Q. I am not sure what is the best defense to assert while defending my client. May I file numerous defenses in the hopes that one of them will work?

A. IRPC 3.1 forbids the filling of frivolous claims. Comment [2] to Rule 3.1 states that “the filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. What is required of lawyers, however, is that they inform themselves about the facts of their clients’ cases and the applicable law and determine that they can make good-faith arguments in support of their clients’ positions. Such action is not frivolous even though the lawyer believes that the clients’ position ultimately will not prevail. The action is frivolous, however, if the lawyer is unable to either make a good-faith argument on the merits of the action taken or to support the action taken by a good-faith argument for an extension, modification or reversal of existing law.” 

ISBA members can browse past ISBA Ethics Opinions, access our Ethics Hotline, and other resources on the ISBA Ethics Page.

By John W. Olmstead, MBA, Ph.D, CMC

Q. I am the managing partner in an eight attorney firm in Phoenix. We are contemplating bringing in a senior lawyer as an Of Counsel that wants to gradually wind down his practice. We are thinking of paying him using an eat-what-he-kills approach whereby he would be paid 40% for his personal production (collected working attorney receipts) and 20% for bringing in the client (origination). Thus, if he brought in the client and did all of the work he would get 60% of the fee. What are your thoughts?

Don’t miss this opportunity to update your knowledge on the issues and challenges surrounding the confidentiality of mental health records in Illinois! Attorneys representing mental health clients, litigators needing to subpoena mental health records, and any attorney interested in learning about the issues, problems, privacy concerns, and ethics surrounding mental health records in Illinois who attend this basic to intermediate seminar will better understand: the ethical issues to consider when agreeing to represent a client alleged to have a diagnosed mental illness; mental health records and confidentiality requirements and issues; how to subpoena mental health records; how mental health records are being handled in the age of the health information exchange; and much more! The program takes place on April 10, 2015 in Chicago, as is also available as a live webcast for those unable to attend in Chicago.

The program is presented by the ISBA Mental Health Law Section and qualifies for 3.50 hours MCLE credit, including 1.0 hour Professional Responsibility MCLE credit (subject to approval).

Click here for more information and to register.

On the Evening of March 19, 2015, five alumni of the University of DePaul College of Law engaged in honest and practical conversations with current law students on the realities of practicing law. The students left this event feeling better suited to enter the approaching summer job market.

On hand for the event were (Back, from left): Mr. Stephan Blandin, Romanucci & Blandin, LLC; Mr. Johner T. Wilson III, Lewis Brisbois Bisgaard & Smith, LLP.  (Front, from left): Colleen Mulligan, ’17 ISBA Student Rep; Ms. Sarah Moravia, Avery Camerlingo Kill, LLC;  Ms. Kristy Lee, Plante Moran;  Ms. Erin M. Wilson, O’Connor Family Law, P.C.;  Sherry H. Joseph, ‘17 ISBA Student Rep;  and Steven Haamid, ‘17. Photo credit: Michael A. Coleman, Jr

The Committee on Legal Education, Admissions and Competence has established "The Excellence on Legal Education Award" designed to annually honor a law school program that emphasizes real world skill for students.

Criteria

• Must be a program, class, clinic or other initiative focused on teaching practical skills as an ABA accredited law school affiliated with the ISBA;
• Must provide students with an opportunity to practice identifiable, practical legal skills, including but not limited to skills related to advocacy, transactional representation, law office management or ethics.

Our panel of leading appellate attorneys review Thursday's Illinois Supreme Court opinions in the civil cases Brunton v. Kruger, Cowper v. Nyberg, Skaperdas v. Country Casualty Ins. Co. and Harris v. One Hope United, Inc and provide short summaries for In People ex rel. Madigan v. J. T. Einoder, Inc., McCormick v. Robertson and In re Parentage of Scarlett Z.-D.

CIVIL

Brunton v. Kruger

By Alyssa M. Reiter, Williams, Montgomery & John Ltd.

ISBA Director of Legislative Affairs Jim Covington reviews legislation in Springfield of interest to ISBA members. This week he covers Court reporters, Attorney fees in civil actions (House Bill 2456), Product liability and confidentiality orders (House Bill 3518), Property fraud alert system (House Bill 3672), Guilty pleas (House Bill 2569) and The Notice and Opportunity to Repair Act (House Bill 3744). More information on each bill is available below the video.

Health care attorneys in Illinois saw the need for a simpler, more user-friendly statutory form for clients to declare who would hold their health care power of attorney and how that person should proceed. Elder law attorneys objected to what they saw as "dumbed down," vague, or simplistic language that might leave the elderly vulnerable to the unscrupulous.

The Illinois legislature unanimously passed a bill to change the statutory form. The bill was originally drafted by the Illinois State Medical Society (ISMS) with input from the ISBA and other groups. It became Pub. Act 98-1113 and took effect January 1, 2015. And now, estate planning attorneys have begun to put it into place, with some caveats and wrinkles that they are finding useful in honing the new language to ensure that it serves their clients well.

Find out more about how lawyers are using the new form in the April Illinois Bar Journal.

Q. If I’m forced to sue my client for a fee, can I disclose in pleadings or in open court the services I rendered to the client or is that breaching a confidence?

A. Rule 1.6 provides broadly that a lawyer shall not reveal “information relating to the representation of a client.”   However, subpart (b)(5) of the Rule allows a lawyer to reveal such information “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client.”  Comment [11] to the Rule notes “a lawyer entitled to a fee is permitted by (b)(5) to prove the services rendered in an action to collect it.” 

ISBA members can browse past ISBA Ethics Opinions, access our Ethics Hotline, and other resources on the ISBA Ethics Page.