Practice News

The rumor mill is spinning that effective July 1, 2009, Medicare Set-Aside (MSA) trusts are required for liability litigation as is already required in worker’s compensation. (Reimbursement by a plaintiff for previously paid benefits to Medicare is unchanged by the new law.) Although federal research is not my strong suit, I can’t find any support for this proposition. My best guess is that this rumor started because of the new § 111 reporting requirements included in the Medicare, Medicaid & SCHIP Act of 2007. (Public Law 111-173). Section 111 provisions are reporting requirements and do not mention any need for MSAs in liability cases. This new law simply requires those paying  for judgments to report to Medicare payments of settlements, awards, judgments, or other payments. An argument is being posited that the previous law still in effect already requires MSAs in personal-injury cases for future medical expenses. (Medicare Secondary Payer Act). I cannot find any clear authority supporting that proposition.

If you do any estate-planning work and have at least one client of means – a small-business owner, say, or a farmer or other landowner – you’ll want to familiarize yourself with Senate Bill 2115, Illinois’ spanking new QTIP legislation. “[The Illinois QTIP law] allows married couples with estates of more than $2 million to set up a QTIP trust (“qualified terminable-interest property trust”) to use marital tax deductions to defer estate taxes until both spouses are deceased,” writes ISBA Director of Legislative Affairs Jim Covington in the upcoming (August) issue of the Illinois Bar Journal. The law, which will take effect as soon as the governor signs it, started life as HB 255 only to end up as a senate bill. It’s a response to the "decoupling" of the federal and Illinois inheritance tax. The federal and Illinois tax used to kick in at the same dollar amount, but last January the federal exclusion went up to $3.5 million while the Illinois tax continues to apply to estates of $2 million or more.

In part because of the steadfast efforts of Sen. Richard J. Durbin, $10 million was included in the Senate CJS Appropriations bill for the John R. Justice Prosecutor and Defender Incentive Act. This loan forgiveness program requires balance in awards between prosecutors and public defenders and equitable distribution across the states. This is less than the full $25 million authorized, but it's unusual for a new program to get full funding. It now goes to a joint House-Senate conference committee for final markup.

Last week the Supreme Court of Illinois issued new Illinois Rules of Professional Conduct to take effect Jan. 1, 2010. New Rule 3.9 has created quite a buzz among the lawyer-lobbyists as to what it means. It may have broader applicability than those of us who lobby in Springfield to include appearances before other governmental bodies. The Rule states that “A lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5.” The incorporation of Rule 3.5 creates the buzz. Rule 3.5 prohibits ex parte communication with an official during the proceeding. Can this be construed to prohibit all lobbying by a lawyer-lobbyist unless it is part of a scheduled public hearing? In other words, is all I can do to lobby is testify in committee? No position papers to elected members of the General Assembly? No one-on-one individual lobbying? I can’t imagine that was the intent. Rule 3.5’s title is “Impartiality and Decorum of the Tribunal.” Key word is “tribunal.” It is defined in Rule 1.0(m) as follows: “Tribunal” denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity.