Proposals address financial disclosure in divorce, how judges describe defendants' decision not to testify, and how to handle inadvertent disclosure of documents.

As this issue of the IBJ was being prepared for publication, the Illinois Supreme Court's Rules Committee announced that it would hold a hearing on a number of proposals for new or modified rules.

Financial disclosure in divorce

Proposal 08-03, submitted by ISBA, would create a new supreme court rule regarding financial disclosure that would apply to all family law matters involving property or support, including those in which one party seeks an award of costs or attorney fees from the other party. With court permission, the parties might agree to opt out of the rule's coverage.

If adopted, the rule will require the parties to serve completed financial disclosure statements on each other on a form, published below the proposed rule, approved by the supreme court. The form calls for a listing of the parties' current circumstances, including not only current addresses and employment, but also a detailed listing of their income, health insurance, living expenses, unreimbursed business expenses, children's expenses, marital and claimed nonmarital assets, asset transfers, and liabilities, as well as potential areas of disagreement.

Additionally, the parties must exchange their most recent pay stubs, their last three years of tax returns with schedules and attached statements, records of any other income, and up-to-date statements of assets such as bank and brokerage accounts. The proposed rule requires the parties to sign their disclosure forms and to seasonably update them in the same manner as discovery. Like discovery, the forms are not to be filed with the court.

"Failure to testify" in criminal cases

In Proposal 11-03, Chicago criminal defense lawyer Robert Loeb offers an edit to the wording of SCR 431(b). In People v Zehr, 103 Ill 2d 474, 469 NE2d 1062 (1984), the Illinois Supreme Court held that judges must ask jurors whether they understand and accept four components of the presumption of innocence, including that the defendant's failure to testify in his own behalf cannot be held against him. The court codified those requirements in SCR 431(b). Loeb's amendment would substitute "fact that a defendant does not testify" for the phrase "defendant's failure to testify."

Charleston lawyer Jeremy Richey summarized the problem with the rule's current phrasing from the defense perspective. "This phrase, spoken by a judge, makes it sound like a defendant's lack of testimony is a moral failure on his part, but the jury should not hold that moral failure against the defendant. A defendant has no obligation at all to testify. Mr. Loeb's proposal corrects this problem." For his part, Loeb says, "Declining to testify should not be phrased in a negative way. The rule takes away the negative word 'failure.' It tweaks the language to reflect the spirit and intent of the rule."

Protection against inadvertent disclosure of documents

Proposals 11-01, submitted by the Special Supreme Court Committee on Illinois Evidence, and 11-02, submitted by Chicago lawyer Steven Puiszis, a past president of the Illinois Association of Defense Counsel, would create a new rule of evidence and a new supreme court rule. Together, the rules would address whether and to what extent a lawyer may assert that documents are covered by privilege or work product after disclosure and what procedure the parties and the court are to use to address those issues.

The committee's proposed rule mirrors most of the language of FRE 502. Puiszis's proposed rule is as follows:

If information produced in discovery is subject to a claim of privilege or of work product protection, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, each receiving party must promptly return, sequester, or destroy the specified information and any copies; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the receiving party disclosed the information to third parties before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must also preserve the information until the claim is resolved.

The proposed rules, Puiszis says, would give parties in state court proceedings substantially the same protection against inadvertent disclosure as they receive in federal court.

"These rules would create a means to assert privilege or work product after you've inadvertently produced documents that are protected. They also permit a court to enter an order which will provide each side with protection as against third parties, which would not be available if they simply entered into an agreement with one another."

Puiszis says his proposal is also consistent with a more collegial approach to litigation. "This rule dovetails nicely with RPC 4.4(b), which requires attorneys to notify the other side once they receive documents that they reasonably believe may be privileged or work product."

The hearing will address several other proposals, including Proposal 10-06, Offered by the IJC Committee on Criminal Law and Probation Administration. That proposal would amend SCR 402(d)(1) to authorize judges to participate in plea discussions within certain parameters. The hearing will be convened on January 23, 2012, at 10 a.m. at 160 N. LaSalle St., Room C-500, in Chicago.