has been elected president of the American College of Real Estate Lawyers for 2008.

Three Chicago attorneys have formed a new commercial litigation firm, Valorem Law Group, with offices at 35 E. Wacker Dr. The firm will use a non-hourly billing process that includes giving clients the ability to adjust their fees to match the value the firm has provided. The firm consists of Patrick J. Lamb, from Butler Rubin Saltarelli & Boyd; Hugh J. Totten, from Perkins Coie; and Mark Sayre, from the Los Angeles office of Jackson & Wallace.

> Partners

Cynthia A. Homan will be the first attorney to hold the position of diversity shareholder at Brinks Hofer Gilson & Lione. She is a shareholder in the firm’s appellate and litigation groups. Homan will be responsible for leading and implementing the firm’s diversity initiative.

Steven B. Harris has become an equity partner at Parrillo Weiss & O’Halloran. Harris concentrates on insurance defense. The firm has admitted Susan K. Sherman, civil litigation and personal injury defense, to the partnership.

Holland & Knight has elevated Eric Dorkin, litigation, to partner.

Reed Smith Sachnoff & Weaver has named Jennifer Yule DePriest, intellectual property, a partner in the firm.

Scandaglia & Ryan has named Therese Tully, hospitality industry litigation, partnership disputes, and trademark prosecutions, a partner.

Schiff Hardin has elected six new partners, four of them in the Chicago office. The four new Chicago partners are: Edward M. Casmere, product liability; Matthew B. Mock, litigation; Carrie Lynn H. Okizaki, construction; and Alex B. Young, corporate and securities. In addition, the firm has named Lisa A. Brown, a Chicago-based litigation partner, the Partner-in-Charge of Associate Development, a new firm position.

Robbins, Schwartz, Nicholas, Lifton & Taylor has named Nanci N. Rogers a partner. Rogers practices litigation, land use, labor and employment, and education law.

Barnes & Thornburg has elected nine attorneys as partners, including two in its Chicago office: Kevin C. Driscoll, finance, insolvency, and restructuring; and Charla L. Hausler, litigation.

Kaye Scholer has elected Michael D. Messersmith, business reorganization and creditors’ rights, to counsel.

Schopf & Weiss has named William B. Berndt, commercial litigation, a partner at the firm.

Segal McCambridge Singer & Mahoney has elected four attorneys to shareholder in the firm, two from the Chicago office: Catherine E. Goldhaber, products liability, toxic tort/hazardous substances; and Chad Layton, commercial, construction, and insurance.

Butler Rubin Saltarelli & Boyd has named two associates to the partnership: Julie Rodriguez Aldort and Mark A. Schwartz; both practice reinsurance and complex commercial litigation.

Tressler, Soderstrom, Maloney & Priess has invited the following attorneys to become partners: Donald E. Elder, insurance coverage and commercial litigation; Kathleen Elliott (Bolingbrook office), municipal law; and Andrew J. Purcell, litigation.

Bell, Boyd & Lloyd has named five assoc­iates to partnership: Heather A. Boice, intellectual property; Jason A. Engel, intellectual property; Dawn L. Johnson, litigation; Marcus M. Lee, real estate; and Dan G. Rosenberg, litigation.

Sugar, Friedberg & Felsenthal has admitted Michelle M. Huhnke, estate planning, as a partner in the firm.

Cogan & McNabola has promoted John M. Power to partner.

McGuireWoods has elevated three associates to partners in its Chicago office: John A. Leja, intellectual property litigation/patents department; Derek A. Roach, technology and business department; and Christopher J. Verstrate, international department.

Greenberg Traurig has elevated 53 attorneys to shareholders, including eight in Chicago named shareholders, and two attorneys named of counsel. The new shareholders are: Kimberly M. DeShano, litigation; Gregory A. Fishman, real estate; Amy C. Kurson, governmental affairs; Todd A. Mazur, corporate and securities; Amit Mehta, corporate and securities; Martha A. Sabol, governmental affairs and gaming; Jeffrey L. Terry, corporate and securities; and Jason M. Toon, real estate and retail. David W. Baddley, business reorganization and bankruptcy; and Mary Kathryn McCreery, real estate; are new of counsel.

> Moves

To SmithAmundsen: partner Eugena A. Whitson-Owen, construction and product liability, from Moore, Strickland & Whitson-Owen.

To Drinker, Biddle & Reath: associate Robert G. Cimo Jr., health law, from Mc­Dermott Will & Emery.

To Greenberg Traurig: of counsel Scott H. Kapp, corporate and securities, from Arnstein & Lehr.

To Seyfarth Shaw: partner Jacqueline M. Vidmar, environmental, safety and toxic torts, from Sonnenschein Nath & Rosenthal.

To Sidley Austin: partner Stanley M. Stevens, real estate, from Equity Office Properties Trust, where he was executive vice president, chief legal counsel.

To Sugar, Friedberg & Felsenthal: partner Leland H. Chait, litigation, health law, and antitrust, from McGuireWoods.

To Reed Smith Sachnoff & Weaver: partner Thomas A. Marrinson, insurance recovery, from Morgan, Lewis & Bockius.

To DLA Piper: partner John E. Truty, environmental, from Bell, Boyd & Lloyd.

To Swanson, Martin & Bell: partner Edward R. Duncan Jr., mediation practice; Duncan was previously a DuPage County circuit judge.

To McGuireWoods: associate Sarah A. Zielinski, complex commercial, product, and consumer litigation, from Chicago-Kent College of Law, where she was a legal writing teaching assistant.

To Hoeppner Wagner & Evans, of Valpar­aiso, Ind.: associate Sarah L. Mutz, labor and employment and commercial litigation, from Mayer Brown.

To Katten Muchin Rosenman: partner Ross Pazzol, financial services, from Mayer Brown.

To Barack Ferrazzano Kirschbaum & Nagel­berg: partner Rachel M. Trummel, class action and other complex litigation, from Mc­Dermott Will & Emery; associate Jeremy R. Segal, commercial real estate, from McDermott Will & Emery; and new associates Sharon E. Calhoun, commercial litigation, Candice C. Jones, commercial litigation, and Brandon C. Prosansky, also commercial litigation.

To Tabet DiVito & Rothstein: of counsel Daniel L. Stanner, commercial litigation; assoc­iate Amy C. Crawford, complex litigation, from Scandaglia & Ryan; and new associate Kathleen M. Cunniff.

To Leydig, Voit & Mayer: associates John L. Gase, emphasis in the biological and chemical arts; Robert T. Wittmann, emphasis in the electrical, computer, and mechanical arts; and Kevin C. Parks, trademark and copyright litigation, from SOUNDIES, Inc., a music ­licensing and counseling agency, which he founded.

To Schiff Hardin: associate Valarie Hays, litigation, from the U.S. Attorney’s Office for the Northern District of Illinois.

To Meckler Bulger & Tilson: counsel James F. Henry, arbitration and mediation. Henry was a Cook County Circuit Court judge until his retirement in October 2007.

To Chapman and Cutler: partner Philip Edison, real estate, from Adams LaSalle Realty, where he handled acquisitions and deal structuring for properties in several states.

> Changes

Ronald Wilder, a partner at Schiff Hardin since 1979, died on Dec. 19, at age 70, after a long fight with cancer. During his career at Schiff Hardin, Wilder concentrated his practice in the representation of management in labor and discrimination matters.

Mark T. Banner, a partner at Banner & Witcoff for more than three decades, died on Dec. 30, at age 57, following a five-year battle with cancer. Banner focused his practice on patent and trademark litigation.

Practical Matters: No talking in court

By David N. Heilmann
Clausen Miller

“No talking! If you’re gonna act like that, take it outside the courtroom!”

I recently was sitting in a Will County court when I heard the bailiff yelling this at a trial lawyer.

The lawyer was reduced to the status of a scolded 9-year-old. It reminded me of another time when a bailiff ran across the courtroom and said, “Are you chewing gum? No gum chewing in here!” (Because that obviously disrupts the entire legal system.) The red-faced, full-cheeked lawyer blew a bubble and scurried out.

We’ve all seen it: bailiffs and clerks telling lawyers to “sssshhhhhh.” These days there seems to be only one meaning for that: no talking in court. This year marks the anniversary of a time when it had an entirely different meaning.

Twenty-five years ago the FBI announced that Cook County, the nation’s largest court system, had been targeted for investigation for bribery and other serious crimes involving the fixing of cases. It was called Operation Greylord, one of the most serious investigations of our legal time, and yet named after the silly curly wigs worn by British judges.

The investigation was fueled in 1980 when prosecutor Terrence Hake went undercover for the FBI for more than three years, eventually leading to many indictments. The evidence would reveal bailiffs and clerks who wielded far greater power than the current cast of retired drill sergeants. They took money and gave it to judges who let criminals go free.

The first person convicted in the Greylord operation was Deputy Clerk Harold Conn. He was caught on FBI tapes and then found guilty of accepting money that he passed on to Cook County judges as payments for fixing tickets.

Then came a slew of indictments, 92 in all, including 17 judges, 48 lawyers, eight policemen, 10 deputy sheriffs, eight court officials, and one state legislator. (www.fbi.gov). One of the last cases involved bailiff Lucius Robinson, an alleged bagman for Judge Thomas Maloney.

As part of the case against Maloney, the government introduced evidence of a bribe to fix a murder. Attorney William Swano represented Wilfredo Rosario, who was to go on trial before Judge Maloney for two murders. The prosecutors sought to use a confession made by Rosario. Swano talked with bailiff Robinson, who let on that he could arrange a fix with Judge Maloney. Maloney basically confirmed this, telling Swano that Robinson is “my guy, deal with him.” Swano allegedly handed Robinson a white envelope with a portion of the bribe. Judge Maloney suppressed the confession and found Rosario not guilty. U.S. v. Maloney, 71 F.3d 645 (7th Cir. 1995).

Why is it worth bringing up again 25 years later? As a reminder, because for some strange reason these things have a habit of repeating.

Go back another 25 years to 1958, and you have burglar Richie Morrison, who conspired with Chicago police officers to loot North Side retail stores. He once got caught, but expected his trial to be fixed because he was “in” with so many policemen. The fix didn’t happen and he promptly informed the state’s attorney of the corrupt policemen, thus leading to their prosecution in what is known as the Summerdale Scandal. “The scandal was of unprecedented magnitude, even for wicked old Cook County where malfeasance on the part of elected officials was (and by and large still is) just the normal course of doing the business of government.” (To Serve and Collect, Richard C. Lindberg, Prager Publishers, 1991.

Go back another 25 years to the early 1930s and you have Mayor “Ten Percent Tony” Cermak, who made millions controlling everything from organized gambling to the police department

Mind you, we don’t just have a 25-year itch. There have probably been a few thousand incidents in between. Who knows how many, but undoubtedly there are many who know.

That’s where the change has come. Today, if a lawyer has information about other lawyers or judges engaging in illegal activity, he must report it or that lawyer may be disciplined. Illinois Rules of Professional Conduct Rule 8.3; 8.4. That wasn’t always the case. But things changed in 1988 when attorney James Himmel was suspended for one year for failure to report a fellow attorney’s misconduct. In re Himmel, 125 Ill.2d 531, 127 Ill.Dec. 708, 533 N.E.2d 79 (1988).

If you have that knowledge, report it. If you are still among those who think you can get away with fixing cases, consider the telling words of Judge Frank Wilson. He is known as the judge who took $10,000 in 1977 to let reputed murderer Harry Aleman go free. Accounts of what happened after have the judge realizing the gravity of his mistake, asking for more money, and saying to the bagman, “You have ruined my life for $10,000.”

That was 1977, a time when I saw Judge Wilson every week at the country club. I caddied for Wilson and eventually played a few rounds with him. We never knew if it was true. Then Operation Greylord became public and the judge retired and moved to Arizona. In 1990, the FBI was coming to question him and he put a gun to his head.

A life ruined for $10,000.

If you’re gonna act like that, take it outside the courtroom.

Ethics: Depression as a disciplinary issue

By Thomas P. McGarry and Thomas P. Sukowicz
Hinshaw & Culbertson

The Wall Street Journal recently published an article on attorneys who are affected by depression. (”Opening Up About Depression,” by Sue Shellenbarger, Wall Street Journal, Dec. 13, 2007, page D1.) The article reported that some studies show that 19 percent of lawyers battle depression, compared with 6.7 percent of the general population. It also reported that 20 percent of attorneys were problem drinkers, compared with 10 percent of the general population.

Depression, other mental and emotional problems, and substance abuse can become issues to be addressed by the ARDC. For example, when depression, a mental or emotional problem, or substance abuse is so severe that an attorney cannot effectively function, deadlines will be missed, and other mistakes will be made.

A lawyer’s inability to handle a legal matter in a competent manner may run afoul of Rule 1.1(a), which requires a lawyer to provide compe­tent representation to clients. Competence requires the knowledge, skill, thorough­ness, and preparation necessary for the representation.

Section (b) of that rule prohibits a lawyer from representing a client if the lawyer knows or should reasonably know that he or she is not competent to provide the representation.

Rule 1.3 requires that a lawyer act with reasonable diligence and promptness in representing a client. Depression that leads to an inability to meet deadlines or to respond to the requests of the client or opposing counsel may result in a violation of Rule 1.3.

The administrator of the ARDC commonly charges a violation of this rule when lawyers miss statutes of limitations or otherwise fail to take action, and the client’s legal matter is harmed.

Lawyers are also required to communicate with clients. The general rules regarding communication with clients are contained in Rule 1.4, which provides that lawyers keep clients reasonably informed about the status of their legal matters and promptly comply with reasonable requests for information. It also requires that lawyers explain matters to clients to the extent reasonably necessary to permit them to make informed decisions regarding the representation.

Lack of communication is one of the most common reasons that clients complain about their attorneys to the ARDC. Lawyers may be depressed to the extent that they cannot return client calls or provide status reports. At times, they may also stop communicating with clients because they do not want to admit that a mistake has been made.

Lawyers who are unable to meet deadlines and communicate with clients often become the subject of complaints to the ARDC.

When the ARDC charges a lawyer with neglect or lack of communication in a formal disciplinary proceeding, the fact of the attorney’s clinical depression or other mental or emotional condition is evidence to be considered in mitigation of the misconduct.

Mitigation does not excuse the misconduct, but it often results in a lesser sanction and may result in a sanction that includes probation, thus allowing the attorney to continue to practice law during the probationary period as long as the attorney complies with the conditions of probation.

Lawyers who have neglected client matters due to depression have been suspended with their suspensions stayed after a period of time with obtaining treatment for the depression one of the conditions of probation. 04 CH 113, M.R. 21395 (2007); 03 CH 94, M.R. 19794 (2005).

When an attorney’s depression becomes so severe that he or she is incapacitated from continuing to practice law, the administrator may initiate proceedings under Supreme Court Rule 758 to have the attorney transferred to disability inactive status.

Transfer to disability inactive status requires the attorney to stop practicing law until the removal of the disability or to continue to practice law subject to conditions imposed by the Supreme Court. Upon the filing of a petition with the Court, the attorney may be allowed to transfer back to active status if the administrator agrees that the disability has been removed. If the administrator objects to the petition, the matter may be referred to the Hearing Board.

Because of the disciplinary action that could result from neglect and lack of communication, as well as civil liability for malpractice, lawyers who find themselves in a state of depression should seek assistance to deal with that condition.

Ignoring the problem is risky, given the kinds of errors that can result from severe depression and the kinds of disciplinary action that may ensue if those errors occur.

If a lawyer believes there is nowhere else to turn, the Lawyers’ Assistance Program may be able to help. LAP provides confidential assistance to attorneys dealing with alcohol abuse, drug addiction, and mental health issues such as depression.

Since 1980, LAP has been helping attorneys to address problems such as these before they jeopardize the lawyer’s career. You may contact LAP at 800-LAP-1233 or gethelp@ illinoislap.org. The LAP Web site is www.illinoislap.org.

 

 

Q&A: Sandy Lourie

Age: 50
Family: Wife and two children, ages 9 and 12.
Education: A 1983 graduate of the University of Chicago Law School and the University of Chicago Graduate School of Business; and a 1979 graduate of Duke University.
Professional: He concentrates his practice on general corporate, securities, and international law matters at Barack Ferrazzano Kirschbaum & Nagelberg, and is co-chair of the firm’s corporate and securities group. His clients include Hitachi, Wanxiang Group, Mizuho Bank, Mediware Information Systems, and The Horton Group.

1. What is the last big deal or case you worked on, and what did it entail?
The last big trans­action I worked on we represented Hitachi and we put together a global alliance between Hitachi and General Electric to produce nuclear power plants, and provide nuclear services around the world. There are still a lot of aspects of it that are ongoing. It’s been going on for most of [2007]. The transactions themselves actually closed in June and July in two different parts.

2. What is the weirdest thing that ever happened to you as a lawyer?
In the early ’90s, I was working on a public offering. I was at my prior law firm at the time. The company was in the petroleum industry and had one primary customer. We closed the public offering on a Friday, and then the customer filed for bankruptcy the next Monday, which meant that the SEC started looking into the offering. Despite conducting extensive due diligence, we had no idea this was coming, and this just absolutely blew us away.

We went into a state of panic. There were a number of people working on the team, and we went back and looked at the due diligence we had done and tried to see if there was anything that should have indicated this was happening. Eventually we changed some of disclosures on an ongoing basis, but the offering had already gone public and the stock had been sold. It was too late to do anything much at that point.

3. If you could have lunch with anyone, living or dead, who would it be and why?
George Washington. It would be interesting to talk about what it takes to have a vision to really do something different, and really change the world in which people are living. And I think he probably had that. It would just be interesting to hear some of the highs and lows he went through as he was leading the revolution.

4. What is your favorite book, television show, or movie about lawyers, and why?
I really enjoyed “L.A. Law,” and the reason was, it was so different from my life and it was interesting to see how a firm like that was portrayed. It really had very, very little to do with reality. It was especially interesting to see how they were able to solve every case and finalize every transaction in one hour, which maybe it’s something I’m doing wrong, but I’ve just not had that type of luck.

5. What advice do you have for new lawyers or those wanting to become lawyers?
I think I would advise new lawyers to make sure they don’t over-specialize too early. I think that clients, at least on the transaction side, are looking for general advice. It is a shame, but it is interesting how quickly new lawyers are willing to say, “You need to talk to the specialist,” and really hand things off …

In my practice, where I am a general corporate lawyer, it is important to really know what’s going on with all aspects of the transactions.

6. What do you like the most and the least about being a lawyer?
I like having the freedom to work with a number of different companies and to learn their industries. To me, it’s fun dealing with clients all over the world, and in a wide variety of businesses. And, really, in order to be an effective transaction lawyer, you really have to learn something about all the businesses.

I think what I enjoy least is keeping track of time, and working with clients on billing who are not sure what they are purchasing. It’s frustrating, especially with foreign clients who may not be as used to paying hourly rates as domestic clients. It’s often difficult for them to understand the value of a service that may be intangible.

7. If you didn’t become a lawyer, what career would you have chosen?
In high school I worked at a theme park and I thought that was great. And they offered me an opportunity to come back after college and do theme park management. I think that would have been something really interesting.

You are dealing with people who are happy to be in your office, which is not always the case as a lawyer. People are always having fun. It seems like at the end of the day you are managing a small village — or, in the case of Disney, not so small.

— Interviewed by Olivia Clarke

Counsel’s Table: Left with a perplexing meal

By Russell B. Selman
Katten Muchin Rosenman • Restaurant Critic

I never wonder, “Why am I here?” When I go to Brasserie Ruhlmann — the reason is to stare at beautiful people in a beautiful room.

Yes, this is a restaurant too, but the food is not enough to make me return. I go to BR to have a martini, talk, and avoid the horror of being home.

Situated on the ground floor of the former Montgomery Ward headquarters, BR is monumentally scaled. Really, like a walled city with banquette tables at the perimeter protecting the chattering classes within. Large mirrors reflect everything and nothing seems “everyday.”

So I had the right mindset to eat — I was truly receptive to enjoying my meal. I was ready, but BR was not.

The most not-ready choices are the meats. The Porterhouse for two was a gristly dis­appointment. I chewed and chewed, waiting for the meat to transition into the soft, rich cake-like flavor of my dreams. Instead, the Porterhouse is a damn shame and, at $82, it ought to be illegal.

The pepper steak was hardly better — it arrived as a hunk of meat looking as lonely and eerie as an Easter Island head and was just as tasty.

There is so much wrong with BR meats that it’s really perplexing. How can a Chicago restaurant go wrong with meat? It just doesn’t make sense. We practically have great meat hanging from every lamppost in this town. Just like you cannot re-heat a soufflé, Mr. Ruhlmann, you cannot serve such duct-taped meat scraps. You’re in Chicago now and, yes, we know the difference.

The food really left me deflated. I hunched over our slightly too-low table, which, due to an oversized base, left no room for my feet and caused me to sit like a sumo wrestler trying to reason with a goose. So, I had another Grey Goose Martini and began to appreciate the atmosphere, if not the protein.

Have a few drinks, maybe a few raw oysters to add some rectitude to an otherwise liquid meal, and enjoy BR in all its splendor. Just skip the meat.

Pleadings:
Brasserie Ruhlmann
500 W. Superior St.
(312) 494-1900

Court costs:
Appetizers $ 8 - $20; Entrees $20 - $40

Verdict:
2 gavels

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