E-Day is approaching for the Illinois court system. The deadline days for statewide mandatory e-filing, that is.
Illinois Bar Journal
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May 24, 2017
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May 9, 2017 |
Practice News
It's Sunday afternoon and the neighbor kid's drone comes buzzing over your yard, maybe 50 feet overhead. Like any good lawyer you ask yourself, "Is this drone flight violating my airspace?" (If you're a really good lawyer, you refer to "airspace" as "vertical curtilage.")
The short answer is yes, writes Elizabeth Austermuehle in the April ISBA Real Property newsletter. "[I]n the absence of federal or state regulations granting drones the right to fly over private property without the property owner's permission, drones do not have the right to do so," she writes. Though Illinois has passed legislation ordering up a task-force report on drone regulation (due July 2017), state law does not currently regulate drone use.
As for federal law, the FAA has long permitted flights over private property in "navigable airspace," which generally applies to the space 500 feet and higher above ground, Austermuehle writes. But it hasn't had much to say about drones - at least not until June 2016, when the agency "released its first operational rules for routine use of small [unmanned aircraft systems]," she writes. "The rules offer safety regulations for UAS weighing less than 55 pounds conducting non-hobbyist operations. Among other things, the rules require drone operators to keep the drones within their visual line of sight and prohibit flights over unprotected people on the ground who are not directly participating in the UAS operation."
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May 3, 2017 |
Practice News
All attorneys have opinions about judges. Those opinions are sometimes negative and are often shared around the office, or when talking shop with a colleague.
But lawyers should beware of voicing those opinions in a more public forum. Rule 8.2 of the Illinois Rules of Professional Conduct prohibits attorneys from knowingly making false statements concerning the qualifications or integrity of a judge.
So when do opinions become lies? The First Amendment protects people who are stating opinions. It doesn't protect defamatory speech. And the issue gets even more complicated when that speech is part of a document filed with the court.
Some years back, the seventh circuit considered the nexus between the First Amendment and ethical rules in In re Palmisano, 70 F.3d 483 (7th Cir. 1995). There, the court reviewed a rule to show cause why an attorney who had been disbarred in Illinois should not be disbarred by the U.S. District Court for the Northern District of Illinois as well.
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April 26, 2017 |
Practice News
Twenty years ago, law firm document management revolved around meticulously organized manila files, metal drawers, and bankers boxes, with instructions not to fold, spindle, or mutilate them as they were being physically transported to another attorney or a courtroom.
While those physical manifestations still remain to varying degrees in law offices, document management today is more likely to focus on electronic files that need to be created and managed on a server or in the cloud, with instructions to ensure they're adequately encrypted before being electronically transported to one of the aforementioned destinations.
Paul Unger, a partner with Affinity Consulting Group who works with attorneys and law firms, recommends that legal offices use a top-shelf, sophisticated electronic document management system to handle the creation and storage of most types of documents.
"If we're talking about transactional attorneys - or even if it's litigation, but it's your own work product, your own correspondence and responses - anything we would draft ourselves, pleadings, motions, I would recommend in today's age that a firm have a document management system," he says. Unger recommends four primary choices: Worldox, NetDocuments, iManage (formerly Interwoven Worksite), and Open Text (formerly Hummingbird). Find out more in the May IBJ.
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April 18, 2017 |
Practice News
"If you think that most malpractice claims come from administrative errors like the failure to file documents, think again," writes Karen Erger in the April Illinois Bar Journal.
"[Consistently, the ABA's quadrennial study of malpractice claims has] found that substantive errors are the largest category of errors alleged in legal malpractice claims, Erger writes in her IBJ Loss Prevention column, sponsored by the ISBA Mutual Insurance Company. "In the 2016 study, for the first time since the 1999 study, substantive errors account for more than half of alleged errors. And the single most common error is a substantive error, namely 'Failure to Know/Properly Apply the Law,' which accounts for 15.38 percent of claims in the 2016 study. This validates the risk management maxim that dabbling in unfamiliar areas of practice is risky business, and underscores the importance of concentrating your practice on a few areas of law so that you can stay competent and capable in those areas," she writes.
In fact, administrative errors have fallen "from 30.13 percent of claims in the 2011 study to 23.15 percent in the 2016 study," Erger writes. "The study's authors suggest that '[b]etter computer calendaring systems, e-filing, electronic record keeping, and multiple modes of communication with clients appear to have assisted attorneys in managing their law practice.'"
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April 12, 2017 |
Practice News
"This past January, many newspapers carried stories of lawyers at airports, including O'Hare, offering assistance to immigrants and their families in light of the January 17 Presidential Executive Order on immigration," ISBA General Counsel Charles Northrup writes in the April Illinois Bar Journal. "The stories were often accompanied by photos of lawyers holding up hand-written signs saying things like 'Need a Lawyer?' or 'Lawyers Here to Help.'"
As Northrup puts it, he is "burdened to view the world through the lens of legal ethics," and his first thought was, "Isn't this improper in-person solicitation?"
Northrup explains that Illinois Rule of Professional Conduct 7.3, which governs in-person solicitation of clients, provides in subsection (a) that "a lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain…."
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March 29, 2017 |
Practice News
When it comes to optimizing your practice, do you trust your gut? Don't. If you aren't using data to measure what works and what doesn't, you can't be sure you're winning, says Jeffrey S. Krause, a partner at law-office management consulting firm Affinity.
The movie Moneyball features a scene during which a group of scouts for the Oakland Athletics sit around a table babbling about which players they think have the most potential for their team, citing characteristics like "he's got a strong jaw" and "he's got an ugly girlfriend, which means he lacks confidence."
The team's general manager, Billy Beane (played by Brad Pitt), admonishes the grizzled assemblage about the inherent imprecision of their old-school metrics and turns instead to a young whiz-kid well versed in computers, who can tell him statistics like which players get on base the most, and thus score the most runs and help the team win. The team ends up riding a late-season 20-game winning streak to a playoff berth, despite having a lost three star players during the offseason.
Krause believes that attorneys can make similar use of metrics to score the most clients and overall work and help their firms win. "When you're looking at a baseball player, saying that somebody has potential, well have they realized that potential?" Krause says. "He seems to have speed; well, if that speed isn't translating into an extra base here or there, what good is that speed?
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March 7, 2017 |
Practice News
On January 25, 2017, Illinois State Representatives Will Guzzardi, Steven Andersson, and Tom Demmer introduced HB 689. The bill, which has bipartisan support and 14 other co-sponsors, would amend various asset-forfeiture statutes to increase fairness to property owners, increase transparency in the forfeiture process, and remove financial incentives that encourage police and prosecutors to seize citizens' property.
Civil forfeiture is heavily used under current Illinois law. Unlike criminal asset forfeiture, civil forfeiture does not require a criminal conviction before an individual's property can be taken by the government. In some situations, property owners may not be aware that a forfeiture proceeding is taking place because the case is brought in rem. HB 689 would change that.
The bill's changes are in line with recommendations by two strange ideological bedfellows, the American Civil Liberties Union of Illinois and the Illinois Policy Institute. The two organizations recently produced an article examining asset forfeiture in Illinois and proposing reforms for the existing system (read it at http://www.aclu-il.org/wp-content/uploads/2016/11/civil-asset-forfeiture.pdf).
Find out more about the bill in the March Illinois Bar Journal.
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February 28, 2017 |
Practice News
Beginning next year, lawyers who don't carry malpractice insurance will have to complete a four-hour assessment of their ethical knowledge and management practices.
Each year, the ARDC requires Illinois attorneys to report whether they or their firms carry malpractice insurance. That information is made public via the ARDC's website, although a prospective client may not know the website exists, let alone that it provides such information. On January 25, 2017, the Illinois Supreme Court amended Rule 756(e) by implementing "proactive management based regulation" (PMBR). The new rule will require attorneys who do not carry malpractice insurance to complete a four-hour interactive, online assessment of the operations of their firm. The assessment is based on both ethical rules and best business practices. It will be conducted every two years, beginning in 2018. (For more about PMBR, see the June 2016 Illinois Bar Journal cover story.)
According to James Grogan, the ARDC's Deputy Administrator and Chief Counsel, 41 percent of solo practitioners in Illinois do not carry malpractice insurance. There are roughly 13,500 solo attorneys in the state, which means some 5,500 practice uninsured. What's more, nine percent of small firms do not maintain malpractice insurance policies.
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February 22, 2017 |
Practice News
For about a dozen years after Kerry Lavelle founded his namesake law firm a quarter-century ago, he was based in the loop and took what cases he could find, enjoying steady success that enabled him to grow the firm to five lawyers, which he took pride in at the time.
About 13 years ago, he moved the firm to northwest suburban Palatine and undertook a change in direction aside from geography. "I took a very different approach: I built a business plan, and with the right discipline, we really grew the firm, and we now have 24 attorneys," says Lavelle, who will speak in Moline March 31 at the ISBA Solo and Small Firm Practice Institute on "Build It and the Profit Will Come: Simple Steps to Building Your Business Plan."
Lavelle didn't just throw himself into this exercise blindly. "I read a lot of business books, and I realized there's more to a business plan than just the pro forma financials," he says. "A business plan is a model to really touch on all the necessary elements of the business going forward. And if you stick to those goals and those truisms, you will be successful."
A business plan can help lawyers flesh out their ideas, and in some ways the journey is more enlightening than the destination, says Debbie Foster, partner at Affinity Consulting Group, who helps law firm clients put business plans together.