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DOCKET The Official Publication of the Lake County Bar Association • Vol. 26, No. 8 • August 2019
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Contents THE DOCKET • Vol. 26, No. 8 • August 2019
FEATURES
12 An “Xtreme” Surprise for Insurers? BY JEFFREY A. BERMAN
18 Title IX at Forty-Seven: A Brother’s Reflections on an Olympic Gymnast, a Track Pioneer, and a Nike Executive
A publication of the
BY JOHN E. THIES, ESQ.
20 Bring Ray Home! 300 Grand Avenue, Suite A Waukegan, Illinois 60085 (847) 244-3143 • Fax: (847) 244-8259 www.lakebar.org • info@lakebar.org THE DOCKET EDITORIAL COMMITTEE Jeffrey A. Berman,Co-Editor Hon. Charles D. Johnson,Co-Editor Jennifer C. Beeler Hon. Michael J. Fusz Hon. Daniel L. Jasica Sarah A. Kahn Kevin K. McCormick Hon. Raymond J. McKoski Tracy M. Poulakidas Stephen J. Rice Neal A. Simon Hon. James K. Simonian Rebecca J. Whitcombe Alex Zagor STAFF Dale Perrin Executive Director Jose Gonzalez Membership Coordinator Katherine Montemayor Office Manager
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BY TY ROHRER
What Can You Buy for $10? BY TONY PACIONE, LCSW, CADC
COLUMNS
2 President’s Page Should We? Shouldn’t We? BY STEPHEN J. RICE, PRESIDENT
8 The Chief Judge’s Page Understanding Hiroshima and Nagasaki 74 Years Later BY CHIEF JUDGE JAY W. UKENA
10 Bar Foundation Viva Mexico!
BY NICHOLAS A. RIEWER, PRESIDENT
28 The Meeting Minutes June 13, 2019
BY TARA R. DEVINE, SECRETARY 30 In the Director’s Chair Pull Out Your Calendar BY DALE PERRIN, EXECUTIVE DIRECTOR
LCBA EVENTS
IFC 2019 LCBA Office Rental Pricing 5 The Calendar of Events 7 Lawyer Referral Service 11 New LCBA Members 11 LCBA Office Space 21 Member Reception 24 2019 Civil Trials & Appeals Seminar 25 Cabo Raffle 26 LCBA Golf Outing 29 2nd District Appellate Justices Reception 32 Monthly Committee Meetings
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Should We? Shouldn’t We?
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his will likely be the longest President’s Page ever written. I fully believe that brevity is the soul of wit, but I also believe that you will find what follows interesting and unusual.
2019-2020 OFFICERS & DIRECTORS Stephen J. Rice President Hon. Patricia L. Cornell First Vice President Joseph M. Fusz Second Vice President Kathleen Curtin Treasurer Tara R. Devine Secretary Brian J. Lewis Immediate Past President Hon. Christen L. Bishop Katharine S. Hatch David R. Del Re Thomas A. Pasquesi Dwayne Douglas Daniel Hodgkinson
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The purpose of this page is to frame the debate about whether the LCBA should institute a discounted rate for government/ nonprofit (G/NP) attorneys. The LCBA Board has considered this question in years past, and in the last few months we have debated it with renewed vigor. Disagreement on the question has been passionate but respectful. By the time you read this, the debate will likely be over—at least for this year. Regardless of the Board’s decision, the following information will hopefully help you understand the dynamics, which are not straightforward. In conversations both internally and with LCBA members at large, the starting point of almost every discussion turns on what government attorneys earn vis-à-vis their private-practice counterparts. Another way of saying this is that the starting point is about equity: is it fair to give one class of at-
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torneys a discounted rate? In my discussions, this question is the proverbial elephant in the room. This starting point is both (1) immutable, by which I mean hardly anyone can focus on any other topic without first discussing it, but also (2) irreconcilable, because no matter how long we might talk about it, we will not reach a conclusion that has a proper foundation. By that I mean: speculating about what government attorneys earn versus Lake County-based private practitioners would never be admissible in a court of law. My opinion is that such speculation should also not drive our decision about whether to have a government/nonprofit rate. Other factors should drive that decision, which is not to say that the decision should be “yes” or “no.” There is plenty to debate even without the salary-equity argument.
BY STEPHEN J. RICE PRESIDENT Still, that elephant looms. I’m going to start with the elephant, and with something that is both unorthodox and a bit indecorous: I’m going to talk salaries. What makes this slightly less indecorous is that as a government employee, the County publishes my salary on the internet.1 So what I write here you could figure out for yourself, but I’ll try to make it easier to digest. What follows relates to me, but I stand essentially for any other government attorney in my position—I’m not unique. WHAT DOES A GOVERNMENT ATTORNEY EARN? I became an Assistant State’s Attorney (ASA) in 2010; my current salary is 1
State law has required that salary information for Illinois Municipal Retirement Fund-eligible employees be accessible since 2012. 5 ILCS 120/7.3.
$89,202. ASAs and Public Defenders have basically the same rates of pay, and any individual’s salary depends primarily on length of service, and somewhat (but only marginally) on promotions. I am not a supervisor—my salary might be about $15-20,000 higher if I were—but I have been promoted to the top non-supervisory level in the salary chain.2 My salary understates the total value of my employment for several reasons. Taking an employer’s/economist’s view of my salary, one should include benefits, which are primarily a pension and, a close second, health insurance. Factoring those in, my “salary” rises to approximately $107,041.3 The pension system in which municipal employees participate is called IMRF.4 Participants in IMRF receive mailings that express what an employee’s pension is worth, assuming the employee continued to work to 65 (one can receive benefits earlier, but with corresponding benefit reductions). IMRF 2
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Salaries in my job category—Principal Assistant Attorney—vary based on years of service. If I had spent my entire career to date in the SAO, I would likely earn just under $100,000, so you may see higher salaries in my class if you delve into the data yourself. The County estimates the total cost of an employee as salary x 20%, with the 20% equating to the cost of benefits. The Illinois Municipal Retirement Fund. Unlike like the state-run pension system, IMRF is not grossly underfunded (and claims to be nearly fully funded).
tells me that if I had to self-fund the value of my pension, I would need to save just under $1 million. So I’m a millionaire! Alas, if only $1 million was what it once was. To save that amount, estimated conservatively, starting at age 30, one would need to save about $10,800 annually— tough with student debt, a mortgage, and kids, but certainly doable once one is mid-career.5 My pension is valuable, but it is not a Golden Parachute in any sense. (The ordinary IMRF pension is far removed from the scandalous exceptions that you read about in the newspaper.) This still understates my benefits for at least two primary reasons. First, the County’s health insurance plans are generous, though not free. My wife works for a large corporation with fairly generous health benefits, but they do not equal mine at the County, so we use the County’s and annually pay $2,574 for the benefit— the County essentially covers the rest, although like other employers, the County has been progressively shifting some costs to its employees. There is a big caveat that applies to my wife and I, who have no children. We are on the County’s two-person plan, not the full family plan. The full family plan costs more, but the benefits are also 5
Feel free to run your own calculations: https://www. bankrate.com/calculators/ savings/save-million-calculator.aspx. I assumed a 35-year career (age 30-65) with a 5% expected rate-ofreturn and 2% inflation.
likely better-than-average, compared to the private sector. This is especially true compared to the private sector as it applies to small businesses, which all Lake County law firms are. The County—like any other large corporation—has considerable bargaining power when shopping for health plans. It has the resources to hire consultants and other experts to assist it. This is unlikely the case for most solo practitioners or small firms, which must navigate the private insurance markets in the U.S., such as they exist. And those markets have been in considerable flux for over a decade. I thus do not consider my health insurance benefits to be calculable in dollars alone; they are, in fact, much more valuable than the dollars themselves. I also do not have to worry about them, as I would have to do if I were in private practice. I have spoken to private practitioners who tell me that they pay more than $20k to insure their families annually, and I assume that the benefits they receive for that amount likely do not equal mine. Newsflash: this is a big American issue, to say the least. The second “understatement” of my benefits is vacation: I get three weeks, plus all court holidays, which adds another week. I will eventually get four weeks. It is not quite European (as a 27-year-old working in Germany, I had six weeks, plus many state and national holidays), but if I consider it next to what private practitioners might “afford” them-
selves—well, it’s basically European. Also, when I take a day off, I’m paid for it, versus losing a day of billable hours. I’ll stop here, although there are many other benefits of working for the County (some of which are similar to the benefits one receives in the private sector, others not). You can peruse them at your leisure at the link here,6 and I recognize that many may seem almost utopian to a small-firm practitioner. One final “benefit” I will mention: my salary rises each year by about 2.5%. Such raises are historically what the County Board has authorized. These are modest—my salary increases have consistently underperformed my friends’ private-sector increases— but is it conceivable that those friends could lose their jobs? In corporate America, it is well conceivable. Me? It’s possible, but I don’t lose sleep over it like my friends in the private sector do. Even the Great Recession in 2007 did not cause layoffs, although it did lead to staff reductions in other ways (my SAO Division has two fewer attorneys than it used to). Without question, I have greater job stability than someone in private practice. So what is my $107,041 actually worth? That question ultimately depends on what you value. 6
The County must compete for employees like any other employer, and thus outlines the benefits of working for it here: https:// www.lakecountyil.gov/3552/ Prospective-Employees.
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For example: a German friend of mine named Carsten once worked for a pharmaceutical company in New Jersey for a year. His company transferred him from the Munich office to New Jersey, and he kept his German salary and his German benefits. An American colleague of his—same job; same level—at one point light-heartedly complained to him that Carsten was constantly taking vacations to travel around the country. Carsten put the following question to him: my German salary is 10% smaller than yours (and taxed more heavily, too), so would you forgo 10% of your salary to get the vacation benefits I have? His colleague’s emphatic answer: “No way!” To each his own. What salary would pry me out of government employ and into private practice? I’m not sure. I have a brotherin-law who works for one of the leading Silicon Valley law firms, and whose bonus alone exceeds my entire salary. I would not change places with him (although I do not purport to be as capable as he is, either). Many others would make the opposite choice. To each her own. SO WHAD’YA KNOW? (NOT MUCH.) What does the information above tell us about how government attorneys fare compared to their Lake County-based private practice counterparts? The answer is “something,” but not much. If you are reading this in private practice,
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then you have anecdotal knowledge, because you can obviously compare your earnings and benefits to what I’ve outlined above. But how your earnings compare to others in Lake County practice remains shrouded—at least, I’m unaware of any reliable data on it. Glassdoor.com, which tracks salaries, lists under the rubric “Attorney Salaries in Chicago, IL Area” a figure of $114,136. But it’s impossible to know how a Lake-County based attorney fits into that figure, which likely encompasses a lot of Chicago-based practitioners. It would be very interesting but difficult to do a survey of Lake County-based private practice salaries. If someone has a method, I’m all ears. Also, despite what stands above, you still know nothing about my personal financial life from which you can draw any real conclusions about my financial means. First, I’m married to a working spouse; second, I’ve told you nothing about my “burn rate,”—i.e., what kind of a spender am I? Am I more of a live-in-a4,000-sq.-ft.-house in Lake Forest guy, or a drive-usedHondas one? I’ve told you I have no children, but my similarly situated colleagues typically have kids. Am I a good saver or a burn-it-at-both-ends spender? You don’t know. What can I afford and what can’t I afford? Objection sustained. You also do not know what student debt I carry, although you might reasonably surmise that I and
my younger colleagues do. The U.S. News website reports average student debt numbers for schools nationwide.7 Of the schools most commonly producing Chicago-based attorneys, the number is $110,998. That’s the average, and just for law school, not law school plus college. Many young attorneys carry much higher debt loads. $110,998 is a bit less than one-half of the price of the average house in Lake County.8 But while mortgage rates have been low for a decade, student loan rates are not similarly low, such that young attorneys shouldering student loan debt are often likely paying mortgage-like sums to service their student loans.9 In a website trafficked perhaps most heavily by BIGLAW associates, the topic “Will you ever be able to pay off your law school debt?” netted some intriguing but anecdotal Twitter responses, for what they’re worth.10 Particularly if you 7 https://www.usnews.com/ best-graduate-schools/ top-law-schools/grad-debtrankings. News reports, often citing ABA surveys, report roughly similar figures, which you can google yourself. The crisis in law school attendance (and tuition) certainly affects how the number has been growing—or not. 8 At least according to Zillow, which pegs it at $238,600. https://www.zillow.com/lakecounty-il/home-values/. 9 Unless they are using income-based repayment plans. Suffice it to say, there are a lot of variables we cannot know. 10 https://abovethelaw. com/2017/09/will-you-everbe-able-to-pay-off-your-law-
are an older attorney who paid reasonable rates for college and law school, the situation students now face is not similar to yours (although many of you may be experiencing the pain through your own children’s expenses). Your lack of clarity about what my financial health encompasses (and I stand here as just one example of any other government attorney), combined with unclarity about what an average Lake County private practitioner earns, is the basis for my “foundation” objection on the “is a reduced G/NP rate fair?” question. I have heard—(sustained!, although numerous practitioners who run their own firms have told me this [sustained I said!])—that many small firms in Lake County essentially peg their associates’ salaries to what young government attorneys earn.11 And that makes sense, frankly: just by numbers alone, the quantity of young Lake County ASAs and PDs does somewhat naturally set the market. Do the salaries of associates increase like those of government employees? I don’t know, but I assume they grow faster, if only because an associate attorney bills progressively higher hours and rates as time passes, or gets laid off. But I’m speculating. Sustained!
school-debt/?rf=1 (Sept. 26, 2017). 11 There is a current Public Defender posting for $57,834, which I believe is was what it was in 2005.
ELEPHANT ELEPHANT ELEPHANT ELEPHANT. What I’ve written above seeks to establish the following: speculating about what government attorneys earn vis-à-vis private practitioners is not a good foundation for making a decision about whether the LCBA should have a G/NP membership rate. (You might think that all the ink I’ve spilled here is a pretty poor way to avert your gaze from the Pachyderm, though!) In my conversations with LCBA members, there is no way to avert your gaze. What’s more, financial/equity concerns are valid, and they are sort of hard-coded into our American brains. Whether we will admit it or not, we are always comparing ourselves to others, and money is one way we do that. So the elephant remains, like the question at trial that a jury is instructed to disregard: can that bell really be un-rung? Probably not, but I would urge you to put the elephant into greater context and give it the weight it deserves. MONEY ASIDE, WHAT OTHER REASONS ARE THERE TO HAVE A GOVERNMENT/ NONPROFIT RATE? Playing judge, I sustain your objection that G/ NP attorneys are less able to afford LCBA membership rates and should thus receive a discounted rate. We do not know that; we are merely speculating
about it. It is not at all clear that government attorneys are, per se, less able to afford a $305 LCBA membership. So why else might a Bar Association institute such a rate? After all, many have them, including perhaps our closest county cousins, DuPage, Kane, and Will. First, the value proposition of an LCBA membership is different for a G/NP attorney. Such employees do not need to generate business—our “clients” do not pay us, nor do we ever want for them. While someone in private practice might pay for ten years of Bar dues with one solid client referral, that business rationale simply does not apply to government attorneys. Second, one way bar associations attract members is by offering free or low-cost CLE—something that otherwise costs an attorney money. Here too, State’s Attorneys and Public Defenders do not see that value, because both offices provide more than enough free internal CLE to satisfy their attorneys’ requirements. Both offices have training budgets, and those budgets are used for CLE. Out of the Public Defender’s budget, that office had been paying for LCBA membership for their attorneys. But this year, the Public Defender decided to stop doing so, and for a perfectly valid economic reason: with the same dollars being used for LCBA memberships, which not all of the Public Defender’s attorneys were making use of, that office
can provide CLE that will benefit everyone in the office. While we are sad to see 100% of our Public Defenders withdrawn from LCBA membership, we should not begrudge that office of its decision. It does, however, make a G/ NP rate now more compelling, I believe. A third possible rationale for reducing the rate for G/NP attorneys is that a State’s Attorney or Public Defender who pays for LCBA membership does so without being able to write off the payment as a business expense. While not all private practitioners may be able to do this either, many can, and it effectively makes membership for those in private practice cheaper than for those in government employ. Finally, there are approximately 100 government attorneys working in Lake County.12 Half of the courtrooms in our courthouse are dedicated to criminal law. Our Bar Association has about 900 attorney members, so 100 attorneys is just over 10% of our membership. I cannot tell you why the bar associations in DuPage, Kane, and Will counties have government rates— there is no “position statement” explaining it. But I can make an educated guess. A bar association that substantially loses a category of attorneys that practice in half of its courtrooms and makes up 10% of its ranks is a lesser association. Incidentally, 12 Approximately 70 ASAs and 30 Public Defenders.
it may also be an association with less revenue—in our case, only half of LCBA revenue comes from dues; the other half comes largely from members participating in our various programs. It is possible that an association does not need a Groupon-like incentive to motivate government attorneys to join; perhaps our brilliant programming and other member benefits will be enough to show those attorneys the value of membership. In fact, with no discount, about one-quarter of
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Calendar of Events
August 26 Anatomy of a Trial – Direct Courtroom T810 September 2 Labor Day LCBA Offices and Courts Closed September 5 2nd Annual LCBA Chili Cook-Off LCBA Member Center September 6 Shred Event, LCBA Parking Lot September 19 Family Law Mid-Year Seminar Jury Assembly Room September 24 Membership Luncheon Waukegan City Hall September 26 Member Reception Hosted by Fuqua Winter Ltd LCBA Member Center
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ASAs are LCBA members. But, to take just one example, Amazon does not just rely upon “the inherent value of Prime membership” to carry the day in getting people signed up for Amazon Prime. Rather, Amazon incentivizes people to sign up for Prime from time-to-time, sometimes by packaging new membership with a purchase of something, or other times by hosting Amazon’s “Prime Day” event. Companies know: if you prime the pump, you often create a revenue stream for years. One idea for a government rate could be the following: Currently, the first four years of LCBA
membership is already discounted at or below $170 (i.e., discounted below the full $305 rate). Practice years four and five have a rate of $230. The LCBA could extend the “discount” to G/NP attorneys through practice years 5-15, holding it constant at $199. After 15 years of membership, a G/NP attorney would pay the LCBA’s “rack” rates. There is a good reason to institute such a rate in 2019: we have just had the attorneys in the Public Defender’s Office withdrawn from our ranks; it is uncertain how many will choose to join out of their own pocket. It will necessarily be less than 100%, but it will likely be
as few as 7, which, coincidentally, is the percentage of State’s Attorneys who are members (i.e., about 25% of the office). Our criminal law committee, at the very least, will be much diminished without their participation. But I would argue that our Association itself will be much diminished. By the time you read this, the decision will likely have been made. I do not intend to subject my poor Board to this discussion longer than it has already gone—finality has its virtues. As you will surmise from this article, I favor a discounted rate, but it is a close call in my own head. Rate tweaks alone will not sustain our
association—only compelling programming and other member benefits will do that. I am an ISBA member not because I’m an Illinois attorney, but because there are certain benefits that make me think to myself annually: “that’s worth $405 to me.” The LCBA must perform similarly, or our membership will shrink, as many associations’ membership ranks are currently doing. Better programming is a must, but I favor a “Groupon”-like governmental/NP rate as well, at least for a test period. I will report again (and more pithily—I promise!) on the result. Also, I would welcome your constructive comments on this topic.
HEATHER L ROSING, DAUGHTER OF WILLIAM G. ROSING, ELECTED FIRST PRESIDENT OF CALIFORNIA LAWYERS ASSOCIATION Klinedinst Attorneys is pleased to announce that shareholder and CFO, Heather L. Rosing, daughter of long time Lake County attorney and LCBA member, William G. Rosing, has been elected President of the California Lawyers Association (CLA), the nation’s largest professional association for attorneys. In October of 2017, Governor Jerry Brown signed SB36 into law, effectively separating some of the professional promotion activities of the State Bar of California into CLA, a private non-profit entity. Effective January 1, 2018, San Francisco-based CLA is the new home of the Sections of the State Bar of California, as well as the California Young Lawyers Association (CYLA). From day one, CLA has over 64,000 members, ranking it in size second only to the American Bar Association. When factoring in the number of CYLA members, that membership number swells to over 100,000 California attorneys.
Heather L. Rosing SHAREHOLDER AND CFO, KLINEDINST ATTORNEYS PRESIDENT, CALIFORNIA LAWYERS ASSOCIATION
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LAWYER REFERRAL SERVICE
Why should YOU join the LCBA Lawyer Referral Service? The LCBA Lawyer Referral Service (LRS) is a valuable member benefit as well as a public service. LRS provides member attorneys with an opportunity to build business through client referrals. The service benefits the public by helping callers quickly find an attorney in the area of law in which they need help. The LRS is widely publicized and all LCBA members in good standing who carry the required malpractice insurance are eligible to join. The LRS program is designed to assist persons who are able to pay normal attorney fees but whose ability to locate legal representation is frustrated by a lack of experience with the legal system, a lack of information about the type of services needed, or a fear of the potential costs of seeing a lawyer. The Lawyer Referral Service is an intuitive win/win/win. We’re helping the public, by providing them with legal resources with some degree of reliability; we’re helping our members, by playing matchmaker with clients whom they can help for a minimal referral cost; and we’re helping the Bar Association and our public image by offering our services. Although not all of the matches will work out, the risks and costs are minimal and the rewards are great. Deborah Goldberg, Goldberg & Kane
“I have been a member of the referral service for many years, particularly in the fields of Trusts & Estates. The service has generated a stream of potential clients, some of which are not viable but many of which have ripened into clients for litigation or estate planning. Frankly, I don’t mind answering people’s questions about our field of law, which most people find confusing. The referral service has been a great way for potential clients to speak with me and discuss the issues before having to spend money and before I have to commit to the clients. I whole-heartedly recommend the LCBA’s Client Referral Service as a way to grow your practice.” Fredric Bryan Lesser, Lesser Lutrey McGlynn & Howe LLP As a long-time member of the LCBA Lawyer Referral Service I know how useful it is to be a member of the service. I have obtained several cases through the service and would strongly recommend that attorneys seeking cases join. Compared to the many online services that claim to provide cases, the LCBA’s referral service actually delivers at a much lower cost. Steve McCollum, Law Offices of Steven P. McCollum, P.C.
AVA I L A B L E R E F E R R A L PA N E L S • Administrative • Appellate • Commercial
• Consumer • Criminal • Employment
• Environmental • Family • Real Estate
• Estate Planning, Wills, Trusts and Probate • Personal Injury / Property Damage
C O N TA C T T H E L C B A AT 8 4 7 . 2 4 4 . 3 1 4 3 O R AT I N F O @ L A K E B A R . O R G
L A K E C O U N T Y L A W Y E R . I NJulyF2019O
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Understanding Hiroshima and Nagasaki 74 Years Later
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his August is the 74th anniversary of the last time a nuclear weapon was used during wartime, which came when the United States dropped two atomic bombs on the Japanese cities of Hiroshima and Nagasaki. Six days later, after an aborted military coup aimed at continuing the war, Emperor Hirohito announced the Japanese surrender in a public radio broadcast marking the end of the Second World War. Japan by that point had been at war with China for eight years, the United States for three and a half years, and with the Soviet Union for roughly a week. Historian Alex Wellerstein once said the bad version of the history of the dropping of the bomb on Hiroshima is pretty simple, “Japan was a suicidal and
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fanatical death cult of a state, the U.S. wanted to save lives and end the war, the U.S. dropped two atomic bombs and Japan surrenders shortly thereafter”. Nonetheless, while Wellerstein’s account adds to the standard narrative he leaves out some crucial context about the nature of the times and the world in which Harry Truman and other U.S. policy makers reached that fateful decision. Today, historians acknowledge the complexity of the questions raised and delve into what key policy makers of both sides did and did not know and believe in August 1945. First, the quote, “unconditional surrender” wasn’t Truman’s idea, it had been Franklin D. Roosevelt’s publicly declared policy for over two years, announced in January 1943 at the Casablanca confer-
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Chief Judge’s Page ence with Churchill, and had been followed to the bitter end with the Germans. Harry Truman in August 1945 had been in office all of four months. Truman certainly wasn’t shy about making his own decisions, this is the man whose motto was “the buck stops here”, but there was a lot of policy inertia behind the unconditional surrender policy. Franklin D. Roosevelt had seen it as important to secure Stalin’s confidence in the U.S. commitment to the war effort. Roosevelt had drawn unconditional surrender from Abraham Lincoln’s policies toward the Confederacy. Franklin D. Roosevelt understood the physical and economic crushing of the Confederacy had been key to why we never had another civil war. There never again was a question of rising up against the federal
BY CHIEF JUDGE JAY W. UKENA government of the United States. Franklin D. Roosevelt addressed this point on the 75th anniversary of the Civil War gathering at Gettysburg in 1938. In fact, the south did not rise again after 1865. Japan and Germany did not rise again in war after 1945. By contrast, a whole generation in 1945 was haunted by the fact that the Germans defeat in World War I had been insufficient to convince the vanquished not to take up arms again a little over two decades later. There also was the question of the “fanatical” Japanese defense of their homeland. The Germans had fought with cornered ferocity to the end on their own soil. The Japanese were not the Germans: they had no cultural precedence for surrender in war and no one in or out of Japan truly knew what
it would take to get Japan to surrender. The experience in Iwo Jima and Okinawa had seen Japanese casualty rates of men killed in action exceeding 90%, a figure unprecedented in the history of war. If anything, this represented an escalation of desperate fighting the U.S. had faced earlier in the war and convinced the American planners that every day of fighting until the end of the war could be more savage than anything seen in human history. Moreover, Victor Davis Hansen’s account dramatically illustrates that the Kamikaze barrage during the Battle of Okinawa was shocking to Americans on every level and entirely alien to the American experience of war. Okinawa was subdued only six weeks before Hiroshima. U.S. planners had hopes of a Japanese surrender, but in the meantime the reality of the Japanese suicide attacks and the prospect of an invasion of the Japanese homeland lead many to believe that such an invasion would have been staggeringly brutal and costly in lives, as was detailed by Paul Fussel in a 1981 New Republic essay on “The Bomb”. The ongoing atrocities that the Japanese were committing in China, and all the possible ways the war could end had to be considered. Dropping the atomic bomb seemed less shocking to people who had witnessed the atrocities of war. The atmosphere at the time was that
U.S. leaders defaulted to: whatever ends the war the fastest is the most humane. No American, perhaps not even Washington or Grant had seen worse combat more up close than Harry Truman, an artillery officer in the ghastly six weeks Meuse-Argonne offensive, the second bloodiest battle in U.S. history that ended World War I. Truman’s sense of war was visceral. He knew war well and that there was no substitute for ending it. Many say if Truman was harsh with the Japanese, he had a nation of grieving families behind him. Public opinion in late 1945 showed many Americans wish we had dropped more bombs. Dropping those bombs, right or wrong, did make a lasting peace and suggested Truman knew something we had forgotten about man and war. The atomic bomb was an equivalent force of 16,000 tons of TNT, about 70% of the buildings in Hiroshima were destroyed. Almost every structure in a 1.6kilometer radius of the bomb was completely obliterated. At 8:16 a.m. the morning of August 6, 1945 when the bomb nicknamed “Little Boy” was dropped, 80,000 people were killed immediately, followed by another 40,000 three days later when the second bomb was set on Nagasaki. There were also discussions that Americans also wanted to head off the Soviets given their rein of atrocities in Europe and history of Com-
munism. Harry Truman had to make the decision to bomb Japan faced with Soviet advances in many areas, and many felt that Truman wanted to overawe the Soviets with American power. It is hard to fault Truman for wanting to forestall
the Soviet advance with American power. Truman didn’t just have strategic decisions to justify, he had life and death choices to make. Truman did what the righteous fury of four years of bitter war demanded and made lasting peace.
July 2019
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Viva Mexico!
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iva Mexico! Every other year, the Lake County Bar Foundation hosts a biennial gala as our main fundraiser. As we are not doing the BOARD OF TRUSTEES Nicholas A. Riewer President Carey J. Schiever Vice President Joann M. Fratianni Secretary Perry S. Smith Jr. Treasurer Jeffrey A. Berman Immediate Past President Jennifer L. Ashley Nandia P. Black Douglas S. Dorando Kristie Fingerhut Hon. Fred Foreman (Ret.) Joseph M. Fusz Scott B. Gibson Kenneth J. Glick David J. Gordon Keith C. Grant Amy L. Lonergan Fredric B. Lesser Steven P. McCollum Joseph Morrison Michael G. Nerheim Melanie Rummel Hon. Henry C. Tonigan (Ret.) Hon. Joseph R. Waldeck (Ret.)
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gala this year, one of our main fundraising efforts is selling raffle tickets for a one week stay in a beautiful condo located in Cabo San Lucas. The lucky raffle winner will get to spend one week in the Presidential Suite at the Pueblo Bonito Sunset Beach Golf and Spa and Resort. The Presidential Suite contains two bedrooms, two bathrooms, a kitchen, dining area, living area and three outdoor terraces. The lucky winner will get to pick one week in 2020. The resort is located just a short cab ride west of downtown Cabo San
BY NICHOLAS A. RIEWER PRESIDENT Lucas. The downtown area includes many shopping destinations, restaurants and bars including Sammy Hagar’s Cabo Wabo. Many of the bars and restaurants in that area serve a beverage called “tequila” which, when consumed in massive quantities, makes you more attractive and desirable. If you Google Pueblo Bonito Sunset Beach Golf and Spa Resort you will be directed to their website which will describe the numerous fine dining options offered on site. Dining packages are available for purchase. The website
also describes numerous activities on-site and in the nearby area. We kicked off the raffle ticket sales at the summer party held on August 10, 2019. I do have a list of Bar Association members who did not attend which I plan on using to embarrass you into buying numerous tickets for the raffle. Speaking of the raffle tickets they are $25.00 each or five tickets for $100.00. That is a savings of (hold on, let me get my calculator out) $25.00. Our goal is to sell 200 5-packs of tickets which
would raise (hold on, let me get my calculator again) $20,000.00 which would be used for the charitable endeavors the Foundation supports. Please stop in the Lake County Bar Association office or contact them at
847-244-4134 to purchase your tickets. The winner will be drawn at the LCBA/ LCBF Holiday Party on December 6, 2019. Finally, I do need to point out that transportation is not included with the condo. I would
strongly suggest you fly to Cabo San Lucas instead of driving or walking. Apparently, there is some sort of wall that is difficult to get over if you are walking or driving. Good luck on the raffle!
Welcome
New LCBA Members Attorneys Maria Sanchez Attorney at Law John Ward Attorney at Law Dennis Decaro Kupets & DeCaro
Professional Debbie Johnson First American Title Ari Briskman Lake County Sheriff’s Office
Students Megan Vignocchi Emily Prazak Lesser Lutrey Pasquesi & Howe, LLP
Your New Office Could be in the LCBA Building
• Furnished • Approximately 2,000 square feet • Two blocks from the courthouse • Two private offices • Conference room
• • • •
Large reception area Men’s and women’s bathrooms Small kitchen Free parking for staff and clients
Available Now Contact Dale Perrin at dale@lakebar.org to view the property and get more details. July 2019
11
An “Xtreme” Surprise for Insurers?
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BY JEFFREY A. BERMAN
uilding on a foundation of earlier decisions, the First District has now clarified the scope of an insurer’s obligation to pay for independent defense counsel selected by its insured based on the existence of a conflict of interest.
The Court in Xtreme Protection Services LLC v. Steadfast Ins. Co.1 recently concluded that where punitive damages form a substantial portion of the potential liability and the insurer disclaims liability for punitive damages, the insured is left with the greater interest and risk in the litigation, and a conflict of interest exists. Under those circumstances, the policyholder is entitled to choose independent counsel to be paid for by its insurer. THE UNDERLYING LAWSUIT This matter involved both a lawsuit (the “Underlying Lawsuit”) and an action for declaratory judgment (the “Declaratory Judgment Action”). The underlying plaintiff, David Israel (“Israel”), sued Michael Bucon, James Adams, and Xtreme Protection Services LLC (“Xtreme”) (collectively “Defendants”), alleging assault and intentional infliction of emotion distress, in 1
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Xtreme Protection Services LLC v. Steadfast Ins. Co., 2019 IL (1st) 181501 (May 3, 2019).
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2016.2 Israel alleged that the Defendants placed listening devices in his office, attached GPS devices to his vehicles, and sent threatening or harassing text messages to him.3 Israel alleged that, as a result, he “sustained severe and permanent injuries, endured great pain and suffering, incurred medical expenses, lost time from work,” and suffered “severe emotional distress.”4 The complaint in the Underlying Lawsuit went through several iterations.5 The Third Amended Complaint, which was the operative pleading upon which the trial court based its decision, alleged claims of electronic eavesdropping, surveillance and sending threatening or harassing text messages, federal wiretapping, eavesdropping, intrusion upon seclusion, intentional infliction of
Jeffrey Berman, of the law firm of Anderson + Wanca, has extensive experience in complex commercial litigation, insurance and insurance coverage litigation matters in state and federal courts across the country. He presently serves as a Co-Editor of the Docket.
2 3 4 5
Id. at ¶ 5. Id. Id. Id. at ¶¶ 6-7.
emotional distress, and trespass.6 The complaint generally sought compensatory damages in the amount “not less than $30,000,” punitive damages of $1 million in each of two counts (Intrusion Upon Seclusion and Trespass), and $50,000 in each of two other counts (Intentional Infliction of Emotional Distress and Outrage).7 THE STEADFAST POLICY Steadfast Insurance Company (“Steadfast”) had issued an “armed security services” liability policy to Xtreme, effective for the pertinent time period, which provided indemnity coverage to Xtreme against (1) “sums that the insured becomes legally obligated to pay as damages resulting from errors or omissions in the conduct of [Xtreme’s] business” and (2) liability for “bodily injury and property damage” (the “Policy”).8 The Policy contained two pertinent exclusions. It excluded coverage for bodily injury or property damage “expected or intended from the standpoint of the insured” when there is “a final adjudication or admission by an Insured that the act or omission was intentional, criminal, fraudulent, malicious or dishonest.”9 The Policy also contained an exclusion for punitive damages.10 Among others, it also contained a condition which required “that the insured must cooperate in the investigation or settlement of the claim or defense against the suit.”11
responded, however, by asserting that the allegations of the complaint in the Underlying Lawsuit created a conflict of interest between Xtreme and Steadfast, thus necessitating that Steadfast pay for independent defense counsel to be chosen by Xtreme.14 In addition, Xtreme requested that Steadfast permit it to choose its own counsel to remedy the conflict of interest.15 Under well-established Illinois law, an insurer’s duty to defend also includes the right to defend.16 Thus, with the duty to defend comes the insurer’s right to control the defense and protect its financial interest in the outcome of the litigation.17 An exception to that general rule exists where the interests of the insurer and the insured are not aligned, thereby creating a conflict of interest.18 Typically, where an actual conflict of interest exists and the insured does not consent to appointed defense counsel, then the insured is entitled to select independent defense counsel of its own choosing at the insurer’s expense.19 A course of back-andforth correspondence ensued over the next several months in which Xtreme sought to resolve the intertwined issues of the conflict of interest and defense of the Underlying Lawsuit.20 Ultimately, in March 2017, Steadfast sent an email to Xtreme summarizing its coverage position with regards to the Underlying Lawsuit, noting specifically the exclusion for punitive damages, and reserving its rights and defenses under the Policy.21 Steadfast also denied the request for independent counsel and, instead, appointed defense counsel to defend Xtreme in the Underlying Lawsuit.22 In doing so, Steadfast admonished
The First District confirms an insurer may not, by reserving its rights to deny coverage for a punitive damages award, foist upon its insured the greater interest and risk in the litigation, and yet still control the insured’s defense through appointed defense counsel
THE TENDER AND RESPONSE Xtreme tendered the Underlying Lawsuit to Steadfast for coverage.12 In response, Steadfast initially advised Xtreme that it would retain counsel to defend Xtreme for the Underlying Lawsuit, and “made no reservation of rights to deny coverage” at that time.13 Xtreme’s counsel 6 7 8 9 10 11 12 13
Id. at ¶ 7. Id. While the appeal was pending, Israel received leave to file a Fifth Amended Complaint, which was added to the record. See id. at ¶ 15. Id. at ¶ 8. Id. Id. Id. Id. at ¶ 9. Id.
14 15 16 17
Id. Id. Id. at ¶ 19. Id., citing Illinois Masonic Medical Center v. Turegum Ins. Co., 168 Ill.App.3d 158, 163 (1st Dist. 1988). 18 Id., citing American Family Mutual Ins. Co. v. W.H. McNaughton Builders, Inc., 363 Ill.App.3d 505, 511 (2d Dist. 2006). 19 Id. at ¶ 20, citing Nandorf, Inc. v. CNA Insurance Cos., 134 Ill. App.3d 134, 137 (1st Dist. 1985) and Illinois Masonic, 168 Ill. App.3d at 163. 20 Id. at ¶¶ 9-11. 21 Id. at ¶ 11. 22 Id.
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Xtreme that it was required “to cooperate with our chosen counsel in substituting into the case to defend [Xtreme].”23 Xtreme rejected Steadfast’s appointed defense attorney and advised the attorney to “take no action” on behalf of Xtreme in the Underlying Lawsuit.24 Instead, Xtreme continued to defend the underlying suit with its chosen attorney.25 THE DECLARATORY JUDGMENT ACTION Xtreme filed a declaratory judgment action against Steadfast.26 Xtreme asserted that it was entitled to select independent defense counsel because of the conflict of interest arising from Steadfast’s reservation of right to deny coverage regarding intentional acts and punitive damages.27 In response, Steadfast sent a letter to Xtreme, purporting to clarify its coverage concerns. The letter stated that Steadfast reserved its right to deny coverage of punitive damages, but that it would defend and indemnify Xtreme for compensatory damages subject to Xtreme’s compliance with the conditions of the Policy. The letter also stated that Steadfast would not assert any other exclusions or defenses to coverage and denied the existence of a conflict of interest, asserting that “Steadfast has the right to appoint counsel and control the defense of Xtreme.”28 Steadfast counterclaimed in the Declaratory Judgment Action, seeking a declaration that it no longer had an obligation to honor its contractual duties under the Policy, including its duty to defend, because Xtreme had breached the Policy’s “cooperation clause” when it rejected Steadfast’s appointed defense attorney.29 Steadfast also contended that a conflict no longer existed when it waived all reservation of rights except for punitive damages.30 Both parties sought judgement on the pleadings.31 In its ruling, the trial court held that Xtreme was entitled to select its own attorney due to the conflict created by Steadfast’s reservation of rights on punitive damages, combined with the risk of a substantial punitive damages award.32 The trial court thus granted Xtreme’s motion and denied Steadfast’s cross-motion.33 Steadfast appealed.34 THE APPELLATE COURT DECISION The First District affirmed. The Court began its analysis with the general rule for determining conflicts of interest: “we compare the allegations in the complaint to the policy and consider whether the insurer’s interests would be furthered by providing a 23 24 25 26 27 28 29 30 31 32 33 34
14
Id. Id. Id. at ¶ 12. Id. Id. Id. Id. at ¶ 13. Id. Id. at ¶ 14. Id. Id. at ¶¶ 3,14. Id.
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less-than-vigorous defense to those allegations.”35 The Court also noted that a conflict may exist when the facts to be resolved in the underlying case would allow the insurer-retained counsel to “lay the groundwork” for a subsequent denial of coverage.36 The Court further observed that conflicts of interest can arise where an insurance carrier has a duty to defend one claim but reserves the right to deny coverage for remaining claims that are outside of coverage or excluded under the policy.37 The Court specifically discussed American Family Mutual Ins. Co. v. W.H. McNaughton Builders Inc.38 as one illustrative example of a manifest conflict of interest. A question of fact existed in that case regarding the timing of the alleged damages, thus creating an issue of whether the damages fell within the operative coverage period. As such, the insurer had an interest in showing that the damage occurred prior to the policy’s effective date, while the insured had an interest in showing that the damage occurred after inception. This created a conflict.39 Looking to an earlier decision in Nandorf, Inc. v. CNA Ins. Cos.,40 the Court also recognized that a conflict can arise if the underlying suit seeks punitive damages based on intentional or reckless conduct where the policy explicitly precludes coverage for such conduct.41 In such cases, according to the Court, “it is in the interest of the insured to be found negligent because the resulting damages would be covered by the policy, but it is in the insurer’s interest to have a finding that the insured acted intentionally or with malice.”42 The Court cautioned, however, that the Nandorf holding did not mean that a policyholder is entitled to independent counsel at the insurer’s expense whenever an underlying action seeks punitive damages.43 Rather, as in Xtreme’s situation, where “punitive damages formed a substantial portion of the potential liability in the [underlying action] and [the insurer’s] disclaimer of liability for punitive damages left [the insured] with a greater interest and risk in the litigation,” a conflict of interest was created that entitled the insured to retain independent counsel paid for by the insurer.44 The Court also referenced Mobil Oil Corp. v. Maryland Casualty Co.,45 which held that where the compensatory damages claims would likely exhaust the policy limits and there was the potential for a large punitive damages award not covered by the policy, a conflict existed because the insured had an interest to settle the case before trial whereas the insurer “would have lost nothing 35 Id. at ¶ 20. 36 Id. at ¶ 21. 37 Id., citing Maryland Casualty Co. v. Peppers, 64 Ill.2d 187, 197 (1976) and Illinois Municipal League Risk Management Ass’n v. Seibert, 223 Ill.App.3d 864, 877-78 (4th Dist. 1992). 38 363 Ill.App.3d 505 (2d Dist. 2006). 39 See Xtreme, 2019 IL (1st) 181501 at ¶ 21. 40 134 Ill.App.3d 134 (1st Dist. 1985). 41 See Xtreme, 2019 IL (1st) 181501 at ¶¶ 21, 23-25. 42 Id. at ¶ 21. 43 Id. at ¶ 24-25. 44 Id. at ¶ 25. 45 288 Ill.App.3d 743 (1st Dist. 1997).
by letting the case go to the jury.”46 Ultimately, the Court compared the allegations of the operative complaint in the Underlying Lawsuit to Steadfast’s Policy and considered whether the insurer’s interests “would be furthered by providing a less-than-vigorous defense to those allegations.”47 As was the case in Nandorf and Mobil Oil, the Court observed that the underlying complaint sought a substantially greater amount of punitive damages than compensatory damages, that the terms of the Policy explicitly precluded coverage for punitive damages, and that the insurer did not waive its reservation of rights regarding punitive damages.48 The Court further found that a substantial award of punitive damages in the Underlying Lawsuit was “not inconceivable.”49 The Court thus observed: “Where punitive damages form a substantial portion of the potential liability in the underlying action and Steadfast disclaims liability for punitive damages, Xtreme is left with the greater interest and risk in the litigation.”50 Additionally, the Court reasoned that because the insurer denied coverage for punitive damages, it had little interest in defending against Plaintiff’s claims for punitive damages.51 The Court held, therefore, that “a conflict of interest exists, entitling Xtreme to obtain independent counsel paid for by Steadfast.”52 The Court also rejected Steadfast’s argument that its Fifth Amended Complaint, which was filed after the appeal was pending and included a claim for a greater amount of compensatory damages, meant that the case was distinguishable from Nandorf because there was no significant disproportion between the claims for compensatory damages and punitive damages.53 In determining whether a conflict exists, the Court reiterated, it should look at who bears the greater risk and interest in the allegations of the underlying complaint.54 The Court then observed that although the later complaint sought more in compensatory damages, it also sought more in punitive damages, and thus the change did not eliminate either the disparity in risk or the conflict.55 Finally, the Court rejected Steadfast’s additional contention that Xtreme breached its duty to cooperate and thus forfeited its right to coverage.56 First, the Court found the rejection to be justified because a conflict existed and Xtreme was thus entitled to select its own counsel and control the defense.57 Consequently, Xtreme’s refusal to accept control of the case by Steadfast’s chosen counsel could not breach its duty to cooperate.58 Second, even if that were not the case, in order to impose a forfeiture of coverage based on a 46 47 48 49 50 51 52 53 54 55 56 57 58
breach of the duty to cooperate, Steadfast was required to show it was “substantially prejudiced.”59 Proof of substantial prejudice requires an insurer to demonstrate it was “actually hampered” in the defense, and Steadfast had offered no such proof.60 The First District’s decision in Xtreme unavoidably creates further questions to be addressed by other courts, but also provides potentially critical guidance to insurers and policyholders alike as to when allegations of punitive damages can create a conflict of interest entitling an insured to independent counsel. First and foremost, the Appellate Court reaffirmed that a reservation of rights based solely upon a defense to coverage for punitive damages may create a conflict of interest between an insured and its insurer, although that will not always be the case. While the Appellate Court did not offer a specific formula for determining such a conflict, where uncovered punitive damages form a “substantial portion of the potential liability” in the underlying action, and thus the insured is left with the greater interest and risk in the litigation, a conflict of interest will be found to exist, entitling the insured to independent counsel. But exactly where and how to draw that line is far from clear, and only time and ensuing litigation will reveal those answers.
59 Id. 60 Id.
See Xtreme, 2019 IL (1st) 181501 at ¶ 25. Id. at ¶ 26. Id. at ¶ 29. Id. Id. Id. at ¶ 30. Id. at ¶ 29-30. Id. at ¶ 32. Id. at ¶ 33. Id. Id. at ¶ 34. Id. Id.
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WE ARE EXCITED TO SHARE IMPORTANT NEWS ABOUT THE EVOLUTION OF OUR FIRM.
We take great pride in announcing that Kelly Ann Collins, one of our Partners, will be starting her own firm in the Fall. As part of this change, Riewer & Collins, LLC has been rebranded as Strategic Divorce. We are also excited to share that we will be at our new office, in Lake Bluff, effective September 1, 2019. We are happy to be celebrating our new beginning with all of you and are thankful for all your support.
900 N. Shore Dr., Suite 220, Lake Bluff, IL 60044 Office: 847-234-4445 | Fax: 847-234-4449 www.strategicdivorce.com | info@strategicdivorce.com
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STRATEGIC DIVORCE IS MAKING BIG CHANGES!
Starting July 1st, Tiffany M. Alexander joined the firm as a partner after serving as a partner at a prestigious Cook County firm for the last 6 years. Ms. Alexander has practiced family law exclusively since 2005 and brings her collaborative law practice to the firm as well as continuing to serve as an approved mediator and representative of children in Lake County. Ms. Alexander lives in Lake Forest with her husband and two children.
July 2019
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Title IX at Forty-Seven:
A Brother’s Reflections on an Olympic Gymnast, a Track Pioneer, and a Nike Executive
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BY JOHN E. THIES, ESQ.
hat do you call the brother of three sisters including an Olympic gymnast, a pioneering track athlete at a Big Ten university, and a state-qualifying tennis player, now Nike executive?
For me, it means a lawyer who has witnessed firsthand some of the ups and downs associated with Title IX of the Education Amendments of 1972.1 This landmark legislation turns forty-seven this year, giving me pause to reflect on some of my sisters’ experiences -- positive and negative -- associated with Title IX: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination John E. Thies is a past under any education program or president of activity receiving Federal finanthe Illinois 2 cial assistance. Both private and public institutions are governed by Title IX regulations, and this has affected most colleges, universities, as well as state and local educational institutions due 1 2
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To paraphrase an old joke, some would also say a “feminist.” 20 U.S.C. A. § 1681(a) (1972).
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to their receipt of federal assistance. According to the United States Department of Education, “[t]hese agencies include approximately 16,500 local school districts, 7,000 postsecondary institutions, as well as charter schools, for-profit schools, libraries, and museums. Also included are vocational rehabilitation agencies and education agencies of 50 states, the District of Columbia, and territories and possessions of the United States.”3 While Title IX was intended to expand opportunities for women and girls in a wide range of areas, much of the public focus on this law has been with regard to athletics. The year Title IX was enacted, my sister Nancy Thies Marshall competed in Munich as a member of the 1972 United States Olympic Gymnastics Team. In the course of that competition, Nancy -- who was 15 years old at the time -- successfully
State Bar Association (ISBA) and practices with the ChampaignUrbana law firm, Webber & Thies P.C. He is the current president of Land of Lincoln Legal Aid.
3 Title IX and Sex Discrimination available on www2.ed.gov/about/offices/list/ocr/ docs/tix dis.html retrieved on December 26, 2018.
completed the first back summersault on the balance beam in Olympic history. During her 4 years on the U.S. National team, she was a national champion in two events and competed all over the world. Ultimately, Nancy was inducted into the World Acrobatics Hall of Fame (among her many other recognitions). Despite her significant prior achievements in the sport, when Nancy entered the University of Illinois (“U of I”) in the fall of 1975 and became a member of the school’s women’s gymnastics team, she was given only a partial athletic scholarship. Instead of receiving a full one, she was informed by the athletic department that, unlike the hundreds of male athletes with inferior credentials, she would have to “prove herself” before receiving this level of aid. The administrator who made this proclamation (incidentally, a woman) had a background as a physical education instructor. Unbelievable as this story may read, it exhibits several “growing pains” that followed Title IX’s enactment. First, Title IX didn’t result in instantaneous practical reforms — it would be years before we would see the greater parity that exists between men’s and women’s college sports programs today. Second, my sister’s story is a reflection of the need at that time for women’s programs to shift from a model that was more focused on teaching women athletes how to be physically fit, to one that emphasized competition at the highest level, along with creating pathways for athletes to do this. Nancy clearly did “prove” her worth to the university. During the two years she competed at the U of I— prior to her retirement from the sport to join NBC Sports as its gymnastics commentator— she won nine Big Ten individual titles, led the school to two Big Ten team titles and was the school’s first female Athlete of the Year. Ultimately, Nancy was included in the first class of athletes -- male and female -- inducted into the U of I Athletics Hall of Fame, joining Dick Butkus and other U of I sports luminaries. To her, the growing pains of Title IX presented just one more hurdle to overcome. Fortunately, she at least had a varsity college sport to begin with (albeit one that didn’t deem her worthy of a full scholarship until her sophomore year!), a rarity for women on prior U.S. National teams. In that respect, when my sister Susie Thies Harrison arrived at Indiana University (“IU”) as a freshman in 1976, there was no varsity women’s track and cross country program. IU had a distinguished varsity men’s program in both sports (one I participated in as an ath-
lete five years later), but the school had been unwilling to extend this status to women. Accordingly, when she got to campus, Susie became a “club team” athlete and went to work trying to persuade athletic department officials that varsity programs should be established for women’s track and cross country. To make her case, Susie worked with another club team member to prepare an exhaustive review of the costs and benefits of such programs, the success of the IU club team members, and the talented athletes already available to represent the school. After much persistence, the IU Athletic Department, crediting Susie and her teammate for the role they played, eventually relented and established varsity track and cross country for women beginning in 1978. I have little doubt that the existence of Title IX (and the tool it provided to potential litigants) played a role in this expansion. Our younger sister Anne Thies Peters has been impacted by Title IX in an equally important way. Given her age (nine years younger than Nancy and eight years younger than Susie), thanks to Title IX, Anne entered high school with a wide range of athletic opportunities (she chose tennis, where she qualified for the Illinois State Meet three times) and had many options if she had wanted to compete in college. For a young woman interested in participating in organized sports, there was a big difference between being born in 1957 (like Nancy) and 1966 (like Anne). Anne’s connection to Title IX didn’t end with tennis. In fact, Anne’s most direct connection to Title IX may be how it is affecting her now. Anne is an executive with Nike in Oregon; she travels across a globe where it is difficult to find a place where women (and girls) are not wearing Nike shoes and gear competing in them at the highest levels. I would venture to say that these markets — in the US and beyond — experienced billions of dollars in expansion due to Title IX. In the sports arena, Title IX has been far from perfect. To begin with, many men’s sports teams have been eliminated throughout the country in order to achieve greater parity. It is ironic that a law designed to advance opportunity for many, has taken it away from more than a few – a significant culprit of this at the collegiate level has been men’s football with its hundreds of scholarships. This particular problem is one worth fixing, but in the interim, no one can dispute that Title IX has led to enormous advancement in the engagement of women and girls in tremendously fulfilling athletic and other pursuits -- a very good thing. In reflecting back, I have been an up-
It is ironic that a law designed to advance opportunity for many, has taken it away from more than a few
July 2019
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Bring Ray Home!
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BY TY ROHRER
aukegan is lucky to have author Ray Bradbury as its favorite son. As the centennial of Bradbury’s birth approaches in 2020, a renaissance of sorts has taken place throughout the City to tell his unique story. The City has always celebrated Bradbury. But recently, different entities have focused on find- The hardest part though went to the artists. Each artist’s ing new ways to showcase his connection to Waukegan. submission was unique, and it was clear that the imagiOne such project to celebrate Bradbury is the creation nation of Bradbury had inspired. of a piece of public art, an initiative of the Ray Bradbury Ray Bradbury was born in Waukegan on August Statue Committee and the Waukegan Public Library 22, 1920. Bradbury’s ancestors were important pioneers Foundation. in Little Fort (Waukegan). The Bradbury family home Creating a piece of public art is was located at 11 South Saint James not a new concept for Waukegan. In Street, which is just off Washington Ty Rohrer is 2002, a statue for Waukegan’s Jack Street and a few blocks from downthe Manager of Cultural Benny was erected at the southtown Waukegan. Bradbury’s grandArts for the west corner of Genesee and Clayton parents lived next door and other WaukeStreets. This statue captures the family members were close as well. gan Park essence of Jack Benny, holding his Although Bradbury’s family perDistrict. violin with his classic pose that was manently moved from Waukegan to A trained historian, Ty always good for a laugh. For those Los Angeles in 1934 during the Great has spent the who grew up enjoying Jack Benny, Depression, his early years growing last 13 years this statue is perfect and obvious. up in Waukegan greatly influenced showcasing Still, honoring Ray Bradbury with him to eventually become a world-fathe rich a piece of public art is a more dauntmous author in the realm of fantasy. history of Waukegan, IL. As such, Ty has shared the story of Waukeging task. There were countless direcBradbury traced his love for writing to an’s Ray Bradbury through exhibits, tions considered, and the Committee his passion for reading. In 2009, Ray walking tours, and lectures. had wonderful debates on the matter. Bradbury said, “I was born in Wauke-
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gan in 1920 and had my second birth at the Carnegie Library in Waukegan. I came to full bloom there and when I was twelve, after reading most of the books in that fantastic library, I became Ray Bradbury. What more could I ask. What a wonderful town to be born in. What a library to grow in. What a town to come back to; a town that I know and love with all my heart.” Following a national search, Zachary Oxman’s concept “Fantastical Traveler” was selected. Oxman’s unique design places Bradbury atop a spaceship holding his novel “Fahrenheit 451.” This sculpture will sit
at the corner of County and Clayton Streets in front of the Waukegan Public Library. It will be 13 feet tall, fabricated in stainless steel. We know that this sculpture will motivate both the young and the old to visit the library. This sculpture may even help to inspire the next Ray Bradbury from Waukegan! Fundraising is still underway for this unique piece of public art to celebrate Ray Bradbury. The unveiling is on Ray’s 99th birthday, August 22, 2019. If you would like to support or learn more about this community initiative, you can do so by visiting www.raybradburystatue.org.
Oxman’s unique design places Bradbury atop a spaceship holding his novel “Fahrenheit 451.”
MEMBER RECEPTION September 26, 2019 4:30 - 6:30 p.m. Join us after work to network with fellow members at the LCBA Member Center. Sponsored by
Help celebrate 100 years with Fuqua Winter Ltd.
MEMBER RECEPTION SPONSORSHIP OPPORTUNITIES LCBA Member Receptions will generally be held on the 4th Thursday of every month.
Your $500 sponsorship includes: • Recognition in advertising before the event and on signage at the event • Reception from 4:30 – 6:30 p.m. • Complimentary beer and wine. Upgrades available for additional fee.
Contact Dale Perrin at dale@lakebar.org to add your name to a reception.
July 2019
21
What Can You Buy for $10?
T
BY TONY PACIONE, LCSW, CADC
en dollars can’t buy you much in today’s economy, but the Illinois Lawyer’s Assistance Program (LAP) provides a lot for ten bucks! The amount of $10 is contributed to LAP from each registered attorney’s annual licensing fee. Let’s examine the return on that investment. VALUE AND ACCESS We will soon have three Chicagoland offices- in the Loop, Value in health care enterprises is defined as qualNorthwest Suburbs, and soon in DuPage/Kane counity divided by cost. LAP has demonstrated high value ties. We also have regional offices in Madison County/ in accordance with that definition. We strive and have Metro East (Edwardsville and Maryville), Jackson County demonstrated success each year in providing quality (Carbondale), McClean County (Bloomington) and Rock service for each of the $10 registration Island County (Quad Cities). fees we receive. As our outreach efforts and our Tony PaciOver the past few years, LAP’s services grow, so has attorney satisfacone, MSW, outreach efforts throughout the entire tion with our services. MAEd, is state have yielded increasing numbers the Deputy of attorneys, judges and law students SATISFACTION MEASURES Director for seeking assistance for mental health The five areas we use to meathe Illinois Lawyers’ and substance abuse issues. They find sure satisfaction are: 1) how easy it Assistance their way to us from colleagues, preis to access LAP; 2) how confidential Program, sentations we deliver, our social media involvement is with LAP; 3) how providing presence, and our continued efforts in satisfied lawyers are with the referral behavioral law schools and judicial conferences. for ongoing care provided by LAP; health and addiction services to attorneys, The following chart shows LAP’s 4) how helpful LAP was in achieving judges, and law students. He is a significant increases in new cases for goals for seeking help; and 5) how Licensed Clinical Social Worker in each of the last five fiscal years. likely an attorney would be to recomIllinois and a Certified Supervisor Our expertise is accessible and mend a colleague to LAP. Addiction Counselor. available in every corner of the state.
22 The Docket
EXPERTISE Your $10 also purchases considerable expertise in the areas of mental health, substance abuse, and attorney wellness. Executive Director Robin Belleau, JD, LCPC, former Assistant States Attorney and Assistant Public Defender, is also a licensed mental health clinician and an experienced interventionist. Legal Educational and Clinical Manager Diana Uchiyama, JD, PsyD, former Assistant Public Defender, and is also a Licensed Clinical Psychologist and Forensic Psychologist. Legal Community Liaison Shelley Sandoval, JD, is a recent law graduate who maintains our very successful outreach efforts to law firms, governmental agencies, and laws schools. Deputy Director Tony Pacione, LCSW, CSADC, has decades of experience managing outpatient and inpatient clinics servicing those in need of mental health and addiction treatment. LAP’s Board of Directors, appointed by the Illinois Supreme Court, are experienced and dedicated attorneys and judges. Some members of our Board, Advisory Committee to the Board, and Associate Board are former LAP clients who are ‘giving back’ and paying it forward to other attorneys now struggling with some of the same issues these committed board members have faced.
completed a strategic upgrade of our web site (illinoislap. org), which now accounts for 17% of our new cases; go ahead and try it- Google “help for lawyers in Illinois” and we appear number one on the search results! This was not always the case. Over the past three years we have firmly established connections at all nine law schools in the state, including having one of our staff or trained volunteers spend a day each month meeting with students who are seeking assistance from LAP. As a result, law schools account for nearly 20% of new cases. Over the past thirty years or so, LAP have given many attorneys struggling with addiction and mental health issues a helping hand to get into appropriate treatment. LAP has also guided attorneys though the first year or two of recovery with our focused case management and extensive follow-up care. By tracking and supporting attorneys through the initial stages of recovery and treatment, a pilot project demonstrated that only five out of twenty- two attorneys have experienced a treatment failure and returned to active substance use- this represents 77% recovery rate during the initial six months of recovery!
Your $10 also purchases considerable expertise in the areas of mental health, substance abuse, and attorney wellness.
OUTREACH AND FOLLOW UP CARE Over the past year and a half, LAP has made a concerted effort to increase the legal community’s awareness of LAP, the services we offer, and the issues that face many attorneys, judges and law students in the contemporary practice of law. These efforts in large part have accounted for the significant increase in new cases. We know that 31% of new clients learned about LAP from a colleague, while another 14% gained awareness of LAP from one of the approximately 90 CLE presentations we provide each year. We recently
A GROWING NETWORK OF SPECIALTY PROVIDERS AND TRAINED VOLUNTEERS Unfortunately, LAP cannot provide all of the ongoing care for the extended periods of time which many of our attorneys require. But your $10, through the careful efforts of LAP, provides access to an extensive network of providers throughout out the state. These providers are assessed and monitored based on several criteria, and we seek to find the best match between what an attorney needs and the capabilities of the provider or treatment program. Each year in June, LAP provides a volunteer training ses-
July 2019
23
close witness to a share of this as a proud brother. sion in Chicago and in another part of the state. This peer support training seeks to equip volunteers with the needed skills to enable them to reach out to attorneys, judges, and law students in need and provide ongoing support and ‘coaching.’ We train an average of over 250 new Peer Support Volunteers annually. In addition, LAP’s ongoing Treatment Assistance Fund raises money to provide for attorneys, judges, and law students who may need funding for treatment. Over the last three years, LAP has provided approximately $45,000 in assistance to those needing help but unable to afford treatment. We are grateful to those who contribute to this fund. SO WHAT CAN YOU REALLY GET FOR $10? Through the collective efforts of our committed and expert staff, our dedicated and experienced Board of Directors, and the many committed Peer Support Volunteers, you certainly get a lot for $10. Once someone reaches out to
LAP, often the end result is that your $10 may save a career, a family, or a life – you can’t even buy 2 lattes for $10! If you have any questions or concerns and/or need help or assistance, please contact LAP. We are happy to talk to you about any matters and help you find the best solution to increase and optimize your overall well-being and functioning. All services are free and confidential. We are here to help you! Please contact us at illinoislap.org, at 1-800-LAP1233, or gethelp@illinoislap.org
2019 CIVIL TRIALS & APPEALS SEMINAR ON THE MORNING OF JULY 25, AT GLEN FLORA COUNTRY CLUB
24 The Docket
Purchase Your Raffle Ticket Today 1 TICKET: $25 OR 5 TICKETS: $100 WINNER WILL RECEIVE ONE WEEK IN THE PRESIDENTIAL SUITE
AT THE PUEBLO BONITO SUNSET BEACH RESORT & SPA YOU PICK THE WEEK IN 2020
THE RESORT Pueblo Bonito Sunset Beach Golf & Spa Resort offers the ultimate Cabo San Lucas beach vacation experience.
THE PRESIDENTIAL SUITE Sleeps 8: 2 bedrooms, 2 baths, a 2100 sq ft single level condo including a 400 sq ft porch for lounging and dining. Amenities include: daily maid service, central A/C, satellite TV, furnished kitchen (no oven), pillow menu, room service, video library, and broadband internet and 24/7 golf cart transportation about the resort. Resort dining plan is also available.
THINGS TO DO IN CABO Discover exciting things to do in Cabo San Lucas, just minutes from the gates of Pueblo Bonito Sunset Beach
Resort & Spa. From world-class golf to snorkeling and scuba diving,
to deep-sea sport fishing, swimming with dolphins, and dancing till dawn, activities abound in Cabo San Lucas.
THE WINNER WILL BE DRAWN AT THE LCBA HOLIDAY PARTY ON DECEMBER 6, 2019. WINNER NEED NOT BE PRESENT.
July 2019 25
2019 LCBA Golf Outing on July 25th at Glen Flora Country Club Golf Outing Winners 1st place Team Andrew Burkavage Graham Jeep Andris Lizenbergs John Mennie 2nd Place Team Brad Faber Keith Hunt Hon. Henry “Skip” Tonigan (Ret.) Guy Youman 10th Place Team Larry Appelbaum Thomas Campe Jack Linn John Rizzo You Should Try Bowling Award Hon. Christen Bishop Marykay Foy Joy Gossman Hon. Victoria Rossetti Closest to the Pin – Women Hon. Jacquelyn Melius Closest to the Pin – Men Mark Curran Longest Drive – Women Liz May White Longest Drive – Men Andrew Burkavage
26 The Docket
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The Exercise Coach provides highly efficient workouts which are easy to fit into my busy schedule. Since joining The Exercise Coach, I have found it easier to maintain a consistent exercise routine. The staff at The Exercise Coach are extremely knowledgeable, friendly and encouraging. I highly recommend The Exercise Coach, especially for busy individuals who struggle to find the time to fit exercise into their hectic schedules. Kelly Collins, Riewer & Collins LLC
The Exercise Coach in Bannockburn is professional, personal and personalized. Having been through a number of surgeries in the past few years, the professionals at ‘Coach’ worked with my surgeons and the physical therapists to design personalized programs to ensure the muscles I needed to improve for a quick recovery were highlighted during each session. Indeed, the Coach pros and rehab staff for the surgeries kept in touch, on a regular basis, resulting in a much quicker and complete recovery. Even the rehab staff commented that they were impressed by the thoroughness of The Exercise Coach to make sure my exercise program was what was I needed, not a boilerplate used for all clients. Jeff Lyon, Lyon & Caron LLP
Ideal for busy professionals who feel they do not have the time to work out or who just do not want to take the time. I have been a member for over 2 years; going twice a week for just 20 minutes. The trainers are outstanding. The workout is monitored by computers, and with regular assessments the results are tracked and proven. I am much leaner and stronger. I was a skeptic at first, but it really works. Stephen S. Newland, Newland & Newland LLP
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Board of Directors’ Meeting
The
June 13, 2019 CALL TO ORDER: At 12:10 ACTION ITEMS: 1. Consent Agenda: Moved and passed a. May Minutes b. New Members c. Recent New and Young Lawyers event – Attendees noted that the Young Lawyers event was very successful, with a big crowd and a good program and sponsors. 2. Treasurer’s report: a. July – May Financial Reports w/projected YearEnd Totals. Discussion had by Treasurer, including a possible projected plan for capital improvements. OLD BUSINESS: 1. 2019 – 2020 Budget: Final review and approval. President discussed strategic planning and finance;
suggested changes to current budget/address typos. Proposed motion: That the budget draft as presented be adopted as the Association’s budget for 2019-2020, taking into account the minor changes discussed (matching seminar line item amounts, public defender reduction of membership dues by $3k). Seconded and Approved. 2. Appellate Justices Reception: July 11 @ 3pm in the Tower; fundraising discussion. Moved and Approved - access is free for members, $25 fee for all non-members, including spouses/family. 3. Governmental/Nonprofit Attorneys Membership Dues: Preliminary discussions were had during the Board meeting, with a follow-up telephone con-
Visit the LCBA Website: lakebar.org 28 The Docket
Meeting Minutes BY TARA R. DEVINE SECRETARY
ference set for the Board on June 18th @ 12:15 p.m., at which time a motion / decision is anticipated. NEW BUSINESS: Informational items (not for action): 1. 2019-2020 Committees and Chair Assignments: Review active and proposed committees and assigned Chairs. 2. LCBA Strategic Plan Review/Update – Create committee to review and update Strategic Plan this year. To discuss: makeup of the committee (number of people; etc.) 3. Board Orientation: July 9th, 4 – 6 pm, in Libertyville. 4. LCBF - Preliminary discussion on lease terms, rent,
real estate taxes, cost sharing with renter, etc. Motion to adjourn: Passed at 1:09 Next Board Meeting Date: 7/18 BOARD MEMBERS PRESENT Stephen Rice President Hon. Patricia Cornell First Vice President Joseph Fusz Second Vice President Kathleen Curtin Treasurer Tara Devine Secretary Brian Lewis Past President Hon. Christine L. Bishop 2017-2020 Director Katherine S. Hatch 2017-2020 Director David R. Del Re 2018-2021 Director Thomas A. Pasquesi 2018-2021 Director Dwayne Douglas 2019-2022 Director Dale A. Perrin, Executive Director
2ND DISTRICT APPELLATE JUSTICES RECEPTION ON JULY 11
July 2019 29
Pull Out Your Calendar
L
et me begin by thanking the 650 LCBA members who renewed their membership for the 2019-2020 fiscal year in the month of July. It is my hope that the remaining 350 members who have not renewed as of this writing will do so in the next 30 days. Starting August 1, those members who have not renewed will be marked as “Suspended” which means they will not be able to login and renew online. A quick 3-minute phone call or visit to the LCBA office will take care of the renewal and make them “Active” again. For all
2nd Annual LCBA Chili Cook-Off 4:30 – 6:30 pm. LCBA Member Center
30 The Docket
the currently active members, please encourage your fellow legal professionals to renew their membership (or join if they’ve never been a member) in the next 30 days. There are strengths in numbers. The Association, which means you, benefits greatly with more members, especially with more active and involved members. Three great events happened in July starting with the 2nd District Appellate Justice Reception on July 11 which started at the new Court Tower and concluded at the LCBA office. Thank you to all the Appellate Justices for participating and spending time with our members. Thank you to Appellate Justice Mary Schostok and LCBA 2nd Vice President, Joe Fusz for spearheading this event and pulling it together. July 25 was a fun-filled day at Glen Flora Country Club, starting with the Civil Trial & Appeals Seminar in the morning followed by the annual LCBA Golf Outing includ-
In the
Director’s Chair
ing an exciting Helicopter flyby and ball drop. Thank you to the many sponsors, presenters and participants for making both events a great success. Coming up we have the Foundation’s Family BBQ at Lake Minear hosted by Foundation President Nick Riewer (and his lovely wife Michone). This is a fun fundraising event for the Foundation where we will begin the 2019 Cabo Condo Raffle Ticket sales. For $25 you can purchase one raffle ticket to win a week at the LCBF’s condo in Cabo. For $100 you can get 5 chances to win. Imaging spending a week at the beautiful Pueblo Bonito Sunset Beach Resort & Spa for only $25 (plus the cost of airfare). See full-page ad in this Docket for details. Mark the following September dates in your calendars as it will be another benefit packed month: September 5: 2nd An-
BY DALE PERRIN EXECUTIVE DIRECTOR nual Chili Cookoff hosted by the Community Outreach Committee September 6: Annual Shred Event in the LCBA Parking Lot. Start cleaning out your old files. September 19: Family Law Fall Seminar in the Jury Assembly Room September 24: Membership Luncheon providing Lake County and IL State Bar updates September 26: Member Reception in the LCBA Member Center hosted by Fuqua Winter, Ltd to help celebrate their 100 Anniversary. Be sure to check the LCBA website or read the weekly E-News (on Tuesdays) for a complete list and details of events, activities and committee meetings. As always, Katie, Jose and I are here to serve you. Please call or visit us if there is anything you need, or we can be of help in any way.
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July 2019
31
Bar
Bulletin Board
Monthly
Committee Meetings
DAY
MEETING
LOCATION
TIME
1st Tuesday
Diversity & Community Outreach
LCBA
12:15-1:15
1 Thursday
Real Estate
Primo, Gurnee
5:30-6:30
Editorial 1st Thursday (Odd Mo.) Docket Committee
LCBA
12:15-1:15
2nd Tuesday
LCBA
12:15-1:15
LCBA
4:30-5:30
st
Criminal Law
2nd Tuesday (Odd Mo.) Immigration 2nd Wednesday
Family Law Advisory Group (FLAG)
LCBA
12:00-1:00
2nd Wednesday
Civil Trial and Appeals
LCBA
4:00-5:00
2 Thursday
Young & New Lawyers
TBD
5:30-6:30
3rd Tuesday
Local Government
LCBA
12:15-1:15
3rd Tuesday
LCBF Board of Trustees
LCBA
4:00
3rd Wednesday
Debtor/Creditor Rights
Varies
5:30-6:30
3rd Wednesday
Family Law
C-105
12:00-1:00
3nd Wednesday
Trusts and Estates
LCBA
12:15-1:15
3 Wednesday (Odd Mo.) Employment Law
Varies
5:15-6:15
3rd Thursday
LCBA
12:00 noon
nd
rd
LCBA Board of Directors
• RSVP to a meeting at www.lakebar.org. • Meetings subject to change. Please check your weekly e-news, the on-line calendar at www.lakebar.org or call the LCBA Office @ (847) 244-3143. • Please feel free to bring your lunch to the LCBA office for any noon meetings. Food and beverages at restaurants are purchased on a individual basis.
32 The Docket
To place an ad or for information on advertising rates, call (847) 244-3143
Do you have a speaker idea or suggestion for our business meetings? We would like to hear from you! Send your ideas to: dale@lakebar.org
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July 2019
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