Pro Bono: Balancing pro bono needs and wants

By Margaret C. Benson
Chicago Volunteer Legal Services Foundation

Balance. It’s a trendy word, if not a trendy need. These days there is a lot of talk about finding your balance — a balanced diet, a balanced lifestyle, a balanced spirit.

Lawyers talk about the work-life balance, worrying that it’s too often tipped in favor of work.

There are a lot of articles claiming to help attorneys figure out how to generate billable hours while not losing themselves in the process. Work is important, but so is family, exercise, eating right, eight hours of sleep, and, of course, pro bono.

But this article isn’t about that kind of balance.

Lawyers are also familiar with the legal concept of balance. There’s the balance between the rights of an accused against the rights of the victim and the right of society to be safe.

There’s balancing the equities — a concept we first hear about in law school and spend our careers struggling to understand.

But this article isn’t about that kind of balance either.

This article is about the need for balance
in the pro bono world.

The need for balance between the pro bono that attorneys want to do against what legal aid programs need on behalf of their clients. This type of balance is rarely addressed. But it needs to be.

Pro bono is popular these days. There’s no doubt about it. The American Lawyer helped bring it to the foreground of the legal world when it started annually measuring pro bono hours produced by the big firms. Bar associations recommend minimum pro bono hours. Illinois joined a trend when it imposed its pro bono reporting requirement. Pro bono is in and a lot of lawyers want to do it.

But what can they do?

Not every attorney is a litigator. Some non-litigators are willing to go to court, but many choose transactional work because they do not want to go to court, ever.

Other attorneys chose their line of work because they have no affinity or, let’s be honest, ability to work with clients. Some attorneys just aren’t into people.

And what about the pro bono programs? Some handle individual cases, some do impact litigation and others help with transactional matters. The 2005 Illinois Legal Needs Study established that many low-income people need help with housing, family, and consumer issues. It also proved that pro bono is an essential part of the legal services delivery system. But that balance issue rears its ugly head.

Ask pro bono programs and many will tell you that divorce and related family law issues like custody, visitation, child support, and domestic violence overwhelm them. What do a lot of attorneys think about this type of legal work? Ick.

Mortgage foreclosures and related real property cases are inundating the courts and legal aid programs.

Large law firms are conflicted out of these cases because they represent the banks and lending institutions. Even if they don’t, they hope to in the future. The bottom line is they won’t take a case against financial institutions that may, someday, pay them the big bucks.

Solo and small-firm attorneys can’t get involved in complex litigation that lasts years, especially when they have to go up against big firms who paper them to death.

Ask bankruptcy judges about need. Yes, people need help filing simple Chapter 7 cases, but a lot of bankruptcy attorneys will handle those pro bono.

The problem comes when a client files pro se and messes up that simple case and finds himself defending an adversarial complaint filed by a creditor. Solo and small-firm bankruptcy attorneys won’t or can’t take bankruptcy litigation. Big-firm bankruptcy attorneys represent creditors and are conflicted out. So, low-income clients who desperately need an attorney to represent them in pending litigation have nowhere to turn.

In addition to her blindfold, our American symbol of justice holds scales because justice must be balanced. Pro bono must be balanced. Legal aid programs struggle to accommodate the needs of attorneys, law firms, and corporate partners who want to do pro bono but don’t want difficult, time-consuming cases or less than saintly clients.

Legal aid programs don’t talk about this problem in public because they don’t want to look a gift horse in the mouth. But then again, sometimes that old nag is really a Trojan horse - not a gift but a burden.

Attorneys: think about balance the next time you complain because you haven’t gotten a decent pro bono case in some time.

Law firms and corporate law departments: think about balance the next time you look for a discrete pro bono project that won’t
cost your staff too much time. Think about expanding what you are willing to do. Take some cases or clients outside of your comfort zone. Help balance those scales of justice and prevent them from tilting so much toward us instead of our clients.

Following professional rules — and a moral compass

By Maria Kantzavelos

By the very nature of their practice, criminal defense attorneys can come to harbor plenty of secrets.

Some of those secrets can be horrifying, like a client’s detailed account of a gruesome murder. Others are plainly sad, like the revelation that the young daughter of a client had been sexually abused. Many of them are mundane, simply bits of information about a client, like his drug or alcohol use, or his broken family situation.

“We have billions of secrets,” said William P. Murphy, a criminal defense attorney for 40 years. “I’ve probably heard so many of them, I forget them.”

But there can be the sort of secret too difficult to forget, one that could put a lawyer in a vexing position.

It’s one of the age-old problems that law professors who teach ethics include in their classes: What happens if you, as an individual, think something should be done, but the rules of the profession would keep you bound to silence?

Take the 26-year-old secret revealed recently in a Cook County courtroom with the testimony of veteran criminal defense attorneys Dale Coventry and Jamie Kunz, whose story was reported in a Jan. 19 Chicago Tribune article.

The retired assistant Cook County public defenders said they were bound by attorney-client privilege to hold onto their client’s admission that he was the man who fatally shot a security guard during a Jan. 11, 1982, robbery at a McDonald’s restaurant on the South Side, not another man, Alton Logan, who is still serving a life sentence for the crime.

Coventry and Kunz were representing Andrew Wilson on capital charges in the Feb. 9, 1982, murders of two Chicago police officers. The lawyers said Wilson gave permission for them to reveal his admission in the McDonald’s case only after his death. Wilson, who was sentenced to life in prison for the police murders, died last November.

That is why, the lawyers said, they could reveal the secret, which they recorded in a notarized affidavit, sealed in an envelope and kept locked in a metal box for a quarter of a century while Logan, now 54, remained in prison for a crime they believed their client committed.

“It’s a classic, legal ethics book hypothetical, and here it is in real life,” said Steven Lubet, a legal ethics expert and the director of the program on advocacy and professionalism at Northwestern University School of Law. “Lawyers are often called upon to keep secrets they would rather not keep. This, of course, is one of the most wrenching of those circumstances.”

The lawyers’ recent testimony and the contents of the affidavit surfaced as part of Logan’s request for a new trial based on newly discovered evidence in his post-conviction petition.

In a proceeding set for March 10 before Criminal Court Judge James M. Schreier, Assistant Cook County public defender Harold Winston, who is representing Logan, said he will file a memorandum of law giving reasons why the 1982 affidavit and the lawyers’ testimony about it should be admissible as evidence.

Moral imperatives

The story involving the retired public defenders raises the general ethics issue of how lawyers can find themselves in a quandary, forced to reconcile competing personal and professional principles.

“You have two moral imperatives here,” said John E. Corkery, dean of The John Marshall Law School and a former chairman of the Illinois State Bar Association’s Standing Committee on Professional Conduct. “One is to maintain confidentiality, which you and the law told this person you would give them. The other is: Something bad will happen — an innocent person will go to jail.

“There’s no standard answer for all these conflicts,” Corkery said. “The answer is, you’re going to have to pick one side or the other. And one side is probably going to nag at you for a long time.”

Kunz said he viewed his professional obligation as a moral obligation.

“I can’t extricate my legal obligations — my professional obligations — from my morals,” Kunz said recently.

“Andrew Wilson was my client. How could I possibly do anything with the information without somehow jeopardizing Andrew Wilson’s life?” Kunz said.”It wasn’t comfortable, but it wasn’t ambiguous. There was no question where my moral loyalty had to lie. His life was in my hands.”

Keeping such a secret, Kunz said, “certainly hasn’t been easy, but it’s nothing like what life has been like for Alton Logan in the last 26 years.”

“As a human being I’m disturbed by the prospect of an innocent person in jail, the way any other citizen is,” Kunz said. “But as an attorney,” he said, his loyalty is “clear and exclusive.”

“It’s to my client,” he said. “It’s not a question of protecting my license, it’s a question of protecting my client.”

Still, Coventry and Kunz said they would have come forward if Logan, who was facing capital charges, had been sentenced to death.

“We were going to do something,” Coventry said. “We had a way to get to Governor [James R.] Thompson. We were going to do that. Whether it would’ve made an impact we don’t know. We would’ve done something to try to prevent the death penalty.”

And if there wasn’t the possibility that their own client would face the death penalty, “I would’ve been able to talk him into revealing this information himself,” Coventry said. “I would’ve had him come forward himself, but I wasn’t going to take the risk when he was facing the death penalty.”

The confidentiality obligation under the attorney-client privilege is far-reaching. There are a few exceptions, like the one spelled out in Rule 1.6 (b) of the Illinois Rules of Professional Conduct: “A lawyer shall reveal information about a client to the extent it appears necessary to prevent the client from committing an act that would result in death or serious bodily harm.”

Ethics: Communicating with another ‘party’

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

Rule 4.2 of the Rules of Professional Conduct states:

“During the course of representing a client a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by another lawyer in that matter unless the first lawyer has obtained the prior consent of the lawyer representing such other party or as may otherwise by authorized by law.”

In our July 2007 column, we discussed what it meant to be represented in a “matter” for purposes of direct communication with a party under that rule.

In this column, we address other issues raised by Rule 4.2.

One issue is whether Rule 4.2 applies only to those who are “parties” to litigation or to a transaction. This was addressed by the Review Board in In re Silverman, 04 SH 120, M.R. 21413 (2007), in which an attorney representing a criminal defendant communicated directly with a witness he knew was represented by counsel.

In finding that the attorney violated Rule 4.2, the Review Board interpreted the word “party” to mean any “person” who was represented by counsel in a matter.

The board based its interpretation, in part, on the fact that corresponding ABA Model Rule 4.2, which had originally used the word “parties,” was amended in 1995 to use the word “persons,” and that the commentary to Model Rule 4.2 states that the rule “applies to communications with any person who is represented by counsel concerning the matter to which the communication relates.”

The Illinois Supreme Court has relied on ABA commentary and interpretation of the ABA Model Rules when interpreting the Illinois Rules of Professional Conduct. Schwartz v. Cortelloni, 177 Ill.2d 166 (1997).

The Review Board recognized that the purpose of the rule, as stated in the commentary to Model Rule 4.2, is “protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship and the uncounselled disclosure of information relating to the representation.”

The board noted that other jurisdictions have similarly concluded that the protections of Rule 4.2 extend to represented persons even if they are not formally designated parties in a court proceeding or a transaction. United States v. Jamil, 546 F.Supp. 646 (E.D. N.Y. 1982); In re Box, 715 N.W.2d 758 (Iowa 2006); Monceret v. Board of Professional Responsibility, 29 S.W.3d 455 (Tenn. 2000); In re Illuzzi, 616 A.2d 233 (Vt. 1992).

The board acknowledged that at least one jurisdiction has held that an attorney for a criminal defendant could interview a witness who was a potential co-defendant because they were not both parties in the same matter. Grievance Comm. v. Simels, 48 F.3d 640 (2d Cir. 1995).

The board’s holding reflects the majority view regarding this issue.

Another issue under Rule 4.2 is whether an attorney who is a party to a case and is not represented by counsel can communicate directly with the adverse party.

This issue was addressed by the Illinois Supreme Court in In re Segall, 117 Ill.2d 1, 509 N.E.2d 988 (1987).

In Segal, an attorney sent letters directly to two credit card companies to which he was indebted offering to settle the indebtedness for the amounts represented by checks enclosed with the letters.

The attorney was unrepresented in those matters, but he was aware that the credit card companies were represented by counsel.

The Supreme Court rejected the attorney’s argument that those contacts were made on his own behalf as a litigant and thus were not made during the course of his representation of a client, holding that an attorney who is himself a party to the litigation represents himself when he contacts an opposing party.

The court concluded that an attorney who is himself a litigant may be disciplined under Rule 7-104(a)(1) (the substantially similar predecessor to current Rule 4.2) when he directly contacts an opposing party without permission from that party’s counsel.

A third issue is whether a lawyer can send a communication to a represented adverse party as long as the lawyer simultaneously sends the communication to that party’s attorney.

The Chicago Bar Association Committee on Professional Responsibility answered this question in the negative, in Ethics Opinion 07-08-14, which states that, absent consent by opposing counsel, Rule 4.2 does not authorize an attorney to communicate directly with an adverse party or its employees even when the communication is sent simultaneously to that party’s lawyer. Ethics opinions such as these are advisory, not binding legal precedent.

These authorities demonstrate that the safest approach to Rule 4.2 may be to apply it expansively, rather than trying to avoid its spirit by interpreting it narrowly.

Opening Statement: Ghosts and guilt in Dublin

By Julian Frazin
Michael Best & Friedrich • Entertainment Critic

May it please the court …

The nicely appointed, intimate 160-seat Hoover-Leppen Theatre, in the new Center on Halsted, a lesbian-gay-bisexual-transgender community facility at 3656 N. Halsted, was the perfect venue for the recent About Face production of Douglas Carter Beane’s contemporary comedy, “The Little Dog Laughed.”

Directed by co-founder and artistic director, Eric Rosen, the play features Mary Beth Fisher as Diane, the ambitious, wisecracking lesbian agent of Mitchell (Lea Coco) a handsome “boy next door” movie star - outwardly straight but secretly gay - who is on the brink of a major career breakthrough if he can keep his sexual preference private.

The situation is complicated when, to Diane’s chagrin, her client has an affair with Alec (Levi Holloway), a bisexual male prostitute who, despite being in a longtime relationship with Ellen (Heather Prete), his flighty and pregnant girlfriend, is convinced he wants to spend his life in Hollywood with Mitchell.

Ultimately, the shrewd Diane, who has a number of hilarious, acid-tongued, narrative monologues, comes up with a bizarre solution, which satisfies everyone.

The little dog laughed to see such sport … and so will you!

After directing the recent Broadway production, Goodman Theatre’s artistic director, Robert Falls, has returned home with “Shining City,” a brilliant, witty, and thought-provoking work by the outstanding young Irish playwright, Conor McPherson.

Set in present-day Dublin, at the home office of Ian (Jay Whittaker), a priest-turned-therapist, this is a tale of ghosts, guilt, and transference that will draw you in, and surprise you at its conclusion.

John Judd plays John, a middle-aged widower who has come seeking help to deal with recurring visions of his wife’s ghost following her violent accidental death. Ian, in turn, has troubles of his own, including coping with his pregnant fiancee (Nicole Wiesner) and, hesitantly, exploring his own sexuality with Laurence (Keith Gallagher).

In perhaps the performance of the season, Judd’s portrayal of an ordinary bloke earnestly looking for life’s meaning in the everyday conversation of a working stiff (”It’s hard to believe that this is it!”) is outstanding. Not only is it a tribute to the talents of the actor, but to the perceptive script, as well.

If you are a fan of boxing, you will never get closer to the real thing than the opening scene of Shattered Globe’s production of “Requiem for a Heavyweight,” at Victory Gardens Greenhouse, 2257 N. Lincoln.

The power and savagery of the ring have never been so accurately depicted than by the futile battle waged by the aging heavyweight, Mountain McClintock, as choreographed by Nick Sandys. Rod Serling’s classic originally starred Jack Palance as the badly beaten and scarred McClintock and Keenan Wynn as his distraught and debt-ridden manager, Maish, in the 1956 teleplay, and Anthony Quinn and Jackie Gleason in the 1962 motion picture.

The violence continues outside of the ring, as we learn that, after 14 years, the boxer is forced by the doctor to retire. Maish, who lost money on Mountain’s last fight by betting against his fighter, is now being physically threatened if he doesn’t come up with the cash to fulfill a contractual obligation. His only hope is to sell out his boxer to a wrestling promoter.

Meanwhile, the grotesquely disfigured Mountain looks for work with the help of a lovely young social worker who cares for him.

Director Lou Contey has gotten brilliant performances out of every member of this talented cast, which includes Sean Sullivan as McClintock, Bill Bannon as Maish, Brian McCartney as Army, the loyal and sympathetic cut-man, and Paula Stevens as Grace, the compassionate social worker. Even from Charlie the bartender (Don Blair), he is able to get a nod, a shrug, or a sigh, an expression that he has seen it all before.

Serling has painted a picture of men who, after living a life of failure and defeat, spend their waning years telling each other stories of when they “coulda been a contender.” Only Mountain emerges as a true champion, with a final victory as he sacrifices his pride to save his friend - showing that there can be a measure of love in this violent world.

I rest my case.

Final Verdict:

“The Little Dog Laughed”: 3 Gavels

“Shining City”: 4 Gavels

“Requiem for a Heavyweight”: 4 Gavels

3L and the City: Am I an ‘unfit character’?

By Maria Vasos
Chicago-Kent College of Law

It’s that time of the year again: diligent law students are racking their brains to compile their biographic data for the Illinois Board of Admissions to the Bar registrations.

The regular deadline to file for the July 2008 bar exam was Feb. 1, but the late deadline, at a heftier price tag, is April 1, and then it costs an arm and a leg until May 31, 2008.

The Character and Fitness Questionnaire is by far the most daunting task of all for prospective practitioners.

I painstakingly toiled over each question and filled out every supplemental form that was requested as a result of my answers, for fear that one error could prevent me from being admitted.

Hours, days, and, dare I say, weeks (OK, two), I spent searching for and filling in the endless amounts of background information. Now, at the end of it all, I fear that the board will find me to be of unfit character for the practice of law (because we all know what a good reputation lawyers have).

Looking at my application in the abstract, I appear to be a transient, Sin City lingerie pusher, with a complete disregard for the motor vehicle parking code. There are easy explanations for the entirety of this statement, but there is no room for explanations on the relevant portions of the application. Thus, I fear the worst.

I seem transient because the board asks the applicants to list all of the addresses they have had for the past 10 years or since they were 18, whichever is longer.

In the last 10 years, I have had seven addresses, not including a brief stint with a P.O. box.

I moved from my parents’ home to the college dorm, into a sorority house, and then into a few different apartments with a few different roommates before coming to the conclusion that living alone, at least right now, is the best situation for my own sanity.

I think that this is a completely normal activity, if not a rite of passage, for most 20-somethings right out of college. But I fear that the board will see me as being nomadic and a risky bet to be a stable officer of the court.

As far as “a Sin City lingerie pusher” goes, while spending the summer after my 1L year with my family in my hometown of Las Vegas doing an unpaid externship, I worked as a sales associate at a Victoria’s Secret in the mall to earn spending money.

While I had hoped to keep this off my legal resume and pertinent career history, the Character and Fitness application specifically requests a listing of all employment both legal and non-legal for the past 10 years.

My only hope is that there will not be too many prudes evaluating my application, because I can see the Ruth Bader Ginsburgs of the Illinois Board getting their overly tight hair-buns severely knotted over this one, perhaps finding my employment in the lingerie shop morally repugnant. I did not steal any bras or panties though. I was an honest lingerie dealer. That should count for something.

Finally, my accrual of parking tickets is just the result of a calculated cost-benefit analysis.

While at my undergraduate college, the cost for a student parking permit was $250 per semester. Street parking was free. However, there was city street cleaning scheduled for the right side of the road every Wednesday morning and for the left side of the road every Thursday morning.

So, you just had to make sure two days a week, on the night before, that your vehicle was parked on the proper side of the street or else you would wake-up to a $50 ticket the next day.

Using a simple cost-benefit analysis, I figured that as long as I did not forget to move my car to the correct side of the street more than five times each semester, it would be cheaper to just street-park and risk getting the tickets on days that I forgot.

Unfortunately, I am thinking in hindsight that a couple dozen parking tickets might cast a negative light on my overall law-abidingness.

In my defense, I did pay all of the parking tickets. I think.

At any rate, after sorting through my own dilemmas, I have some wisdom for law students who have yet to do their bar applications. Get started!

It’s never too early to start compiling the necessary information so that you have it at your fingertips when it comes time to fill out your forms.

You would be surprised at the amount of trivial information that you have to include, but that you have easily forgotten, i.e., your direct supervisors’ names and their contact information at all of your jobs for the past 10 years.

Also, you should complete your application as soon as the board says that you can. It takes a long time to finish and the application fees skyrocket the later you submit your materials, from $250 to $1,450, depending on when you submit everything.

You can find all of the official information and forms located at ibaby.org (which stands for Illinois Board of Admissions to the Bar and You).

Good luck!

Financial Services: New guidelines for hedge funds

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

The Managed Funds Association (MFA) has published new guidelines: “Sound Practices for Hedge Fund Managers.”

As the industry’s main trade group, the MFA seeks to raise “the standards across the board” — in all of the principal areas of hedge fund investing, management, operations, and compliance. Along those lines, the MFA has prepared a checklist for hedge fund managers to consider in developing a compliance manual. Let’s examine the more important aspects of that checklist.

The MFA divides its guidance into five categories: Applicability and General Provisions; Chief Compliance Officer; Elements of Policies and Procedures; Review and Updating of Policies; and Acknowledgement and Training.

In terms of Applicability and General Provisions, the MFA suggests that hedge fund managers identify covered personnel. In explaining which employees, officers, and directors are covered, the MFA notes that Rule 206-4(7) of the Investment Advisers Act includes all of them to the extent that they provide investment advice and are subject to the supervision of the investment adviser.

The MFA recommends that managers “set forth policies and procedures that are reasonably designed to prevent violations of such policies and procedures from occurring, and to detect and address violations that have occurred.”

In terms of the chief compliance officer, the MFA recommends appointing this person for “coordinating and supervising compliance with applicable laws and regulations, as well as the internal procedures adopted by the investment adviser.” This is required under the Investment Advisers Act for those hedge fund managers registered with the SEC.

Most of the MFA’s recommendations fall under the third category, Elements of Policies and Procedures.

The first recommendation is that managers detail their fiduciary duties. That means detailing that “the adviser must act solely in the best interests of its client and must make full and fair disclosure of all material facts” about the business and business practices. The MFA notes that all investment advisers (whether registered or unregistered with the SEC) are subject to the antifraud provisions of the Investment Advisers Act.

Second, the MFA recommends that managers adopt controls for the fair allocation of investment opportunities among funds and the maintenance of portfolios consistent with the funds’ objectives. An employee or committee should be responsible for enforcing policies and procedures relating to partial fills, de minimis reallocations, deviations from allocation policy, and allocations of “new issues.”

Likewise, hedge fund managers must fairly allocate aggregated trades among funds, and should establish procedures for when to aggregate trades, how to allocate aggregated trades, and how to review adherence to policy.

Third, the MFA recommends that managers adopt procedures that address various trading activities. These activities include proprietary trading by the manager, personal trading activities of supervised persons, and insider trading policies. Managers should establish “policies to direct that any trading by employees and affiliates will be conducted in a manner that is consistent with the requirements of the policies and in a manner consistent with the applicable fiduciary duties owed by the hedge fund manager.”

Fourth, hedge fund managers should “develop disclosure controls and procedures to ensure prompt and accurate disclosure to investors and any applicable regulators, including account statement disclosures.”

The MFA recommends establishing a committee or designating an employee responsible for reviewing required disclosures for accuracy and consistency, as well as for ensuring that they are updated and distributed to investors and regulators on a timely basis.

Along those lines, the MFA suggests that managers include processes to value holdings accurately (and to assess their fees based on those valuations).

The final important recommendation, under Elements of Policies and Procedures, is to safeguard client assets.

The MFA recommends that hedge fund managers develop procedures to protect such assets against conversion or inappropriate use by advisory personnel. Suggestions include limiting authority and access to client accounts to designated employees, requiring approval of the chief compliance officer for policy deviations, and monitoring the activity of employees with access to client accounts.

The last two categories — Review and Updating of Policies; and Acknowledgement and Training — are fairly intuitive, but some should be emphasized. Specifically, hedge fund managers must establish processes to continually assess whether their compliance policies and procedures remain adequate and effective in their implementation. The MFA recommends updating policies and procedures in the event of “significant changes to business or unforeseen market events.”

Hedge fund managers, lawyers counseling them, and investors all should benefit from these compliance manual suggestions and from the broader “sound practices” that the MFA recommends in its latest publication.

Social Scene

The John Marshall Law School Board of Trustees President Leonard Amari (left) and dean of the law school, John E. Corkery (right), present the honorary degree of Doctor of Laws to Philip H. Corboy (center), at the 184th commencement ceremonies of The John Marshall Law School.

Bell, Boyd & Lloyd attorneys Carol A. Cachey (center) and Carolyn A. Jayne greet author Mary Hutchings Reed of Winston & Strawn at a book signing the firm hosted to promote Reed’s new book, “Courting Kathleen Hannigan.”

Closing Argument: Civility is still relevant

By Judge Marvin E. Aspen
U.S. District Court
Northern District of Illinois

I was privileged to chair the 1992 7th Circuit Committee, which drafted model Standards for Professional Conduct (commonly referred to as “civility standards”). The courts, the American Bar Association and local bar associations, and government bodies throughout the nation have adopted these standards.

They set forth expectations of everyday professional behavior and are divided into four parts: (1) “Lawyers’ Duty to Other Counsel”; (2) “Lawyers’ Duties to the Court”; (3) “Court’s Duties to Lawyers”; and (4) “Judges’ Duties to Each Other.” The standards are aspirational, that is, a reaffirmation by judges and lawyers as to what constitutes professional conduct in our courtrooms.

The law firm landscape in many respects is unrecognizable from what it was in 1992. That being the case, it is fair to ask, what relevance do the standards have to litigation in 2008?

Technology has changed drastically since 1992. Voice mail, cell phones and fax machines were in their infancy. E-mail and BlackBerry usage had yet to become tools of the practice. Electronic filing, scanning, online legal research, and electronic discovery were all in the future.

In part due to increased accessibility, clients today are more demanding. Bottom-line mentality aimed at “winning at all costs” often exacerbates tensions in lawyer relationships.

The practice of law in recent years has become more a business than a calling or a profession. Firms now merge, implode, and shed non-productive partners in unprecedented numbers. Average law firm profitability has quadrupled, but average firm size has increased only 150 percent.

Lawyers talk more about pro bono, but do less of it. The average pro bono hours per lawyer decreased from 52 per year in 1993 to 39 per year in 2002. The percentage of lawyers who worked 20 or more pro bono hours per year decreased from 35 percent to 30 percent in that time.

On the positive side, the opening of the profession to greater numbers of women and minorities has been a positive force in breaking down some of the old-boy, macho approaches to hardball litigation.

Young law school graduates are drafted by law firms as foot soldiers in the litigation wars. Law school tuitions and debt in 1992 were a fraction of what they are today.

Perhaps relatedly, starting salaries at law firms have increased more than 100 percent, and young associates work staggering hours to justify those salaries. One-on-one law firm mentoring for these new lawyers, however, has been replaced by in-house and state-mandated continuing legal education.

Some of these eager lawyers emerge from law school properly idealistic about the litigation process, then suffer culture shock when they enter the courtroom. Other young lawyers may begin practicing law under the influence of television and motion pictures.

Practice almost always follows fiction. Young lawyers and students exposed to the machinations of TV programs and Hollywood films inaccurately sensationalizing trial practice may very well expect that they should act in some of the dramatic, abrasive ways portrayed. Certainly, some of today’s new clients, educated about our court systems by the media, expect them to do so.

The courts have undergone change as well. Only 1.2 percent of civil cases filed in the federal courts now go to trial. Trial lawyers are being replaced by faceless litigators in bigger and more impersonal court systems designed to process litigation, as opposed to trying cases.

ADR, including private mediation, is a booming business. Commercial contracts more often than not contain a private arbitration clause.

So what have these changes in the practice of law, our law firms, and our courts done to the relevance of the civility standards?

In my view, they have made it even more important for lawyers to maintain good professional relationships. Let me tell you why.

Some basics remain the same. We all start out with a good reputation. That reputation can be easily ruined by unprofessional conduct, such as a poorly worded or carelessly sent e-mail or an abrasive in-court performance.

A damaged reputation is extraordinarily difficult to rehabilitate. The way you will be treated by fellow attorneys and judges, and your effectiveness as a litigator, is directly impacted by your reputation in the legal community.

The decision a new lawyer makes early in a career as to how to act professionally will have as much of a long-term effect on success and happiness as any other professional decision.

Ultimately, there are no short cuts and no rationales for short-term gain that won’t prove costly in the long run for today’s lawyer who seeks to balance properly obligations to both the client and our justice system.

Shakespeare, a great admirer of the legal profession, notwithstanding the popular distortion of the context of his “let’s kill all the lawyers” line from “Henry VI,” writes in “The Taming of the Shrew”: “… and do as adversaries do in the law, strive mightily, but eat and drink as friends.”

Our continuing professional obligation is to pass down from one generation of lawyers to another this time-honored tradition of lawyers doing battle as adversaries but breaking bread as friends afterward.

Counsel’s Table: Attention to details at Takashi

By Russell B. Selman
Katten Muchin Rosenman • Restaurant Critic

In the summer of 1975, I had hit a wall when looking for a job in New York. Door after door had slammed in my face. So, jobless and despondent, I decided to put my liberal arts degree to work and determined it was time to become a Communist. I would take my due by violent means and correct the error of my unmet needs. I was not to be denied!

Upon returning home to suburbia that evening, I announced my personal discovery of the historical dialectic to my mother. She met my vast disappointment with her sweet gaze and served up a dinner of filet mignon that permanently ended my revolutionary march on the New York Stock Exchange. Literally, completely, and permanently. I became another casualty of how the sensory immediacy of a nice dinner overwhelms the inequities of society.

Oh — poor me, even years later I still love a nice, warm dinner and I have an utter commitment to my own well-being. And, while nothing very important is really changed by a good meal, a delicious surprise certainly makes life more pleasant. (And, in a pinch, can stop a person from a life as a Bolshevik.)

I relived this family secret recently when dining at Takashi. Located in a little Bucktown house, Takashi suggests a very luxe life emerging from the perfection of remarkably flavorful miniature foods. At Takashi, you must pay attention to the little details (and small portions) or you can miss the singular point; that being the sensual oneness of a perfectly constructed flavor.

I will admit that I was very impatient, at first, with the Takashi menu. Confronted by a half-dozen each of “cold small plates” and “hot small plates,” I was annoyed. Why must another restaurant do this egg-carton like array that resembles my sock drawer of mismatched wool - with which I never knew what to do (every year or so, I throw them all away)? Takashi has made me reconsider my disdain for the “small plate” dining world by focusing the flavor so that everything on the plate matches.

The choicest small plate option is the very elegant sliced yellowtail with monk fish liver. Simply a perfect flavor that uses a tosasu dressing to add a lemony echo to an immaculately clean yellowtail - slightly darkened and enriched by the monk fish. Even at a -20 wind chill, this flavor makes it seem possible to Chicago diners that there will be an early spring. On this dish alone, Takashi proves itself. Q.E.D.

Again and again, the plate sizes are as “small” as billed, but each seems like a jewel box holding very nice gifts. The scallops with gnocchi at first made me wonder if I could tell “which was which,” but left me satisfied. Both were very worthy complements, along with a sauce that married together the flavors, and even the texture - one went “pop,” the other “wept,” and each was delicious.

I did get a little tense when I moved on to the “large” plate selections. As with people, sometimes the cute kids become ugly, big adults, and I worried that the scaled-up plate size would prove a disappointment. Takashi conditions his small contextual presence well by intense focus on presentation. The “chicken in clay pot” is an intricate watch-like mechanism with mushrooms, eggplant, and okra parts all spinning in time. Tick, tock, and it’s wonderful.

It is only when Takashi prepares a single “thing” like a steak that the single “thing” trips up the presentation by being static and big. The steak has a wasabi crust and is good, but lacks the elegant movement of the other big plate choices. No harm, but not as interesting.

So, while I said above that nothing is really changed by a wonderful meal, I really do not believe my own cynicism. While my mom is now gone, her care is a continuing inspiration of better things to come and the lasting value of concern for the little details of life.

Pleadings:
Takashi
1952 N. Damen Ave., (773) 772-6170

Court costs:
Appetizers $10; entrees $20 - $30

Verdict:
4 Gavels

In the Woodpile: Sticks and stones

There once was a young man from Lyme
Who couldn’t get his limericks to rhyme
When asked “Why Not”
It was said that he thought
They probably were too long and badly structured and not at all very funny.
—Anonymous

By Shawn Wood
Seyfarth Shaw

If the pun is the lowest form of comedy, the limerick never rated much higher.

Sure, in its raunchiest form, the limerick has been favored among college rugby players and entertainers in Irish pubs, but if you’re sober and going for anything beyond a polite chuckle, the limerick generally involves more effort than it’s worth.

The Illinois Appellate Court for the Second District recently addressed what a limerick may be worth, in J. Maki Construction Co. v. Chicago Regional Council of Carpenters, 2008 WL 305043 (2d Dist. Feb. 1, 2008). There, the bad poetry of a carpenter’s union resulted in a defamation lawsuit and a $2.3 million jury verdict.

In Maki, the defendant had distributed flyers containing this little gem:

There once was a man named Maki,

Who didn’t want you to know his houses were crappy.

‘If my homebuyer has windows that leak,

they won’t take a peek,

and see the whole house is crappy.’

So said a man named Maki.

From a wit and wisdom standpoint, the limerick wasn’t exactly Whitey O’Day territory. Given all the words that rhyme with Maki (tacky, wacky, George Pataki), the defendant went with “crappy,” which only rhymes in an Eminem-freestylin’ type of way.

Also, if you’re going to hand out flyers to insult someone, couldn’t you offer something more inspired than a limerick that rhymes “crappy” with “crappy?” The author seemed to attend the same poetry school as Robbie Krieger from the Doors (whom I’ve always pictured sitting in his basement, guitar on his lap, coming up with the lyric: “Come on baby light my fire, try to set the night on … hmm, what rhymes with fire? How about … fire?”).

Maki Construction Company claimed in its lawsuit that the limerick constituted defamation per se, because it imputed that Maki was unable to perform competent construction services. Maki also argued that the use of quotes, and the ending line (”so said a man named Maki”) suggested that Maki had labeled its own workmanship as “crappy.”

A Lake County jury found in favor of Maki and awarded $2.3 million in damages. The trial court denied the defendant’s motion for JNOV, rejecting an attempt to invoke the innocent construction rule (ah yes, that “innocent” use of the word “crappy”).

On appeal, the defendants maintained that the limerick contained non-actionable opinion. The Second District agreed. Finding the lure of poetic verse too much to resist, the court started its opinion with a rhyme of its own:

There once was a union that called plaintiff’s work ‘crappy’

This made plaintiffs quite unhappy;

At trial, the jury filled plaintiff’s purse;

But, alas, on appeal, we must reverse.

Is it just me, or did your mind flash to the dialogue between Inigo Montoya and Fezzik in The Princess Bride? (”You have a great gift for rhyme.” “Yes, yes, some of the time.”)

Turning to the issue presented, the Maki court held: “[w]e must now delve into the meaning of the word ‘crappy’ - a dirty job for any court. Using the factors described, we cannot say as a matter of law that ‘crappy,’ as it is used here, implies anything other than non-actionable opinion.”

While this outcome was disappointing to employers who have sought legal protection from heavy-handed campaign tactics, the appellate court’s decision suggests a degree of judicial eye-rolling at having to confront the legal implications of such a juvenile insult.

And the court’s holding falls in line with many entertaining cases where harsh language has been held non-actionable.

For example, in Todd Layne Cleaners LLC v. Maloney, 2007 WL 3022036 (2007), a New York court recognized the constitutional right to say that someone “sucks.” (”The words may be discourteous and even vexatious, but do not constitute libel or slander, because [the defendant’s opinion] is afforded constitutional protection.”)

In Dilworth v. Dudley, 75 F.2d 307, 310 (7th Cir. 1996), the 7th Circuit held that being called a “crank” was not actionable. In reaching its holding, Judge Posner provided a sort of “greatest hits” listing of epithets that have been held incapable of constituting defamation “because they are mere hyperbole rather than falsifiable assertions of discreditable fact” (including “fake,” “phony,” “scab,” and “lazy, stupid, crap-shooting, chicken-stealing idiot”).

Of course, an odd paradox emerges where defendants who engaged in more subtle commentary may become mired in drawn-out litigation, while those who pop off with the most harsh or profane insults can argue “mere hyperbole” to secure a quick dismissal.

But that’s an issue for a different day.

For now, we should all just enjoy our new freedom to throw around the term “crappy” without legal consequence.

And the defendants in Maki, who dodged a $2.3 million bullet, might want to avoid further stabs at bad poetry.

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