Electronic age brings out-of-state opportunities, but know the risks
Now that the world communicates electronically, lawyers are better positioned to expand their work across state lines. Such opportunities could lead to the unlicensed practice of law, particularly by sole practitioners who lack satellite offices or partners admitted in target jurisdictions.
Before you advise that out-of-state client, or settle a dispute beyond Illinois’ borders, consider the limits on multijurisdictional practice under Rule 5.5(c) of the Rules of Professional Conduct.
Allowed services for out-of-state practice
Rule 5.5(c), adopted by most states with minor modifications, sets up three safe harbors for out-of-state attorneys who provide “legal services on a temporary basis.”
The first two authorized methods are straightforward. Associate with a local attorney who “actively participates in the matter,” or if you have a court case, secure pro hac vice admission. Lawyers can perform preparatory work before they are admitted — interviewing clients and witnesses, reviewing documents, etc. — if they “reasonably expect” to obtain leave to appear in the “potential proceeding.”
The third permissible ground exists when the temporary services “arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.”
What sorts of “temporary” services in the foreign jurisdiction are deemed “reasonably related” to the lawyer’s in-state practice? The answer vaguely depends on the subjective interpretation of each individual state.
“Temporary basis” and “reasonably related” tests undefined
According to a Rule 5.5 comment, “[t]here is no single test to determine whether a lawyer’s services are provided on a “temporary basis” … and may therefore be permissible under [P]aragraph (c).” The comment underscores the lack of any objective standard, by adding that services provided on a “recurring basis” or “extended period of time” may still be considered “temporary,” when they relate to “a single lengthy negotiation or litigation.”
The commentary to Rule 5.5(c) is equally unhelpful in defining what services in the foreign jurisdiction are “reasonably related” to the lawyer’s in-state practice.
Reference is made to a “variety of factors,” such as connections between the client and the lawyer’s home state, prior representation of the same client, involvement of multiple jurisdictions in the same case or the application of laws from the home state, federal government or other nationally uniform laws.
In Illinois, the Attorney Registraton & Disciplinary Commission posts a Q&A on its website that addresses whether a local attorney could advise a Milwaukee client on legal issues related to Illinois, Wisconsin and federal law.
Although the discussion pre-dates the inclusion of Rule 5.5(c)’s “reasonably related” provision, the ARDC — after acknowledging the unauthorized practice of law is “not subject to any precise definition” — suggests that merely giving advice to a Wisconsin company “would not be considered engaged in the unauthorized practice of law simply because the client is situated in Wisconsin.”
Other states add their own clarifications or requirements. Indiana, for example, cautions that advertising to its residents may be considered a systematic and continuous presence in violation of Rule 5.5(c).
Wisconsin provides its lawyers will not be disciplined for engaging in conduct in another jurisdiction that would be allowed in Wisconsin under Rule 5.5(c).
Arizona mandates informed client consent before services from out-of-state counsel may be provided.
E-mails to Minnesota considered unlicensed practice of law
Recently the Minnesota Supreme Court reached a high water mark in the enforcement of Rule 5.5(c), when it admonished an out-of-state attorney for sending e-mails to a Minnesota lawyer. In re Charges of Unprofessional Conduct in Panel File No. 39302, 884 N.W.2d 661 (Minn. 2016).
The trouble started when a Colorado lawyer tried to help his in-laws settle a Minnesota court judgment. The attorney’s practice included debt collection matters, and he exchanged two dozen settlement e-mails with the judgment creditor’s Minnesota attorney. When no settlement was reached, the disgruntled creditor’s attorney complained to the Minnesota authorities regarding the Colorado lawyer’s unlicensed practice of law.
After noting that “[w]hether an attorney engages in the practice of law in Minnesota by sending e-mails from another jurisdiction is a matter of first impression,” the court determined that the Colorado lawyer impermissibly practiced in Minnesota, by “negotiating the resolution of a claim on behalf of a client.”
The services had a substantial nexus to Minnesota, the court said, because the in-laws resided there, and the judgment was based on Minnesota law.
Reasoning that physical presence was not necessary, the court concluded the several months of negotiation was not “fortuitous or attenuated” and consequently there was “ample support … that appellant practiced law in Minnesota.”
Three justices joined in a “reality check” type of dissent, arguing the lawyer was simply assisting his family, and his collection work in Colorado had a sufficient connection to his Minnesota services to meet the “reasonably related” test under Rule 5.5(c).
The dissent continued that the majority decision was “contrary to the principles and policy goals intended by Rule 5.5(c),” by forcing “experienced and competent” lawyers to turn away “family members or friends” despite a “relationship of trust and confidence.”
Compelling those clients to hire other in-state counsel — even for “minor, temporary services in which the out-of-state lawyer could have provided efficient, inexpensive and competent service” — does not comport with Rule 5.5(c), the dissent concluded.
When in doubt, call the state first
Given the resounding uncertainty regarding Rule 5.5(c)’s “temporary basis” and “reasonably related” tests, when you receive that next matter with multijurisdictional ties, make no assumptions.
Contact the other state’s ethics commission before you act and assess its current position on your intended work. The call could save a lot of grief down the road.
© 2017 Law Bulletin Publishing Company. All rights reserved.
Monday, March 27, 2017 • Volume 163, No. 59
Reprinted with permission from Law Bulletin Publishing Company
Glenn E. Heilizer, “Sole Speak” Column
glenn@heilizer.com
While banks many times on the hook in check fraud cases, there are outs
Costly check fraud schemes by employees continue to plague businesses that use traditional paper check systems. Losses can be staggering.
Recently a worker in Maryland confessed to diverting more than $1 million by submitting fraudulent invoices to her employer and endorsing the checks to herself.
An Illinois bookkeeper siphoned $14 million by depositing checks payable to her employer’s entities into her own accounts with similar names. Other unfortunate examples abound.
Under the Illinois Uniform Commercial Code, depositary or payor banks generally foot the bill for most forms of check fraud. In a tight economy, with increased automation in check processing, litigation against banks over fraudulently endorsed checks has been brisk.
Counsel for financial institutions should keep in mind while the UCC places a high burden on banks in check fraud cases, certain key provisions may provide a defense when employees dip into the negotiable instrument till.
“Responsible employee” defense under Section 3-405
Under Subsection 3-403(a), an “unauthorized signature” — including a forgery under Subsection 1-201(41) — is “ineffective except as the signature of the unauthorized signer,” which generally leaves banks on the hook for forged items.
However, Section 3-405 shifts responsibility for fraudulent employee endorsements from banks to employers, when the employee is “entrusted … with responsibility with respect to the instrument.”
Section 3-405 is conditioned on the bank having accepted the fraudulently endorsed check in “good faith,” defined in Subsection 1-201(20) as “honesty in fact and the observance of reasonable commercial standards of fair dealing.”
The “responsible employee” rule applies both to inbound checks payable to employers and outbound checks issued by employers to third parties.
The rationale for this risk-shifting provision, Comment 1 explains, is that “the employer is in a far better position to avoid the loss by care in choosing employees, in supervising them and in adopting other measures to prevent forged [e]ndorsements.”
Section 3-405 liberally construed
Consistent with the express policy of incentivizing employers to supervise their workers, Section 3-405 is liberally construed to protect banks where employers fall short in monitoring financial accounts.
Initially, Section 3-405 broadly defines the term “employee” to include any person “acting in concert with the employee,” such as “an independent contractor and employee of an independent contractor retained by the employer.”
Some courts even consider outside agents to be included under Section 3-405 as employees, as long as they have the requisite authority. Concord Servicing Corp. v. JPMorgan Chase Bank, N.A., 2014 U.S. Dist. LEXIS 85627 (D. Ariz., June 24, 2014).
Next, regarding the “entrusted with responsibility” test, almost any limited employee role in issuing or depositing funds may suffice. See Armenian Missionary Association of America Inc. v. TD Bank, N.A., 2015 U.S. Dist. LEXIS 121177 (D. N.J., Sept. 11, 2015) (employee was “partially responsible” within the meaning of Section 3-405 when “on a very rare occasion [he] was asked to go to the bank to deposit donation checks when the person responsible for depositing checks was unavailable”).
Comparative negligence
Section 3-405 also includes a scale-balancing, comparative negligence test that requires banks to use “ordinary care” in “paying or taking the instrument.” If “ordinary care” is not used, the employer “may recover from the [bank] to the extent the failure to exercise ordinary care contributed to the loss.”
“Ordinary care” is defined in Subsection 3-103(a)(7) as the observance of “reasonable commercial standards,” and when proper automated check processing systems are used, “reasonable commercial standards do not require the bank to examine the instrument.”
While “ordinary care” determined case-by-case, Comment 4 to Section 3-405 offers examples where the standard is breached:
- A bank allows an employee to open a corporate account in the name of a “well-known national corporation” without requiring resolutions or other proof of authority.
- The employee promptly deposits a check that is “for a very large amount of money.”
- The employee tries to “withdraw the credit by a wire transfer to an account in a bank in a foreign country.”
Other defenses to forgeries
Even if the “responsible employee” rule does not apply, other UCC provisions may provide a defense to employee check forgeries.
First, under Section 3-404, an endorsement by an “imposter” or “fictitious payee” — for example, an employee pretending to be a vendor or posing as a fake vendor — is effective if the employee induced the employer to issue the check. Comparative negligence based on “ordinary care” applies.
Second, Section 3-406 provides banks with a defense when the employer “substantially contributes” to a forgery or alteration. If the bank failed to use “ordinary care,” comparative negligence again applies.
Third, Section 4-406 requires employers to examine bank statements for unauthorized transactions and promptly notify the bank, or the claim is waived against a bank that acted with “ordinary care.”
Comparative negligence in “double forgery” case
In a case that would serve well as a law school hypothetical, a trial court in Philadelphia applied comparative negligence principles in an employee “double forgery” case. The court allocated the better part of the loss to the bank for failing to follow its own deposit procedures.
In Victory Clothing Co. v. Wachovia Bank, N.A., 59 UCC Rep. Serv. 2d (Callaghan) 376 (Phila. Ct. Com. 2006), a bookkeeper issued checks from her employer’s account and made them payable to existing vendors. Next, the bookkeeper forged the employer’s signature on the front and the vendors’ endorsements on the back, then deposited the items into her personal account at Wachovia Bank.
After examining the UCC’s loss allocation rules and deciding that comparative fault principles apply to depositary banks in “double forgery” cases — then a “question of first impression” in Pennsylvania — the court allocated responsibility between the employer and Wachovia.
The court determined (1) Wachovia violated its own rule that checks payable to a non-personal payee must be deposited in a non-personal account with the same name; (2) the employer failed to spot his forged signature and his bookkeeper’s information on the checks; and (3) there were inadequate safeguards in the employer’s record-keeping process.
After balancing those factors, the court placed the primary blame on Wachovia for depositing corporate checks in a personal account.
“Had a single teller at Wachovia followed Wachovia’s rules,” the court predicted, “the fraud would have been detected.”
Because Wachovia “failed to exercise ordinary care,” which “substantially contributed” to the loss, the court concluded, Wachovia was liable for 70 percent of the converted funds.
In summary, although the UCC places a high burden on banks to detect fraud in the presentment and payment of illicit checks, counsel should keep in mind that various provisions may provide a full or partial defense in employee-theft cases. Making sure the bank followed its own procedures is a vital factor.
© 2017 Law Bulletin Publishing Company. All rights reserved.
Wednesday, February 8, 2017 • Volume 163, No. 27
Reprinted with permission from Law Bulletin Publishing Company
Glenn E. Heilizer, “Bank Beat” Column
glenn@heilizer.com
New mandatory rule for solos looks to help those without malpractice insurance
As reported in last April’s Sole Speak column, alarming numbers of sole practitioners lack malpractice insurance or formal succession plans, leading the state to consider more proactive methods of attorney regulation.That day is here. Under newly amended Supreme Court Rule 756, lawyers without insurance for 2018 must undergo mandatory self-assessment and training to maintain their good standing for the following year.
Key provisions of Rule 756(e)(2)
Subpart (e)(2) of Supreme Court Rule 756 now requires uninsured lawyers who register for 2018 to complete an “interactive online educational program” sponsored by the Attorney Registration & Disciplinary Commission.
Although the program’s specific components are not yet available, the mandated subject matter concerns “professional responsibility requirements for the operation of a law firm.”
Once the course is completed, the lawyer will receive the “results of the self-assessment,” along with “resources ... to use to address any issues raised by the self-assessment.”
Program participants are awarded four hours of Continuing Legal Education professional responsibility credit and all coursework is confidential. Responses may not be used in any disciplinary proceeding.
Every lawyer who does not have a malpractice policy for 2018 must either complete the ARDC’s self-assessment course or procure insurance to be eligible for the 2019 registration year.
The specified two-year cycle — reporting insurance status in year one, followed by self-assessment and training (or securing insurance) in order to register for year two — then repeats in 2020 and beyond.
First state with mandatory proactive training
Although this type of proactive management based regulation, or PMBR, has been used abroad and is being evaluated on a voluntary basis in Colorado, Illinois is the first U.S. jurisdiction to implement a full-fledged, mandatory PMBR program.
The ARDC’s deputy administrator and chief counsel, James J. Grogan, an early and vigorous advocate for PMBR, lends his full support to the state’s new self-assessment procedures.
Grogan points out that PMBR is intended to help fill a role normally addressed by malpractice insurers for covered attorneys. To secure a policy, lawyers must complete a comprehensive application that details existing client-protection and succession-planning measures, he explained.
The application process itself has a proactive benefit, by compelling lawyers to think about and address those critical issues, in order to obtain coverage.
Grogan explains that PMBR assists lawyers in evaluating many of the same issues considered important by malpractice insurers, thus promoting sound firm practices, reducing the risk of client complaints and avoiding disciplinary problems down the road.
Is this new rule intended to force registrants to obtain malpractice insurance? Absolutely not, Grogan responded.
The simple fact is that more than 40 percent of Illinois solos are practicing without coverage, and the state wants to help this substantial group make good self-assessment decisions and stay on the right track.
Grogan also emphasized that PMBR is intended to be collaborative and forward-looking, not punitive. “We want to give our lawyers an additional safety net, including new graduates who are practicing on their own without a mentor.”
As to the online program content, Grogan noted the curriculum will not merely consist of endless questions regarding an attorney’s practice. Instead, the material is expected to include video presentations and other creative formats to help fill gaps that may exist regarding client safeguards and succession planning.
Grogan said he wants lawyers to know the program can benefit all counsel, covered or not, and anticipates healthy enrollment figures in 2018. With four CLE credit hours to be awarded at the conclusion, PMBR training is a win-win proposition for all.
Mandatory succession planning could be next
Currently, more than three-quarters of all solos in Illinois report they have no succession plan. Illinois has not yet mandated succession planning for sole practitioners, but the writing could be on the wall.
Although a number of states sponsor voluntary succession planning — and Florida requires disclosure of an “inventory attorney” to serve on a permissive basis — Iowa is the first state to require full succession planning by its members.
Under Iowa Court Rule 39.18, all private practitioners must identify an “assisting attorney” with appropriate durable powers to wind down the practice in the event of disability or death.
The rule additionally requires counsel to maintain basic practice information, such as a client list, and provide the state with custodial and location information for the client list, electronic and paper files and records, passwords and other security protocols.
The Iowa rule also encourages lawyers to include planning provisions that permit the assisting attorney to collect fees and expenses, terminate leases and liquidate or sell the practice.
Grogan acknowledged that succession planning is a core need for all solo practices and said the ARDC continues to study the issue.
Given the state’s pioneering efforts with PMBR, mandatory succession planning for sole practitioners may not be far behind.
© 2017 Law Bulletin Publishing Company. All rights reserved.
Thursday, February 1, 2017 • Volume 163, No. 22
Reprinted with permission from Law Bulletin Publishing Company
Glenn E. Heilizer, “Sole Speak” Column
glenn@heilizer.com
From atheism to Zappa, attorney continues fight for civil liberties
One of the most well-known atheist activists in the country recently died, when his small plane crashed in a field outside far northwest suburban Marengo. His name was Rob Sherman.
Like him or not, Sherman was an unwavering voice for strictly secular government — and a lightning rod for controversy.
Richard Grossman, of the Law Offices of Richard D. Grossman, was Sherman’s attorney. Grossman discusses his former client and a legal career spent fighting for civil liberties.
Separation of church and state
Grossman recalls Sherman pursued every opportunity to remove vestiges of religion from government, despite long odds. Sherman wrote letters, filed petitions, attended hearings, hosted radio and television shows and went to court whenever possible.
Notable cases pursued by Grossman for Sherman include:
•For a member of Sherman’s atheist society, Grossman worked on a legal team that obtained an injunction against the city of Zion’s official seal, which contained a religious symbol and related verbiage. The 7th U.S. Circuit Court of Appeals affirmed the hotly contested injunction, concluding that “sectarian religious imagery simply has no place on municipal seals.” Harris v. City of Zion, 927 F.2d 1401 (7th Cir. 1991).
•Next, Grossman lost a challenge to a state school statute requiring daily recitation of the Pledge of Allegiance. The 7th Circuit found no violation because students could choose not to recite, and the phrase “under God” was a common “ceremonial reference[] in civic life to a deity” that did not violate the establishment clause. Sherman v. Community Consolidated School District 21, 980 F.2d 437 (7th Cir. 1992).
•Grossman went on to assist Sherman in challenging the Boy Scouts’ use of public school facilities, because the organization required its members to believe in God. The 7th Circuit rejected the claim, ruling the Boy Scouts were not given any special treatment apart from other groups at the school. Sherman v. Community Consolidated School District 21, 8 F.3d 1160 (7th Cir. 1993).
•Grossman and Sherman later revisited school prayer, protesting a law mandating a daily period of silence. A divided 7th Circuit panel vacated the trial court’s injunction and upheld the law, because it did not promote religion and the required silence served a secular purpose: “To calm the students and prepare them for a day of learning.” Sherman v. Koch, 623 F.3d 501 (7th Cir. 2010).
Controversy on the big stage
Although Sherman is praised for his tenacious fight against government-sponsored religious elements, Grossman concedes Sherman was a complicated figure.
While Grossman declined media briefings, Sherman coveted the public eye, pursuing reporters to further his agenda, and even running for Congress on the Green Party ticket. In the early years, questionable media interviews exposed Sherman’s young children to harsh public scrutiny. And later, a domestic abuse incident involving his teenage son.
Yet Sherman also paid a heavy price, Grossman added, for his relentless efforts to keep religion out of government. Sherman repeatedly endured insults, including the time a city councilman said, “You make me sick to my stomach” for opposing a Ten Commandments monument.
Privately, he received death threats, and vandals attacked his house, making him fear for his family.
Having a forceful public presence may have been Sherman’s way of not backing down, Grossman explained.
A prime display of Sherman’s incongruity occurred in 2008 on MSNBC’s political show “Countdown with Keith Olbermann,” where Olbermann announced daily winners of his Worst Person in the World Award.
Initially, Olbermann lobbied for Sherman as an aggrieved victim of the Worst Person — Rep. Monique Davis — when Davis angrily criticized Sherman for opposing a state grant to restore a Baptist church.
Just a week later, Sherman himself received the Worst Person Award from Olbermann for responding to Davis with racially charged language on his website.
Protecting basic freedoms not a popularity contest
In a 2009 blog, Sherman predicted, “I won’t be around forever, but when I do go away, there will be plenty of others to pick up the ball and carry it forward.”
Grossman manages to keep up the fight for basic freedoms, despite a busy commercial litigation practice across three states. Not all cases succeed and earning fees is difficult, but Grossman is convinced that “you need to make government respect personal liberties every time” or lose them “inch by inch.”
Thus, Grossman takes important constitutional cases regardless of popularity. “We need to protect speech and beliefs we don’t like, not just views we support,” he said, as he puts up with angry letters, negative editorials and occasionally irate tribunals.
His significant efforts include the following:
•Consulting with radical musician Frank Zappa, who testified before a congressional committee against the control of music lyrics with ratings on rock recordings.
•7th Circuit affirmance of “class of one” protection under the equal protection clause; client was selectively prosecuted by police in an ongoing neighbor dispute.
•Provision of Hunter Interference Prohibition Act struck by Illinois Supreme Court as “an illegal legislative censure of opinion”; client photographed and disturbed hunter in pursuit of a deer.
•Unsuccessful challenge to school’s mandatory uniform policy as violation of clients’ religious beliefs; court ruled policy did not interfere with free exercise of religion.
•Denied injunction against city memorial ceremony commemorating the Sept. 11 attacks with prayer; court found ceremony had a “secular purpose.”
•Failed challenge to Boy Scouts for denying membership to boy who refused to affirm belief in God; 7th Circuit ruled Title II of the Civil Rights Act of 1964 did not apply to Scout meetings.
•7th Circuit affirmance of students’ right to wear T-shirts opposing homosexuality that read “Be Happy, Not Gay”; statement was protected under First Amendment and not sufficiently disruptive to justify exclusion.
Foreseeability of suicide
Grossman’s most disappointing case veers from liberties to wrongful death, and the Illinois Supreme Court’s recent decision that a suicide was not foreseeable.
In Turcios v. DeBruler Co., 2015 IL 117962 (2015), a non-English speaking family came apart following an outrageous set of assaultive eviction tactics by a property owner’s agent.
Just 10 days after the family paid the security deposit and first month’s rent and moved in, the agent wrongfully served a notice of eviction, followed by letters and harassing phone calls. A month later, the owner started to demolish the building with the family still inside. The next day, the husband, at wit’s end, committed suicide in the apartment, leaving behind his wife and children.
Although Grossman’s wrongful death claim was consistent with authority from five other states and a federal court interpreting Illinois law, the Illinois Supreme Court disagreed.
“[I]t is the rare case in which the decedent’s suicide would not break the chain of causation and bar a cause of action for wrongful death, even where the plaintiff alleges the defendant inflicted severe emotional distress,” the court said. “The case before us is not one of those rare cases.”
Given the gravity of the agent’s conduct, disastrous harm to an innocent family, along with the solid case law from other jurisdictions, Grossman admits this case has been hard to shake.
In sum, though social activists lost a strong advocate with Rob Sherman’s passing, Richard Grossman is still on the job, popular or not.
On your next trip to federal court, if you see a lawyer with a shock of white hair at the lectern, asking an irritated judge to ban Angel Food cake from the school cafeteria menu under the establishment clause, you’ll know Grossman is at it again.
© 2017 Law Bulletin Publishing Company. All rights reserved.
Thursday, January 12, 2017 • Volume 163, No. 8
Reprinted with permission from Law Bulletin Publishing Company
Glenn E. Heilizer, “Sole Speak” Column
glenn@heilizer.com
Six free Google services that can give your solo practice a boost
To compete in today’s legal marketplace, sole practitioners need to be tech-savvy.
Securing a free Google account is a step in the right direction. Here are a few of the online giant’s no-cost, lawyer-friendly services that can make your practice more nimble and secure.
Voice calls, video conferencing, texting from any device
As attorneys move away from traditional landline phone service, Google Voice is a nifty alternative that retains many benefits of a traditional system, while offering the portability of a smartphone.
Navigate to voice.google.com and choose your free virtual phone number. Most popular area codes are available, including 312 and other Chicago-area numbers. (If your requested area code is not available, keep trying — new numbers come online every day.)
Once you install the Google Voice app on your smartphone, tablet and desktop, calls can be placed and received through the data connection on any of those devices.
If you want to keep your office line, you can still forward the office number to Google Voice and answer calls from any device. Better yet, all voicemail messages are transcribed automatically and forwarded by e-mail or text as desired.
Texting also works with Google Voice, which allows you to send messages from your computer, instead of pecking away on those tiny simulated keyboard keys on your smartphone.
All voice messages, texts and call histories are synced across all of your devices and backed up online, so your communications are safe if you lose or replace any device.
Finally, consider installing the Google Hangouts app for additional features. Hangouts works with your Google Voice number and can be used for video conference calls, phone calls, voicemails and texts from a user-friendly platform.
Remotely access your office desktop from any device
If you have ever gone to court or a deposition without crucial information from your computer, or left for the day without that draft brief, Google’s Chrome Remote Desktop feature can save the day.
Using your Chrome web browser, install the Chrome Remote Desktop extension from the Chrome store, choose a secure password and set it up on your host (office) PC or Mac. Once you run the corresponding app on your tablet, smartphone and home computer, the office computer can be accessed from anywhere.
With the ability to remotely access programs, edit documents, forward them to your current device, and even view video, you will have 24/7 access to your vital office data.
Automated internet search results
For those who regularly monitor the web for new developments in a particular area, Google’s Alerts service can make the process pain free. Proceed to google.com/alerts, set up your search — for instance, “Illinois Supreme Court Rules + amendments” — and you will receive periodic e-mails with links to your automated search results.
You can schedule the search results to be sent in real time, daily or weekly. Add as many different searches as desired.
Using the Alerts feature is a good way to stay current in your practice area or keep tabs on friends and colleagues. Let Google do the heavy lifting and stay on the cutting edge.
Online translations
Google Translate does not supplant professional language translations, but the free service can be useful in a variety of settings.
If you come across a document in discovery and need a quick translation, for example, go to translate.google.com. Paste the text from your document, or upload it, and receive the English version instantly. Or convert from English to any other language as desired.
If you come across an unknown language, paste the text and use the “detect language” option. The program will try to recognize and translate.
Access the program through the Chrome browser, and you can translate full websites simply by entering the website address.
Finally, in a pinch, you can even communicate with clients or witnesses, by exchanging written questions and answers through the online interface.
Free online case law, journals
Google Scholar cannot fully replace your paid research subscription, but the service includes an impressive volume of cases. At scholar.google.com you will have access to published opinions of state appellate courts going back to 1950, federal district, appellate, tax and bankruptcy courts from 1923, and virtually all U.S. Supreme Court cases.
If your basic search retrieves too many cases, click the arrow in the upper right side of the page to use advanced search settings.
Move over to the articles database and peruse a vast number of law journal articles and other periodicals.
Remotely locate, lock, erase your smartphone
Smartphone security is always a concern for lawyers. Google’s Android Device Manager can provide a measure of comfort.
Just sign into your Google account on your phone and install the Android Device Manager app. If your phone is lost but is still turned on, you can access and control the device. Log into your Google account from any computer, proceed to google.com/android/devicemanager and get a location that is accurate within 75 feet.
You can also remotely ring your phone, lock out any users, set a new screen lock password and place a recovery message on the locked screen with your contact information.
As a final security measure, you can remotely erase the phone’s data.
In sum, if you have not yet considered these free tech-goodies, open a Google account and take them for a spin. They can give your practice a lift.
© 2016 Law Bulletin Publishing Company. All rights reserved.
Thursday, December 8, 2016 • Volume 162, No. 240
Reprinted with permission from Law Bulletin Publishing Company
Glenn E. Heilizer, “Sole Speak” Column
glenn@heilizer.com
In re Himmel: Solo discusses the seminal case that bears his name
In its 1988 In re Himmel decision, the Illinois Supreme Court announced that lawyers with nonprivileged knowledge of an attorney’s misconduct must inform the Attorney Registration & Disciplinary Commission — even if the knowledge is gained from a client who does not want it disclosed. 125 Ill. 2d 531.
The Himmel duty is now an established standard, but the opinion’s far-reaching consequences were novel at the time and set the legal community ablaze. The controversial case has been analyzed by courts, debated by commentators, embraced by some state ethics commissions, and rejected by others.
And what of James Himmel, the young sole practitioner who found himself in the middle of a firestorm all those years ago?
Himmel shares his perspective on this landmark ruling and how it impacted him personally.
Protecting the client’s interests
By all accounts, Himmel faithfully served the interests of his client, whose settlement proceeds from a motorcycle accident were stolen by her former attorney.
The theft was obvious misconduct, but the state’s client protection program was still years in the future, and an ARDC investigation could have impeded recovery of the purloined funds. Therefore, the client instructed Himmel to pursue the former attorney directly, without contacting the ARDC.
Himmel recovered more than half the remaining balance from the rogue lawyer. Under the repayment arrangement, Himmel and the client agreed not to bring civil or criminal charges, or contact the ARDC, if the settlement payments were made.
Himmel next obtained a court judgment when the payments stopped, but no further funds were collected. Having agreed to take no fee until the client had a full recovery, Himmel was not paid for his work.
ARDC Review Board recommends no charges
When the ARDC filed a complaint for not reporting the theft, Himmel “had no idea what was coming.” He acted in his client’s best interests and at her direction and believed it was simply a matter of explaining the facts.
The ARDC proceedings seemed to confirm Himmel’s view that his duty to the client outweighed any obligation to report.
Initially, the hearing board determined the ARDC should have been contacted, but noted Himmel obtained a good result for the client for no fee and recommended a private reprimand.
Next, the review board moved entirely in Himmel’s favor, with a no-discipline recommendation. The review board explained that the client already contacted the ARDC before she retained Himmel, and in any event, Himmel properly obeyed the client’s instructions not to make a report.
Supreme Court declares duty to report outweighs client’s interests
On final review, the Supreme Court stunned Himmel by disregarding the review board and imposing a one-year suspension.
Whether the client directly contacted the ARDC was “irrelevant,” the court said, because “the actions of a client would not relieve the attorney of his own duty.”
On the question of attorney-client privilege, the court applied a strict evidentiary standard and denied the privilege because (1) the client’s mother and fiancé attended client meetings; and (2) Himmel discussed the theft with third parties, including the company that issued the settlement check and the lawyer who stole the funds.
Finally, the court brushed aside Himmel’s duty to obey the client’s instructions. On this pivotal point, the court merely noted that a lawyer “should assist in maintaining the integrity and competence of the legal profession” and “may not choose to circumvent the rules by simply asserting that his client asked him to do so.”
Himmel was not alone in his shock at this result. According to a commentator, “Himmel was a dramatic surprise to the bar.” Ronald D. Rotunda, “The lawyer’s duty to report another lawyer’s unethical violations in the wake of Himmel,” 1988 Ill. L. Rev. 977, 991 (1988).
Warning to the bar in the wake of Greylord
Given the lack of precedent, the Supreme Court’s suspension of Himmel is perplexing. Just three months earlier, the court discharged ARDC complaints against a group of attorneys who made loans or gifts to judges. Although each lawyer violated the disciplinary rules, the court found they “acted without the guidance of precedent or settled opinion” and “could not have been aware of the construction that we have, for the first time, placed on that rule in this opinion.” In re Corboy, 124 Ill. 2d 29, 45, 49 (1988).
The Himmel court justified the suspension by citing aggravating factors, but the analysis appears to be a stretch.
First, the court decided that Himmel’s agreement not to notify the ARDC or bring civil or criminal charges — in return for the settlement payments — somehow amounted to interference with an ARDC investigation and “compounding a crime” under the criminal code. Second, the court speculated that timely reporting might have “spared” other citizens from the fraudster-attorney’s misconduct.
Himmel’s severe sanction might best be understood as a response to Operation Greylord, a task force investigation that netted dozens of corruption convictions against Illinois lawyers, judges and other officials from 1984 to 1993.
Himmel put the Illinois bar on notice that failing to report lawyer misconduct would not be tolerated. See William J. Wernz, “To report or not to report, bench & bar of Minnesota” (December 1988) (“Himmel had nothing to do with Greylord, except that it seemed intolerable that many Chicago attorneys had been aware of corruption without reporting it. Himmel may have suffered for the sins of others”).
Regardless, Himmel had its intended impact. Per the ARDC’s annual report from 1989 — the first year after the decision — total reports of misconduct increased by 877 and 922 of those reports were made by attorneys.
Surviving the aftermath
Although the passage of nearly three decades has tempered Himmel’s perspective, he still recalls how the case upended his life.
As the sole supporter of his wife and three young children, Himmel unexpectedly found himself without employment. He obtained modest work as a real estate closer with a title company and was forced to fill the financial gaps with loans from family members.
Moreover, virtually overnight Himmel lost his privacy and became a reluctant celebrity of sorts. For 28 years, countless lawyers, and even judges, have asked: “Are you that guy?” Worse yet, his surname was co-opted by the legal profession, where judges, attorneys, academics, and even the ARDC, now routinely refer to a lawyer’s “Himmel obligation” or “Himmel duty” to make a “Himmel report.”
Nor was it easy to resume his real estate and divorce practice, which took more than two years to rebuild. To this day, Himmel finds himself on occasion explaining the case to prospective clients, who sometimes ask if he was “disbarred.” Experience has taught Himmel to keep a printed synopsis of the case at hand for such occasions.
Despite the hardships, Himmel expresses satisfaction that mandatory reporting of misconduct has improved the profession and served the public interest. According to the ARDC’s 2015 annual report, an average of nearly one-quarter of all formal disciplinary cases over the prior 13 years include at least one charge arising from a judge’s or lawyer’s report. Himmel is proud his case has helped “maintain[] the integrity and competence of the legal profession,” as envisioned by the Supreme Court.
In the end, Himmel said, “time heals all wounds,” and the decision is now a footnote in his long career. As he faced the inevitable ups and downs of practicing law over the years, Himmel has learned that “things happen — you just have to deal with them and move on.”
“Still,” Himmel concluded with a chuckle, “it would be nice to have a penny for every time my name has been mentioned.”
© 2016 Law Bulletin Publishing Company. All rights reserved.
Monday, November 14, 2016 • Volume 162, No. 223
Reprinted with permission from Law Bulletin Publishing Company
Glenn E. Heilizer, “Sole Speak” Column
glenn@heilizer.com
Giving your clients more choices by taking credit card payments
If you have shied away from accepting credit card payments for your solo firm, you are not alone.
Some practitioners question whether taking credit cards is permitted, as the Rules of Professional Conduct do not expressly address the topic. Others assume the process is too complicated to set up or dislike the hefty per transaction charges. Still others may consider it unseemly for lawyers to use a payment method typically used to buy widgets at the local hardware store.
Accepting credit card payments makes plain sense. Not only will your clients appreciate having the option, but consider those who are short on cash, with legal issues that require prompt attention. Allowing credit card payments could make all the difference to clients in need, while minimizing your fee collection efforts.
If credit card payments are a possibility for your practice, here are some ethical snags to avoid and a description of the company I selected to handle my transactions.
Credit card payments allowed by “consensus of authority”
Although the Illinois Rules of Professional Conduct do not specifically authorize the acceptance of credit card payments for legal fees, national and state organizations recognize their legitimate use, subject to compliance with other ethical rules.
The Attorney Registration & Disciplinary Commission’s 2015 Client Trust Account Handbook for example, cites to ABA Formal Ethics Opinion 00-419 and notes that the use of credit cards to pay legal fees and expenses is supported by “the general consensus of authority.” The Illinois State Bar Association reaches the same conclusion, through Advisory Opinion 14-01.
Required client disclosures
Attorneys who accept credit card payments for work performed must make certain client disclosures.
First, credit card payments are processed by third-party services, which not only learn the client’s identity but also may have access to descriptions of services, or in the event of a “chargeback” dispute, additional disclosures about the representation. Professional Conduct Rule 1.6 requires informed client consent before such details are shared with third parties.
Second, credit card transactions have costs. Although some states prohibit lawyers from passing those costs to the client, ISBA Advisory Opinion 14-01 suggests a client’s payment of a reasonable service fee does not violate the Rules of Professional Conduct. For all fees and expenses chargeable to the client, Professional Conduct Rule 1.5(b) requires disclosure.
Thus, you should include provisions in your retainer agreement to address client confidentiality, and if you intend to have the client pay a service fee — consider paying the charges yourself for simplicity and goodwill — make that disclosure as well.
Additional obligations for Interest on Lawyers Trust Accounts payments
Accepting retainer payments by credit card carries additional ethical responsibilities.
First, make sure your account is set up to ensure every retainer is deposited directly into your Interest on Lawyers Trust Accounts, or IOLTA, account, without exception, in accordance with Professional Conduct Rule 1.15.
Second, do not pay credit card costs from your IOLTA account, because any deduction would impermissibly reduce the client’s retainer balance in violation of Rule 1.15(c). Although Illinois State Bar Association Advisory Opinion 14-01 suggests Rule 1.15(b) allows lawyers to deposit sufficient funds in the IOLTA account to cover those amounts, Rule 1.15(b) only authorizes deposits for “bank service charges” and does not mention credit card charges. The safest course, therefore, is to pay credit card expenses exclusively from your operating account.
Third, be prepared for a potential chargeback situation, where the client disputes the payment and requests its return from the credit card company. Trouble will ensue if, for instance, MasterCard tries to charge back your IOLTA account, but the funds have been withdrawn. Use a credit card processor that is prepared for this contingency.
Choosing a credit card processor
Although a number of credit card processors provide manual card swiping, I wanted a service that allows clients to make secure payments through the web, instead of meeting in person to process a card. That left roughly six companies catering to attorneys with online card payment portals for clients.
Of this smaller group, I selected LawPay, a popular provider endorsed by the ABA and more than 40 state bar associations, including Illinois’.
My initial call to LawPay was promptly returned by an account rep, who thoroughly described the process and addressed my concerns regarding ethical issues. With IOLTA payments, for example, I was assured that all fees are taken from the operating account, to avoid any escrow deficiencies. Also, if a client disputes a payment, LawPay has dedicated staff to address the chargeback request with a process to protect against any deficit if a payment is debited back from the IOLTA account.
Setting up my LawPay account was painless. After I provided basic account information through the company’s secure site, a service rep took me through an online training session, where a sample $1 client payment was actually posted to my account.
The payment process is straightforward, both for lawyer and client. After billing the client directly — or through services that integrate with LawPay such as Clio or Abacus — the attorney initiates a payment request to the client through LawPay’s dashboard. The client receives a link to a secure payment page for the account you designate.
Once the client pays — again, through a simple, secure online web page — you receive an e-mail notification and the funds are available within one or two business days.
Regarding costs, credit card processing services are not cheap, and although LawPay is no exception, the prices appear to be in line with other providers that market to attorneys.
LawPay offers three plans, based on your needs: a low-volume, operating-account-only plan; a higher-volume plan where you designate a single depositary account, either operating or trust; and a dual account plan that allows payments into both operating and trust accounts, as you designate.
The introductory plan costs $5 per month and carries a 3.5 percent processing fee on all amounts paid. The latter two plans have monthly charges of $15 or $20, with a lower 1.95 percent processing fee for nonspecialty cards (e.g., Visa, MasterCard, Discover), a 2.95 percent processing fee for specialty cards (e.g., American Express) and 20-cent charge per transaction.
Every LawPay plan is month-to-month, with no long-term contract, and LawPay occasionally offers a three-month free trial period for some of its plans.
In sum, although taking credit card payments has its complexities and costs, sole practitioners who offer this option can better serve their clients, improve collections and be more competitive in the legal marketplace. And, using an online service can make this process safe and easy.
© 2016 Law Bulletin Publishing Company. All rights reserved.
Wednesday, October 12, 2016 • Volume 162, No. 200
Reprinted with permission from Law Bulletin Publishing Company
Glenn E. Heilizer, “Sole Speak” Column
glenn@heilizer.com
Your firm may be small, but don’t think you are safe from cybercrime
Still using that old “myname-law@yahoo.com” e-mail address for your solo firm? Do your online accounts have easily remembered passwords such as a pet’s name or a significant date? Ever conduct business on public Wi-Fi at the local coffee shop?
If you think hackers stalk only large law firms, think again. Internet predators are working 24/7 to steal information belonging to lawyers and their clients. Sole practitioners who lack proper safeguards can be prime targets.
Data breaches may lead to monetary and reputational losses, and under the recently promulgated disciplinary Rule 1.6(e), lawyers can be sanctioned for not taking reasonable steps to prevent unauthorized access to client information.
Longtime practitioner Michael Hannigan, a member of Konicek & Dillon P.C., defends lawyers accused of professional negligence and triages the damage caused by cyberattacks. Hannigan explained that most self-employed attorneys do not have data security specialists on staff and thus must be extra vigilant in anticipating and avoiding security lapses.
Wire transfer schemes, ‘ransomware’
Although cyberschemes constantly evolve and adapt, Hannigan described two emerging online frauds that could paralyze a solo practice: diverted wire transfers and “ransomware” that locks down your computer.
Wire transfer swindles single out attorneys whose clients move money electronically. The fraudster hacks the lawyer’s e-mail account and monitors upcoming transactions. When the lawyer e-mails wire instructions to the client, lender or transmitting bank, the e-mail is intercepted and replaced (or “corrected”) with false instructions to a rogue account.
By the time the scam is discovered, the funds have been withdrawn and the thief has disappeared.
Ransomware is malicious software unknowingly downloaded from seemingly innocuous websites or contained in e-mail attachments that may masquerade as PDF files. The self-installing program encrypts or locks down the victim’s computer, which can only be opened with a password supplied by the attacker, in return for substantial payment.
Your grim choices are to pay the hefty ransom — possibly more than once — or lose all access to your system.
Thwarting hackers, securing data
Hannigan cautioned that all sole practitioners should hire a qualified IT security consultant, who can implement appropriate safeguards for your particular practice. In the interim, there are basic measures that may keep web intruders at a distance.
- Verbal confirmation for wire instructions. When it comes to electronic fund transfers, low-tech security is best. Require the transmitting bank to obtain your verbal confirmation for all wire transfers.
- Security suite programs on all devices. The traditional firewall-antivirus programs now have more expansive protections that avoid malicious websites and screen potential downloads for security threats. Whether you choose Norton, McAfee, Kaspersky or another product, make sure all your computers, tablets and smartphones are protected and download the updates regularly to stay current.
- Password manager. Your online accounts require random, complex passwords that meet today’s security protocols. LastPass has a free version that will generate secure passwords, maintain them in a “vault” in the cloud and even autofill when desired for ease of use. If you prefer a password manager-generator that resides only on your desktop, Password Safe is a free program that can fit the bill.
- Two-factor authorization. Many web-based services offer a further layer of security beyond the typical username and password, by texting an additional required code to your phone. For an unofficial list of companies that offer two-factor authorization, check out twofactorauth.org.
- Back up your data. Avoiding the damage of a ransomware attack is just one of many reasons to back up your data. Although many firms choose the cloud storage option, local backups can be made to physical external drives as well. Each method has its pros and cons, but regardless, backing up your data is a must.
- Avoid open source e-mail accounts. The FBI warns that free e-mail services may carry an increased risk of attack. If you are still using AOL, Yahoo or Gmail for your solo practice, it is time to acquire a unique domain name for your firm and establish e-mail accounts under that domain.
- E-mail encryption. E-mail encryption is an ultra-safe way to communicate with clients, but it does require the exchange of digital signatures with recipients to decrypt messages. ProtonMail offers a free option with limited storage and use of the protonmail.com domain, or for $5 per month, users receive ample storage and can import their own domain.
- Web-based, attorney-client portals. For a one-stop option that packages a number of the above safeguards, consider a web-based program designed for lawyers. For example, MyCase offers a client communication, document management, billing and calendar system, where attorneys and clients securely store, share and download information about their cases. With a monthly fee of $39 per attorney, the service is well-suited to sole practitioners and a free, no-obligation 30-day trial is available.
Hannigan’s parting advice to sole practitioners? Develop a mindset that makes data security an absolute priority, and be proactive. Hackers are attempting new invasions every day. Lawyers cannot afford to be complacent. Stay informed and incorporate updated security measures into your practice as they come along. And, for goodness’ sake, avoid public Wi-Fi.
(For more information on these and other strains of cyberfraud, or to report one, visit the FBI’s Internet Crime Complaint Center at ic3.gov.)
© 2016 Law Bulletin Publishing Company. All rights reserved.
Thursday, September 8, 2016 • Volume 162, No. 176
Reprinted with permission from Law Bulletin Publishing Company
Glenn E. Heilizer, “Sole Speak” Column
glenn@heilizer.com
Recalling a sole practitioner; he gave to others and loved the law
Inevitably, attorneys who practice for any length of time experience the loss of colleagues along the way. With a large and active legal community, we do not always keep in touch and consequently may not learn of a fellow practitioner’s illness or death until well after the fact.
We should make a point of remembering the contributions of departed lawyers who enhanced our profession through their work.
This column honors the memory of Jason Bruce, a sole practitioner who quietly passed away three years ago, at age 49. Jason was not a splashy lawyer or a headline seeker, but he practiced law with grit, devotion and generosity to clients, peers and community.
When Jason and I met as young associates at Jenner & Block, he had a Stanford Law Review pedigree, a great attitude and a strong work ethic. Although he enjoyed the large firm environment where he worked on complex bankruptcy matters, Jason always wanted his own practice. After several years he pursued his dream, setting up an office on 53rd Street in the heart of Hyde Park.
Passion for social justice
Jason flourished as a sole practitioner, and his career spanned more than two decades. Although he handled a steady complement of business matters, Jason often passed more lucrative opportunities to help “the little guy.”
He was known to take cases with long odds and reduced financial incentive, because he felt his clients deserved equal treatment and were entitled to their day in court.
In service of persons in need, for example, Jason doggedly pursued civil rights and discrimination cases against large institutions. He also represented defendants in serious criminal cases, and in one instance, he won a reversal of a murder conviction based on procedural missteps at trial.
Jason was not afraid to go all the way for a client once he accepted a case, such as the time he took a modest city administrative judgment all the way to the appellate court.
Due to Jason’s magnetic personality and his willingness to help, he became a well-known fixture in Hyde Park. His brother, James Bruce, recalls numerous strolls down 53rd Street, where passers-by would greet Jason as the “Mayor of Hyde Park” or simply the “Attorney.”
Giving back to the legal community
Beyond helping clients, Jason took seriously his obligations to the legal profession. He was proud to serve on the Attorney Registration & Disciplinary Commission Hearing Board. He also taught trial advocacy to students at the Edwin F. Mandel Legal Aid Clinic at the University of Chicago Law School.
Jason additionally assisted up-and-coming attorneys, such as Deborah B. Cole, who formerly maintained her own practice in Hyde Park. Cole, now a veteran member of the estate planning group at Hoogendoorn & Talbot LLP, remembers Jason as “a very smart guy” who was “always willing to help.”
Cole credits Jason with teaching her the importance of early and thorough case evaluation. Listen to the client’s version of events, he would say, but also make your own investigation, so that the client receives your best analysis based on the most accurate information.
Another acquaintance, Craig Truitt of Truitt, Brown & Truitt in Hyde Park, recalls Jason as a razor-sharp attorney who appreciated the independence of a solo practice and also valued time spent with family.
Jason even supported other lawyers through software development. As a self-taught programmer, he developed two free smartphone apps that downloaded the Chicago landlord-tenant ordinance and the Federal Rules of Civil Procedure for on-the-spot use in court.
Helping the neighborhood, winding down
As a neighborhood activist, Jason seemingly was everywhere. He served as president of the Hyde Park Chamber of Commerce and helped organize a Hyde Park street festival. He also somehow found time to serve on the boards of the Hyde Park Co-Op, the Harper Court Foundation and the Blue Gargoyle Youth Service Center.
Jason was a private person and did not want other lawyers to know about his illness. He continued to operate his practice, without assistance, even though the work took its toll on his fragile health. “He went on by sheer strength of will,” said his brother James, because “he felt he owed it to his clients and his family.”
In Jason’s off time, his brother remembers, he “enjoyed the simple pleasures,” such as spending quality time with his wife and two sons, or having a good cup of coffee over a challenging game of chess at one of the many outdoor chessboards in Hyde Park.
He also was an avid reader and would gladly “debate any issue you wanted to take on.” He made the most his life, even when he knew his time was limited.
As we progress through our careers, it is important to keep selfless contributors like Jason Bruce in mind. He made a difference, and he is missed.
© 2016 Law Bulletin Publishing Company. All rights reserved.
Wednesday, August 10, 2016 • Volume 162, No. 156
Reprinted with permission from Law Bulletin Publishing Company
Glenn E. Heilizer, “Sole Speak” Column
glenn@heilizer.com
Several suggestions on making CLE more workable for solos
Mandatory Continuing Legal Education has been in effect in Illinois for 10 years. With Connecticut’s recent decision to get on board, similar programs now exist in 46 states.
Most commentators agree that MCLE, better known as CLE, promotes professionalism and competence with fewer discipline cases and increased public confidence in the legal profession.
Yet the state’s CLE program can be improved. The lengthy two-year reporting period induces some lawyers to delay their coursework, leading to a last-minute rush to attend classes on an indiscriminate, bulk basis.
With the large number of required credits, moreover, even the early birds may have difficulty finding enough quality courses that enhance skills or relate to their practice areas.
Current program requirements can be particularly difficult for sole practitioners. Accumulating 30 credits hours while managing a solo firm is not easy, and the most useful courses can be too expensive for a limited budget.
A few changes could improve the CLE experience for Illinois attorneys.
Limited topics, fewer hours, annual reporting periods
Under the current system, aside from mandatory ethics credits, lawyers have complete discretion to choose from thousands of classes. Not all courses are beneficial. Some suppliers offer 30-hour “bundles” of lower-quality presentations at rock-bottom prices of $100 or less.
In other instances, topics have little to do with CLE education, such as the regulation of hydraulic fracturing, or helping a client start a craft brewery business. Still other courses are far too remedial; for instance, a one-hour lecture on using PDFs.
Driven by economic pressures, or a need to fill the 30-hour allotment, lawyers may take ill-suited classes.
The CLE program should limit coursework to prescribed areas that relate to professional competence. Under Supreme Court Rule 795, CLE courses must offer “significant intellectual, educational or practical content” that serves to “increase each participant’s professional competence as an attorney.” A more targeted, mandatory curriculum would further those ends.
Reflecting this view, several states have mandated classes in areas beyond the standard professional responsibility requirements.
Minnesota and California, for example, have compulsory courses on the elimination of bias in the legal profession. Five states compel education on substance abuse. Oregon even requires its attorneys to take instruction on reporting child and elder abuse to the authorities.
Illinois lawyers, in general, and sole practitioners in particular, could benefit from a greater emphasis on coursework that enhances professional competence within the meaning of Rule 795.
With a limited course of study, fewer total hours are needed. More is not always better. Of the 46 state CLE programs, 32 require fewer credits than Illinois. The state’s 30-hour quota should be reduced.
Lastly, the current biennial reporting requirement should be converted to an annual period. Regulations and case law that govern the profession constantly evolve. It makes good sense to keep the bar up to date with yearly coursework in core areas that affect attorney competence. Illinois should join the 28 states that use annual reporting periods.
CLE credit through self-study, testing, mentoring
The state also should consider granting CLE credit through approved testing procedures.
In California, attorneys can earn up to half of their required credits through self-study programs, where lawyers read articles and take tests online. The price is modest, and each attorney’s mastery of the subject matter is demonstrated by the passing grade.
Taking tests for CLE credit makes sense on all fronts. The self-study and low-cost aspects make this option attractive for the sole practitioner.
Additionally, a mentoring process could be added to the CLE program, where experienced practitioners advise younger attorneys. Washington and Texas award CLE credit to mentors and proteges who participate in structured teaching plans.
Mentoring would be helpful to younger sole practitioners, who do not receive the forms of guidance offered by experienced counsels at firms.
Pro bono work for CLE credit
A final suggestion is to award CLE credit for pro bono work. At least 10 other states allow lawyers to obtain credit for pro bono service through specified programs.
The Rules of Professional Responsibility make clear that pro bono service is every attorney’s responsibility, but taking on such cases can be difficult for self-employed counsel.
By offering CLE credit for such work, the state can help sole practitioners meet this significant community need.
In sum, these modifications are worth a look. They could improve the CLE experience for Illinois attorneys and better equip them to meet the challenges ahead.
© 2016 Law Bulletin Publishing Company. All rights reserved.
Wednesday, July 27, 2016 • Volume 162, No. 146
Reprinted with permission from Law Bulletin Publishing Company
Glenn E. Heilizer, “Sole Speak” Column
glenn@heilizer.com