In the Woodpile: Addressing civility

By Shawn Wood
Seyfarth Shaw

Every other year, the Illinois State Bar Association holds its Allerton Conference, where judges and lawyers spend a few days at the Starved Rock Lodge in Utica to confront an issue impacting our profession.

The topics tackled in prior years have ranged from reforming the jury system to ”The Quest for Justice: Cost, Efficiency and Fairness for All.” In 2008, the Allerton Conference focused on ”Civility Initiatives for Civil Litigation.” When I heard this topic, I’ll confess, I was a little skeptical.

I appreciate that incivility remains a serious issue in our profession. It impacts our day-to-day lives, and, in extreme cases, has caused good lawyers to leave the practice of law.

It’s just that, I attended a civility seminar in DuPage County a few years ago, and I walked away with mixed feelings. The speakers inspired me, but when I attempted to strike up a dialogue with one during the reception, he didn’t show any sincere interest in solving ”the civility crisis.” He was more focused on stalking the waiter for more crab Rangoon.

The articles I’ve historically encountered regarding professionalism and civility often seem well-intentioned, but short on solutions. There’s also a tendency to blame incivility on the younger generation while waxing about the glory days of the profession.

Dishing out this discouraging, ”you missed out” message leaves new lawyers feeling like William Miller in ”Almost Famous,” when legendary rock critic Lester Bangs tells him ”you’re damn good, too bad you missed out on rock ‘n’ roll.”

So imagine my surprise when I attended this year’s Allerton Conference and the entire civility program steered clear of rose-colored nostalgia. In fact, to use a description befitting the professionalism emphasized throughout the conference, it totally rocked.

The speakers at this conference grabbed attendees by the lapels from the outset, providing numbers on the rates of depression, anxiety, hostility, paranoia, social alienation, isolation, alcoholism, divorce, and suicide among lawyers.

The conference then moved quickly to identifying core reasons for the problems, outlining solutions and exploring whose responsibility it is to implement those solutions.

One commentator explained that the very nature of civil litigation involves two lawyers (often Type A personalities) squaring off against one another under circumstances where there will be a winner and loser, and part of each lawyer’s job will be to capitalize on any possible error in judgment that the other side makes.

Others emphasized that client expectations often drive incivility, as the perception lingers that clients favor machismo in their lawyers and make their hiring decisions accordingly.

Another speaker cited the pressures to increase profits-per-partner in firms and outlined what he called ‘’strategic incivility,” positing the well-received theory that most lawyers are not inherently mean-spirited, but are driven to act as such because they believe incivility to be a profitable strategic tactic in litigation.

This lawyer proposed that the solution to the problem of strategic incivility lies in making it unprofitable through a new Illinois Supreme Court Rule, patterned after 28 U.S.C. 1927, sanctioning ”vexatious” conduct.

While further commentary during the conference suggested that the Illinois Supreme Court justices and members of its rules committee in attendance were not enamored with the idea of a new Supreme Court rule governing this issue, courts and local bar associations have made significant strides in identifying and reducing incivility in civil practice.

These programs have included the appointment of respected members of the bar who personally meet and work with attorneys or judges whose conduct fails to satisfy established standards of civility and professionalism.

Some of these measures have met with resistance when tried in other jurisdictions. In California and Arizona, for example, rules which required lawyers to ”abstain from all offensive personality” [insert own joke here] were amended following a 9th Circuit ruling which held this phrase to be unconstitutionally vague.

In other states, lawyers facing charges of incivility have sought to raise First Amendment defenses.

These types of challenges must be considered by any court or bar association seeking to strike a balance between remedying incivility and triggering other legal challenges.

The final point I learned at this conference was that the alleged ”loss of civility” within our profession is something that has been raised and debated over the last three decades.

From the ABA’s Stanley Commission Report (to address a perceived shift away from the principles of professionalism in the 1980s) to the Haynsworth Report (”to better inculcate a higher sense of professionalism among American Lawyers” in the 1990s), every new generation has encountered the same jibe from prior generations who insisted that standards of professionalism were declining.

This provided me with a new, optimistic perspective, because if this perceived decline in civility has been raised for the last 30 years, at least the current leaders are working harder than ever to do something about it.

I accordingly left the seminar with my faith in our profession restored. Or, in Lester Bangs’ parlance, I realized I hadn’t missed out on rock ‘n’ roll after all.

Practical Matters: What makes a good mediator

By David M. Heilmann
Clausen Miller

”Look, you two need to come together, express your emotions, defuse the anger, and work on your ongoing relationship.”

Sounds like Dr. Phil, doesn’t it? Actually, these are a few of the reasons why, according to the American Bar Association, you mediate a case.

Expressing our emotions.

For some reason, I can’t picture myself lying on a couch as former Judge Don O’Connell asks, ”Tell me how you feel today. Are you angry at opposing counsel? Do you think he’s a bitter little man?”

And as for the ongoing relationship part, well, that’s out.

I’ll say, ”hi,” in the elevator and be friendly, but don’t expect dinner.

The ABA is not alone. There are fairly standard definitions of what the mediation process is to entail. In defining the role of the mediator, JAMS notes on its website that ”the mediator does not decide what is ‘fair’ or ‘right,’ does not assess blame nor render an opinion on the merits or chances of success if the case were litigated. Rather, the mediator acts as a catalyst between opposing interests, attempting to bring them together by defining issues and eliminating obstacles to communication, while moderating and guiding the process to avoid confrontation and ill will.”

Is that our expectation of the mediation process?

Is it just someone to facilitate communication? Or is it someone who has knowledge of the legal issues and will give an opinion on where he or she believes the weight of the evidences lies?

The ABA leans toward the former. ”Mediation doesn’t rely on specific points of law. People solve their own problems by looking to the future instead of finding fault or blame. In contrast, the courts make judgments based upon the law.”

If that’s the case, then why do we see so many former judges as mediators? The courts make rulings based upon the law.

Further, a judge is elected or appointed primarily because of his or her legal experience, not expertise in counseling, anger management skills, or the ability to promote loving and harmonious relationships.

As a matter of fact, one or two judges have been known to be downright crabby themselves.

Judge Gomberg yelled at me 20 years ago and I’m still not over it. But I digress.

The traditional definitions of mediation may not comport with what we, in practice, want and expect from a mediator. Many attorneys select mediators, including former judges, precisely because of their knowledge of the law and their ability to offer some legal insight into the issues.

Peter McCabe, a senior partner at Winston and Strawn, offered these thoughts.

”In selecting a mediator, I look for (1) a lawyer with actual experience trying cases involving the subject matter of the litigation; (2) a trial judge who has had many years of experience trying cases involving the subject matter of the litigation; or (3) a lawyer or layperson with substantial knowledge and experience of the particular industry in which the litigants find themselves.”

Key was the knowledge and experience with the subject matter. Why?

”I want someone who will have credibility while making the case to either my opponent or his client — or perhaps to my own client — that a particular settlement makes good business and litigation sense. If the mediator doesn’t fall into one of these categories, then I generally find that the mediation will be doomed from the start.”

Veteran trial attorney Robert Heyne of Tressler, Soderstrom, Maloney & Priess had similar sentiments. ”A mediator has to be prepared for discussions of the fact issues and the law. Then, through meetings with the parties, there comes a narrowing of the factual and legal issues and that suggests the value of the case.”

Again, more than facilitating communication, the preferred effort from the mediator was working on narrowing the legal issues.

One of my partners, Scott Ritchie, agreed.

”Every mediator should have a good command of the relevant law, be willing to devote the time necessary to learn the important facts creating the controversy, and then objectively explain the relative strengths and weaknesses of the merits of the case to each of the parties to direct the parties to resolution.”

Many mediators and attorneys will tell you that the most successful mediations are those where it is the attorneys who have worked in advance with their clients to put emotions aside and to have realistic expectations from the process.

”There is some point beyond which a client would not accept settlement, so the lawyers must help the client find that point of indifference and commit in advance to accepting any offer that is superior to that point or position, offered Robert Knuepfer, a senior partner at Baker & McKenzie.

”Going for everything inevitably leads to failure. Mediation is compromise, not a winner-take-all exercise.”

Unless of course you’re really, really angry and need that time on the mediation couch.

Pro Bono: The right to counsel

By Margaret C. Benson
Chicago Volunteer Legal Services

Happy birthday, America. You look great! Can you believe it’s been 232 years? It seems like only yesterday when our guys were sweating it out in Philly. Sure, you’ve had some growing pains, but, for the most part, it’s been a pretty good ride.

Normally, we’d sing the Happy Birthday song, but let’s celebrate your special day with Irving Berlin’s great ”God Bless America.” Not only is it a classic, but an immigrant, one of millions who have contributed to your greatness, wrote it.

Just ask founding father James Madison. He said, ”America was indebted to immigration for her settlement and prosperity. That part of America which had encouraged them most had advanced most rapidly in population, agriculture and the arts.”

Thomas Jefferson said, ”Our ancestors … possessed a right, which nature has given to all men, of departing from the country in which chance, not choice has placed them.”

Consider that: immigration as a right. That’s a very American concept. We Americans have always prided ourselves on spreading our gospels of democracy, human rights, and the rule of law around the world.

So, consider the young man seeking asylum from a repressive regime that wants to silence him for speaking out against the persecution of minorities. He believes in freedom of speech.

That’s American.

Consider the couple who emigrated here to find a better life for their young children. They want citizenship so that they can vote. How American is that?

And the adult children who want to bring their aging parents here so that they can comfort and support them in their remaining years. American family ideals, right?

Consider the immigrant who wants to flee an abusive marriage, but can’t because her home-grown husband threatens her with deportation. Protecting her and their children is the American thing to do.

And, finally, consider that America is a nation of laws, and that the protection of our laws and our legal system extends to everyone within our borders, including those here illegally.

People need attorneys to access the law. More importantly, our legal system uses attorneys to guarantee its protections.

That’s where you come in. Although the law gives non-U.S. citizen-immigrants the right to counsel, they have to find and hire attorneys on their own. That’s pretty hard to do with limited English skills and limited resources. It’s nearly impossible when you are sitting in a Homeland Security detention cell awaiting deportation.

Attorneys who are interested in handling pro bono cases for immigrants get compelling cases that help them acquire new legal skills or hone existing ones.

Want litigation? Asylum cases, which nearly always go to trial, provide invaluable practical litigation experience.

Or, would you prefer a different type of heart-tugging case? Represent a detained adult or juvenile fighting a deportation order, or a woman who qualifies for immigration benefits under the Violence Against Women Act (VAWA) because she’s been abused by a U.S. citizen or a permanent resident.

Not really a Perry Mason or Denny Crane type? Then help people complete and file their applications for lawful permanent residence or citizenship.

If you’d prefer to limit your pro bono work to non-immigration cases, don’t worry there’s plenty you can do. Newly arrived Americans are more likely to need legal assistance, and less likely to find it on their own. Thanks to sleazy landlords, cheating employers, illegal ”notario publicos,” and similar miscreants, Chicago’s immigrant community has plenty of need for pro bono attorneys.

Ethnic bar associations and neighborhood organizations can verify that. Amicus Poloniae, a Saturday-morning legal aid clinic on Milwaukee Avenue in the heart of Chicago’s Polish community, is always packed with Poles who need legal help. The Indo-American Bar Association hosts a Saturday afternoon clinic near Devon Avenue, where Indian, Pakistani, and Bangladeshi clients see volunteer attorneys for help with immigration, consumer, employment, and any number of garden-variety legal issues.

American law protects us all native-born and immigrants. So, whether you believe that our current immigration policy should be strictly enforced, or is a joke, whether you favor a wall or open borders, celebrate America’s birthday by representing an immigrant, pro bono.

It’s the red, white, and blue thing to do. Contact the National Immigrant Justice Center for asylum, immigration, and VAWA trainings and cases.

Contact Veronica Rodriguez at Chicago Volunteer Legal Services at (312) 332-1649 if you are interested in volunteering at Amicus Poloniae, the Indo-American Clinic, Asian Human Services Legal Clinic, or several other neighborhood clinics that serve primarily immigrant clientele.

Check out www.illinoisprobono.org to find other organizations that represent or offer legal services to immigrants.

3L and the City: Hire me!

By Maria Vasos
Chicago-Kent College of Law

I am a recent J.D. graduate with a certificate in criminal litigation and a lot of practical litigation experience through externships and clinics. If you are looking to hire a young trial attorney at a firm or government agency, e-mail mariavasos@gmail.com.

For this, my last column, I have decided to shamelessly hawk myself to the magazine’s readers in hopes that someone will offer me a permanent position. This should come as no surprise to those in tune with the realities of the job market these days.

For example, last month Sonnenschein Nath & Rosenthal laid off 37 lawyers, including six partners, four of counsel, and 27 associates — mostly in the areas of real estate and litigation. These, combined with its support staff layoffs, represented 7 percent of its 1,700-person workforce, in response to a falloff in work due to the economic decline.

New graduates not only have to compete with each other for the scarce decent availabilities left open in the bad economy, but they also have to compete against experienced attorneys who also find themselves in need of employment.

This especially does not bode well for new graduates, like myself, who are interested in hard-hit fields, like litigation.

It used to be that to get into the courtroom right away and gain valuable trial experience, young attorneys could join the state’s attorney’s or public defender’s offices for at least a few years to learn the ropes. With the county budget crisis still looming overhead like a dark storm cloud, this is no longer the case. Not only is there a hiring freeze, but actual assistant state’s attorneys and assistant public defenders are struggling and barely able to hold onto their jobs.

Earlier in the year, before the sales tax increase passed, there was talk of a 13 percent cutback in the criminal justice division, which would have resulted in the layoff of almost 200 assistant state’s attorneys and over 130 assistant public defenders, along with the closing of at least two suburban courthouses.

It is not just the poor, unstable economy that is making job searching difficult, it is also the increasing number of law students flooding the market. There are more graduating law students, in part because of the enrollment of hopeful students, and in part because universities are starting up more law schools. Since 1995 alone, the number of ABA-accredited law schools has increased 11 percent to 196.

There is a great Wall Street Journal online article from September 2007 entitled, ”Hard Case: Job Market Wanes for U.S. Lawyers.” It talks about how the legal market is not keeping up with general inflation and how the supply of lawyers is drowning the demand. It is a very sobering piece to those of us who are embarking on a legal career. I read and re-read this article regularly to give myself a reality check during my job search.

And graduating law students should be worried, because they have a huge burden of student-loan debt to pay that their predecessors did not have to worry about. Tuition rates at law schools have almost tripled the rate of inflation over the past 20 years.

The wsj.com story reported that, according to the ABA, 2006 graduates of public and private law schools had borrowed an average of $54,509 and $83,181, up 17 percent and 18.6 percent respectively.

Having gone to a private law school, I can say unequivocally that those numbers are low-balled compared with the actual numbers of the majority of my colleagues and myself.

Undoubtedly those figures take into account trust-fund babies who had their legal education handed to them on a silver platter, which skew the results. This also does not take into account undergraduate loan amounts that many students also have to shoulder upon graduation. Many students find themselves saddled with ”a mortgage” in student loans when the reality hits that only very few new lawyers will land a highly lucrative position.

I, too, have delusional hopes of getting my dream job, where I do exactly what makes me happy and get paid loads for doing it, but I always come to my senses shortly thereafter.

My most recent smelling-salt was the loan calculator feature during my online ”exit loan counseling” for my financial aid package. By inputting the total amount of all of your student loans, the calculator will determine how much you need to make in order to ”live comfortably.”

According to my numbers, the calculator said that I need to earn $173,000+ annually. This, of course, nauseated me to no end because that is a pipe dream if I ever saw one in my life. But I have made my peace with my studio apartment and cheap Asian-import car, which should help balance my expenses.

What stings now is being incessantly asked what job I have lined up. After giving my standard response that I’m focusing on the bar right now, for some reason people proceed to tell me about how their daughter/nephew/ neighbor was hired at [insert big firm here], but then turned it down to work at [insert other lucrative opportunity here], like somehow that bit of news would make me feel better about my own desperate situation.

So, please save me from any more exercises in self-deprecation and hire me. I am great, you’ll see.

Info Tech Law: Three strikes and you’re out

By Alan S. Wernick
Wernick & Associates

The U.S. Supreme Court says the right of publicity protects the proprietary interest of an individual to ”reap the reward of his endeavors.” Zacchini v Scripps-Howard Broadcasting Co. (1977). How does the right of publicity fare against the First Amendment? In a recent case, Major League Baseball stepped into the arena of the federal courts with this question, and struck out while trying to enforce rights of publicity.

Strike One

In C.B.C. Distribution and Marketing Inc. [CBC] v. Major League Baseball Advanced Media L.P. [MLB], (E.D. Mo. 2006), CBC filed a declaratory judgment action seeking to use, without license, the names of and information about major league baseball players in connection with CBC’s fantasy baseball products. CBC uses its Internet website (www.cdmsports.com) to sell its fantasy sports products, which incorporate the names, statistics, and biographical data of major league baseball players.

As the case evolved, the key issues became (1) whether the players have a right of publicity in their names and playing records as used in CBC’s fantasy games, and, if the players have such a right, whether CBC is violating the players’ claimed right of publicity; and (2) if the players have a right of publicity that has been violated by CBC, whether the First Amendment applies and, if so, whether it takes precedence over the players’ claimed right of publicity.

To determine the elements of the right of publicity, the district court cited the Missouri Supreme Court in Doe v. TCI Cablevision (Mo. 2003). In the TCI case, the Missouri Supreme Court held that ”the elements of a right of publicity action include: (1) That defendant used plaintiff’s name as a symbol of his identity (2) without consent (3) and with the intent to obtain a commercial advantage.” The district court held that CBC ” … is not violating the players’ claimed right of publicity.” The district court held that the First Amendment takes precedence over the right of publicity.

Strike Two

MLB stepped up to the plate in the 8th U.S. Circuit Court of Appeals (CA8, 10/16/2007). In examining the right of publicity issue, the court of appeals disagreed with the district court: ”Because we think that it is clear that CBC uses baseball players’ identities in its fantasy baseball products for purposes of profit, we believe that their identities are being used for commercial advantage and that the players therefore offered sufficient evidence to make out a cause of action for violation of their rights of publicity under Missouri law.”

However, the court of appeals agreed with the district court that CBC’s First Amendment rights supersede the players’ rights of publicity. The 8th Circuit noted that, although this ” … dispute is between private parties, the state action necessary for first amendment protections exists because the right-of-publicity claim exists only insofar as the courts enforce state-created obligations that were ‘never explicitly assumed’ by CBC.” The U.S. Supreme Court directed in Zacchini that ” … state law rights of publicity must be balanced against first amendment considerations.” The appeals court concluded … that the former must give way to the latter.”

The 8th Circuit found persuasive a California decision, Gionfriddo v. Major League Baseball (Cal. Ct. App. 2001), in which MLB was, in effect, in CBC’s shoes seeking to protect MLB’s First Amendment rights, and defending MLB’s use of players’ names, likenesses, and information against the players’ asserted rights of publicity.

The Gionfriddo court stated that ”Major league baseball is followed by millions of people across this country on a daily basis … The public has an enduring fascination in the records set by former players and in memorable moments from previous games … The records and statistics remain of interest to the public because they provide context that allows fans to better appreciate (or deprecate) today’s performances.”

Also, the ”recitation and discussion of factual data concerning the athletic performance of [players on MLB’s website] command a substantial public interest, and, therefore, is a form of expression due substantial constitutional protection.”

Turning its attention to CBC’s use of the Internet, the 8th Circuit states: ”We also find no merit in the argument that CBC’s use … is not speech at all. We have held that ‘the pictures, graphic design, concept art, sounds, music, stories, and narrative present in video games’ is speech entitled to first amendment protection. See Interactive Digital Software Ass’n v. St. Louis County, Mo. … (8th Cir. 2003).

Similarly, here CBC uses the ‘names, nicknames, likenesses, signatures, pictures, playing records, and/or biographical data of each player’ in an interactive form in connection with its fantasy baseball products. This use is no less expressive than the use that was at issue in Interactive Digital.”

Strike Three

On June 2, 2008, the U.S. Supreme Court denied MLB’s petition for certiorari.

Game over.

The bottom line: the right of publicity is a viable legal right, but must be interpreted through the lens of the First Amendment.

© 2008 Alan S. Wernick

Financial Services: Examination priorities to protect investors

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

FINRA (the Financial Industry Regulatory Authority) has issued its publication, ”Improving Examination Results” to highlight ”examination priorities.” Many of the examination priorities relate to investor protection issues, including guidance regarding the recommendation of, and required risk disclosures for, purchases of auction rate securities. Let’s examine three of the more important investor protection issues.

1. Senior Issues. FINRA’s efforts to educate investors, advisers, and financial services firms have focused on sales seminars. Specifically, FINRA is concerned about ‘’sales pitches masquerading as educational seminars, misleading advertising and sales materials, poor supervision, product suitability and outright fraud.” FINRA references its ”cogent summary” of its concerns in Regulatory Notice 07-43. In its examinations of firms, the regulator will ”focus on sales to seniors and other investors approaching requirement.”

Among other things, FINRA will scrutinize advertisements and sales material to ensure that they are fair and accurate, will be suspicious of ‘’self-conferred designations or other unwarranted claims of senior specialty,” and will ensure that investment recommendations are suitable, given current investment objectives and age.

2. Deferred Variable Annuities. Since May 5, 2008, FINRA has begun examining for compliance with the new provisions of Rule 2821, which the SEC approved over the strong objections of the financial services industry.

Firms now have responsibilities both in terms of the suitability and supervision of recommendations to purchase or exchange deferred variable annuities (which are life insurance annuity contracts whose value fluctuates over time, and whose income is delayed).

In terms of suitability of recommendations, financial advisers must take into consideration whether: (1) the customer will incur a surrender charge, be subject to a new surrender period, lose existing benefits (such as death, living, or other contractual benefits), be subject to increased fees or charges (such as mortality and expense fees, investment advisory fees, or charges for riders and similar product enhancements); (2) the customer will benefit from product enhancements and improvements; and (3) the customer’s account has had another deferred variable annuity exchange within the preceding 36 months.

Financial advisers not only must gather personal and financial information from the investor, but also must make reasonable efforts to determine the investor’s ”intended use of the deferred variable annuity.”

Finally, in the SEC’s release approving the changes to Rule 2821, a footnote highlights an additional, ongoing duty: ”The general suitability obligation requires a [financial services firm] to consider its customer’s ability to understand the security being recommended, including changes in the customer’s ability to understand, monitor, and make further decisions regarding securities over time.”

3. Sales of New or Non-Conventional Products, Including Auction Rate Securities. FINRA is concerned with the features and characteristics of new or non-conventional products.

Among other things, firms must ”conduct adequate due diligence to understand the features of a product,” and firms should not recommend a product to investors if their advisers do not understand it. There must be ”a balanced disclosure of the risks and potential awards associated with the particular product.”

In particular, FINRA is focused on the suitability of recommendations to purchase hedge funds, CMOs (collateralized mortgage obligations) and CDOs (collateralized debt obligations), REITs, auction rate securities, and other products. FINRA emphasizes, ”Many of these products are not suitable for all customers.”

Auction rate securities recently have been in focus, as investors have come to learn that these investments are neither safe nor liquid.

FINRA references MSRB Notice 2008-09, which the Municipal Securities Rulemaking Board published on February 19, 2008. The MSRB notice observes that auction rate securities ”historically have been sold to investors seeking short-term, liquid investments.”

It highlights MSRB’s rules on disclosure and suitability, specifically noting that, ”The duty to disclose material facts to a customer in an auction rate securities transaction includes the duty to give a complete description of the security, including features of the auction process that likely would be considered significant by a reasonable investor.”

The MSRB notice provides several examples, including: the duration of the interest rate reset period, information on how the ”all hold” and maximum rates are determined, and that an auction rate security recently was subject to a failed auction. Likewise, in terms of suitability of recommendations to purchase auction rate securities, the MSRB notice requires firms and their advisers to consider the investor’s need for a liquid investment.

These three examination priorities give a sense of FINRA’s agenda as it seeks to protect investors. Given the state of the markets — a host of senior issues, sales abuses with deferred variable annuities, and challenging new or non-conventional products — no doubt FINRA will be quite busy enforcing its examination priorities for years to come.

Opening Statement: A brilliant adaptation

By Julian Frazin
Michael Best & Friedrich • Entertainment Critic

May it please the court…

To paraphrase a Gershwin lyric from ”Porgy & Bess”: ”Summertime and the cost of living ain’t easy. Prices are jumpin’ and the gas costs are high—” I suppose our lame-duck president might suggest, as he always does in times of crisis, that we should ignore it all and go out and spend — spend — spend.

Well, this time I might agree with him but only if you plan on spending your deflated dollars on entertainment. As every Londoner can tell you, there was nothing to relieve the pressure and fears during the blitz of World War II than a night at a good show in the West End.

But a word of caution. With the price of gas approaching $5 a gallon, it might be best to keep your travels close to home. Fortunately, Chicago and its close-in vacation spots have a lot of entertainment to go around.

There was, for example, the short but sweet, highly entertaining run of ”Avenue Q” at the Cadillac Palace, with its adorable ”Sesame-type” Muppets singing the outrageous, but hilarious, ”Everyone’s a Little Bit Racist,” ”It Sucks to Be Me,” and ”The Internet is for Porn,” with a touring company cast every bit as good as that in the original Broadway production.

Then there is ”Musical Mondays at Drury Lane,” at the Drury Lane Theatre Water Tower Place, which recently featured a showcase of the ”best of Chicago cabaret” in a tribute to Rosemary Clooney, ”Everything’s Coming Up Rosie,” with Bob Moreen, musical director, and Suzanne Petri and Bradford Thacker hosting local stars, including Paul Marinaro, Nan Mason, Heather Moran, and Kat Taylor.

But the musical I would definitely recommend is ”The Hunchback of Notre Dame” currently at the Bailiwick Theatre, 1229 W. Belmont St., based on Victor Hugo’s classic about Quasimodo, the deformed bell-ringer of Notre Dame Cathedral, and his tragic love for the gypsy dancing girl, Esmeralda. Set in the Paris of 1462, the well-known tale has been brilliantly adapted by rock legend, Dennis De Young, who has written the book, music, and lyrics.

This is a ”no-frills” production with few props or elegant scenery, but you would never know from the skillful manner in which Director David Zak dramatically moves the characters back-and-forth across the stage, up to a second level, up and down the steps, through the aisles, and up to the balcony where Quasimodo finds comfort in the company of his ”friends” the bells.

George Andrew Wolff, who made us laugh in Chicago’s production of ”The 25th Annual Putnam County Spelling Bee” as the ridiculous contestant who had to spell with his foot, does a dramatic about-face, with a powerful voice and a heart-wrenching performance as Quasimodo. Dana Tretta, as the saucy, spirited Esmeralda, gives another stunning performance, following her recent success as Sally Bowles in ”Cabaret.” Jeremy Rill portrays the tragic, beleaguered priest, Frollo, who cannot resist the temptation of the gypsy girl.

All of the voices are wonderful and seem to have been selected in ”casting heaven,” including those of the supporting cast. There’s James Rank as the handsome, but stiff-necked Captain Phoebus; Michael Harchar as his despicable military aide; Jeffrey A. Ward as the King of the Gypsies; and Liz Pazik as Mahiette, the gypsy woman who befriends Esmeralda and narrates both the prologue and epilogue.

However, the real star of this production has to be the beautiful and lyrical music of Dennis De Young. De Young has managed to capture all the brilliance and excitement of his Styx rock hits ”Lady,” ”Come Sail Away,” and ”Mr. Roboto,” and blended it into 25 musical numbers with a modern beat and a classic Broadway sound.

Beginning with the poignant ”Who Will Love This Child?” sung by the priest Frollo when the deformed infant is left at the doorstep of his church, through ”In My Silence,” where Quasimodo cries out in despair because of his inability to communicate, ”While There’s Still Time,” a love song on the eve of battle, to the grand love ballad and signature piece, ”With Every Heart Beat,” each song is lavishly arranged and backed by a small band of incomparable electronic musicians led by a very animated and engaging Keith Dworkin on keyboard. Any one of these songs could easily be released as a single recording and move to the top of the charts.

I was particularly impressed by the haunting and compelling ”This I Pray,” which is sung by Esmeralda, who has been imprisoned as a result of prejudice and is awaiting her execution: ”There will come a time when we won’t live in fear any more, There’ll be no talk of hatred. No prejudice to tear us apart. No sadness or pain in our heart. Only peace. Only joy. Only love will remain to keep us and guide us each day, This I pray.”

Thank you, Dennis. Sail on!

I rest my case.

Verdict:
Hunchback of Notre Dame — Four Gavels

Counsel’s Table: A duality of taste

By Russell B. Selman
Katten Muchin Rosenman • Restaurant Critic

It always seems odd to me to vacation away from Chicago just when Chicago’s weather suddenly improves each summer. The glorious summer has such power as to induce amnesia, and I quickly forget what I just endured.

Not all Chicago residents agree with me: Some very wealthy friends recently returned from a restorative trip to North Korea. When I wryly questioned whether they had an unnatural fondness for concrete they simply asked whether I, too, had recently visited Pyongyang. Err …, ”I have not,” I responded, and I suppose when it’s time for me to vacation in North Korea it means that I have visited every other place on earth. And, that I am so old that one-piece jump suits and permed gray hair are a comfortable choice.

No, for me, I stay in Chicago in the summer, but I look for places in-town that have a languid and somewhat dissipated attitude. While I know that such description can apply to several of Chicago’s most venerated mid-sized firms currently suckling merger partners, I mean places to hang-out over leisurely lunches. The kinds of places where you can show-up alone and they still bring over the full-bottle wine menu never thinking you prefer wine-by-the glass.

Aigre Doux is that sort of place. While we hours-obsessed lawyers build our time sheet sand castles all year summer is the time to recognize that our clients really don’t love us, so you might as well have a drink and kick off your shoes. For me, such is the essence of relaxation, especially since Aigre Doux’s floors are a cool stone.

The mixture of my love/hate summer attitude is the same as Aigre Doux’s name, which refers to a duality of sweet/sour taste. Just when you think you have pegged a flavor, it turns inside out and metamorphoses. Not to the opposite, the flavor just becomes something else.

So the oxtail raviolis are round, but individually served in square little plates for contrast. The flavor is first sweet, than gets more savory and complex. I notice a few saucy spots have appeared on my shirt and I grin. Another ”I’ll send this shirt to the laundry” choice is the mussels in a coconut curry, which are fragrant and plump. Again, the mussels make my shirt a virtual photo log of the feast I’ve eaten.

But so what, when the food is good that’s my attitude and that’s my attitude at Aigre Doux.

Entrees are less accident-prone, but still juicy. The sweet duck uses currants to bring out a fuller flavor by restricting the sweetness and keeping the flavor within the bounds of propriety. A simple pulled-pork sandwich is less successful, because the chef has again and again sweetened the meat to candied consistency and doubled-down by invoking it all in a buttery bun. While summer is the time for candy-apples, I looked for, in vain, a spot of sour rectitude.

Keeping the sweet/sour balance is not the end-all of Aigre Doux. Some dishes are just good, like the rack of lamb, with truffled grits, which prove that with enough truffles even Styrofoam can climb to the top of the food pyramid. I also favor the black cod in miso, which establishes a food fantasy that this cod lived its very happy life in a strange Japanese tributary of miso waters, which added a natural shroud of sweetness.

Aigre Doux is able to bring off this imaginary quality. With all of this intense cooking interest, Aigre Doux is more of a European sophisticated-type vacation not a quick week’s trip to Hawaii where you might go for some sun and hanging-out. Aigre Doux is a nice place for a lawyer on the lam without leaving Chicago.

Pleadings:
Aigre Doux
230 W. Kinzie St.
312-329-9400

Court costs:
Appetizers $8 - $12 Entrees $12 - $35

Verdict:
Three Gavels

Closing Argument: The nature of the beast

By Todd A. Smith

For virtually all of my career the civil justice system has been under attack. The ultimate goal is to diminish and even eliminate the jury decision. This is desired so that the responsibility for wrongdoing can be controlled. And not controlled by judges and juries, but by those who are regularly on the wrongdoer side of the equation.

Of course, this goes to the heart of our separation from England. We wanted nothing to do with a justice system controlled by the powerful. One of the things we wanted was to have independent decisions made by regular citizens. This is why the relentless attacks and the methods used are so troubling.

Attacks on civil justice rights, the independence of the judiciary, and the legal profession obtain quick acceptance among broader audiences simply by the use of buzzwords words and phrases that have been focus-grouped, strategized, and promoted through well-funded public relations efforts.

”Frivolous,” ”Judicial Hellhole,” ”lottery,” ”lawsuit abuse,” even ”trial lawyer,” with the appropriate sneer, have come to represent, for some, the civil justice system in America.

Of course, no one favors a ”frivolous” lawsuit. But billions have been spent to create the perception that most, if not all, lawsuits are frivolous. The most meritorious of cases, that virtually demand justice, seem not to escape the attacks and are clearly impacted.

Who is applying the pressure with seemingly limitless infusions of funds to think tanks, interest groups, and ”institutes”? At this point it is not so well-concealed. Behind misleading titles such as ”American Justice Partnership” (an amalgamation of industry front groups), the ”Illinois Civil Justice League” (the Illinois entry of similar groups), and the ”Institute for Legal Reform” (created and paid for by the U.S. Chamber of Commerce), lies a broad coalition of corporate interests, including the insurance industry, tobacco industry, pharmaceuticals, and more.

But, I suppose, one might say, ”How can you blame them?” If a corporation’s primary purpose is its bottom line, why shouldn’t it do all that it can to increase its revenue and limit its exposure to expense in this case, its responsibility for wrongdoing? It makes perfect economic sense. It’s in the nature of the beast.

And what they have discovered, along the way, is an added side benefit. Although the ultimate prize is the arbitrary cap on damages, the ”lawsuit abuse” campaign also affects elected officials, judges, and juries.

To become widely propagandized as a ”judicial hellhole” can’t feel good. Is it possible some judges are influenced by this effort? I suppose so. Judges are human after all. Perhaps that is what the proponents count on: that such insulting attacks on those who most deeply appreciate the importance of an objective judiciary will indeed bear fruit.

And, as to juries, you need to go no further than any courtroom during voir dire and listen as prospective jurors say there are too many frivolous lawsuits, or simply omit the word frivolous altogether. This suggests they may be inclined not to accept lawsuits, period. Regardless of merit. This is where the meritorious case is impacted. The well-funded campaign has jurors viewing with cynicism every case and their own civil justice rights.

Of course, the promise has always been that they are only after the meritless legal actions. Only the frivolous cases shall fall victim. But this proposition fails under the mildest scrutiny.

At the heart of the ”reforms,” again, are the arbitrary caps. A cap not on frivolous cases, but on meritorious cases, those most devastating to individuals and families. The contradiction is that such a damage limitation only becomes operative after a finding that one’s case has merit. And only after a determination by one’s fellow citizens that significant compensation is appropriate. Even the beast knows this, but it can’t avoid its very nature.

Another side benefit of the assault is the rediscovery of the lawyer as a convenient target in pursuit of the ultimate prize. Of course, lawyers have historically been useful targets, so there’s nothing new there. Here, however, it represents a false target. It is presented as a debate between corporations and trial lawyers.

Of course, this erroneous view is promoted. It’s much easier to vilify the lawyer shooting the messenger who stands to protect these constitutional rights - and make that the target, rather than to focus on the real parties in interest those harmed by the wrongdoer.

Even some objective political figures tend to initially lean toward this view, failing to appreciate that the ultimate losers to corporate power and overreach are not the lawyers, but those the lawyers represent regular citizens. All of us. It is our rights that are diminished and, in many instances, effectively eliminated.

Today, political candidates address the need for change, moving away from gridlock, and speak positively of compromise. Others speak of a candidate’s ability to reach across the aisle and come to agreement. Perhaps this has its place under certain circumstances. Here it represents a false premise. You don’t compromise basic rights. The right to a jury determination of the harm done and extent of it is described as inviolate. You don’t (and can’t constitutionally) ”reach across the aisle” and place an arbitrary legislative compromise on that which is to remain pure.

Ethics: Advance waivers of future conflicts

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

Rule 1.7 states that a lawyer shall not represent a client if the representation of that client will be directly adverse to another client, or if the representation of that client may be materially limited by the lawyer’s responsibilities to another client, or to a third person, or to the lawyer’s own interests.

The exception to the rule allows the representation of clients with actual or potential conflicts of interest when ”the lawyer reasonably believes the representation will not adversely affect the relationship with the other client and each client consents after disclosure.” The client consent is usually referred to as a waiver of the conflict.

Is it possible to obtain an advance waiver of future conflicts of interest? The answer is a qualified yes. Typically, the effectiveness of the waiver depends on the sufficiency of the disclosure, so that the waiver or consent is ”informed.”

Generally speaking, a waiver is a knowing relinquishment of a right. Thus, a client’s simple consent without adequate disclosure of the nature of the conflict may not be effective. Westinghouse v. Gulf Oil, 588 F.2d 221, 229 note 9 (7th Cir. 1978).

ABA Ethics Opinion 05-436 (May 11, 2005) states that an ”open-ended” advance waiver may be effective when the person giving it is sophisticated or is represented by other counsel on the waiver issue.

Even with sophisticated clients, however, the extent of the disclosure may make the waiver ineffective. In a 2006 case, McKesson Information Systems, Inc. v. Duane Morris, LLP, Fulton County, Ga., Super. Court Civ. No. 2006 CV 121110, the court found that a future waiver was invalid because it was not a knowing waiver that identified the specific adverse clients and details of the adverse representation.

Two months after the firm began its representation of two McKesson subsidiaries in a bankruptcy matter in Pennsylvania, it agreed to represent two clients against a third subsidiary of McKesson in Georgia. The engagement agreement with McKesson included a waiver of the firm’s representation of parties with interests adverse to McKesson and waived any actual or potential conflict of interest as long as those other engagements were not substantially related to the firm’s services to McKesson.

The court found that the future waiver was invalid because it did not identify the specific adverse clients and the details of the adverse representation, and did not refer to any particular parties or circumstances under which adverse representation would be undertaken.

It concluded that the McKesson companies could not have reasonably anticipated that the law firm would actually consider representing clients who would attack McKesson products and accuse it of fraudulent conduct, as the plaintiffs alleged in the Georgia case.

A similar analysis can be applied to the representation of a current client in a matter adverse to a former client. In Hasco, Inc. v. Roche, 299 Ill.App.3d 118, 700 N.E.2d 768 (Ill.App. 1st Dist., 1998), a law firm represented a limited partnership, Arauca, in a dispute with First Options of Chicago, Inc. (FOC). Later, it underIllegal ‘X-value’ for character STYLs voided here took to represent two subordinate lenders to Arauca in their claims against FOC in West Virginia circuit court.

The subordinate lenders signed a retainer agreement that contained a conflict waiver, which provided that the clients have a claim against Arauca, that the firm represents Arauca in claims against FOC, and that there is a conflict between the clients and Arauca. The clients ”waive[d] any conflict of interest associated with the representation by [the firm] of Arauca and the representation of Clients by [the firm] with respect to their claims against FOC.”

That matter resulted in a settlement, but FOC later initiated a NASD arbitration proceeding against Arauca and the subordinate lenders in a dispute over the settlement agreement. The firm appeared for Arauca and filed a cross-claim on its behalf against the subordinate lenders.

The subordinate lenders moved to disqualify the firm. The firm relied on the waiver to oppose the motion.

The court disqualified the law firm because its representation of Arauca against its former clients, the subordinate lenders, in a matter that was substantially related to the matter in which it formerly represented the subordinate lenders violated Rule 1.9 of the Rules of Professional Conduct.

The court found that the waiver signed by the subordinate lenders was limited to the West Virginia lawsuit and did not extend to the NASD arbitration dispute.

While the waiver referred to claims by the subordinated lenders ”against FOC” and ”against Arauca,” it did not address the firm’s representation of Arauca regarding Arauca and FOC claims against the subordinated lenders. Although the firm asserted that the purpose of the waiver ”was to waive all future conflicts of any nature,” the court found that such a broad intention was not contained in the language of the waiver.

When seeking a client’s waiver of a future conflict, try to be as detailed as possible in disclosing the nature of the conflict being waived and the parties involved in any such conflicts.

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