The Docket - October 2019 by Town Square Publications, LLC

THE

DOCKET The Official Publication of the Lake County Bar Association â&#x20AC;˘ Vol. 26 No. 10 â&#x20AC;˘ October 2019

V olunteer Lawyers Program Thank you to these attorneys who have either closed a pro bono case or taken a new pro bono case in 2018-2019. This program is supported by the Community Outreach Committee of the Lake County Bar Association. Members of the Lake County Bar Association are indicated with an asterisk (*). To become a volunteer please call Prairie State Legal Services at 847-662-6925.

2018-2019 Pro Bono Volunteers

Robert Ackley* L. Kat Allen* Julane Alt Karissa Anderson* Aditya Banerji Greta Berna* Rachel Bernal* Deanna Bowen* Julia Carpenter* Ann Conroy* Damian Crooks* Kathleen Curtin* David Del Re* Jessica Duhig* Mary Field* William Y. Franks* David Ganfield, II* Deborah Goldberg* Thad Gruchot Catherine Hermann Cathy Higgins Mora Deanna Hoyt*

David Kerpel* Ronald Kingsley* Raymond Kloss* Amy Lonergan* James Magee* Chris Marder* Jeffrey Middlesworth Matthew Moodhe Donald Morrison* Maria Pellegrino June Peterson-Gleason* Jencie Richtman* Daniel Rock Gary Schlesinger* Stephen Simonian* Anne Schmidt* Lawrence Smith* Michael Strauss* Julio Valdez Rebecca Whitcombe* Magdalena Wilk* Scott Williams*

CONFERENCE ROOM For meetings only. Seats 16 – 20 comfortably During business hours (8 am – 5 pm) • Member- Free • Non-Member $150/1st hour. $50/hour after • Non-Member, Not-for-Profit: $25/hour

2019 LCBA OFFICE RENTAL PRICING

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MEMBER CENTER “The Bar” Accommodates up to 100 people During business hours (8 am – 5 pm) Members (add $25/hour for after hour events) •M eeting only (individual or group, no food or beverages served: Free • S elf-Service reception or party (provide own alcoholic beverages): $50 per hour •H osted beer & wine reception or party (beer & wine provided by Association): $250/ 1st hour, $50/hour after Non-Members: (add $50/hour for after hour events) •M eeting only (individual or group, no food or beverages served): $50 per hour • S elf-Service reception or party (provide own alcoholic beverages and food): $300/ 1st hour, $50/hour after •H osted beer & wine reception or party – Not Available Non-Member, Not-for-Profit: (add $25/hour for after hour events) •M eeting only (individual or group, no food or beverages served): $25 per hour • S elf-Service reception or party (provide own alcoholic beverages and food): $150/1st hour, $25/hour after •H osted beer & wine reception or party – Not Available Association Committee Meetings (Conference Room or Member Center) Without beer & Wine - Free With Hosted Beer & Wine - $150 flat fee (for 5 – 15 people), $200 (over 15 people) Room rentals are based on availability. Rentals include use of A/V already in room (phone, TV, Speaker. WIFI). All rentals include free parking in our large, well-lit, 45 vehicle parking lot adjacent to the LCBA building.

Contact the LCBA Office at 847-244-3143 or info@lakebar.org

Contents THE DOCKET • Vol. 26, No. 10 •October 2019

FEATURES

8 A Grand, Tactical Illusion or a Litigation Pitfall? Only Time will Tell. BY JEFFREY BERMAN

12 Succession Planning and the Coming Senior Tsunami BY JOHN CESARIO

16 Fear and Loathing in Waukegan

A publication of the

18 300 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

BY MICHAEL S. STRAUSS

Restaurant review: Consume Gastropub BY JOSEPH A. SALVI

Unlocking the Mysteries of the Gridiron BY A CHARMING DOCKET JOURNALIST

2nd Annual Chili Cook-Off BY KARISSA ANDERSON AND JOHN JOANEM

COLUMNS

2 President’s Page A Reason to Join, a Reason to Participate

BY STEPHEN J. RICE, PRESIDENT

4 The Chief Judge’s Page Recreational Marijuana Goes on Sale January 1st and Dispensaries are Getting Ready

6 Bar Foundation Here They Come

BY NICHOLAS A. RIEWER, PRESIDENT

24 The Meeting Minutes July 22, 2019

BY TARA R. DEVINE, SECRETARY 26

In the Director’s Chair So, what’s new with you? BY DALE PERRIN, EXECUTIVE DIRECTOR

LCBA EVENTS

IFC 2019 LCBA Office Rental Pricing 3 The Calendar of Events 3 Grapevine 5 New LCBA Members 5 Holiday Party 5 Lawyer Referral Service 7 Fall Luncheons 7 LCBA Office Space 15 Cabo Raffle 17 Veterans History Project 28 Monthly Committee Meetings BC Member Reception

BY CHIEF JUDGE JAY W. UKENA AD SIZE 1/8 Page 1/4 Page 1/2 Page Full Page Inside Front or Inside Back Cover

Back Cover

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Standard $1.75 per word (Rate for LCBA Members) Text $2.75 per word (Rate for Non-Members) Bold $3.50 per word (Rate for LCBA Members) Text $4.50 per word (Rate for Non-Members) Classified Advertisement may contain as many words, numbers, symbols and boldface type.

Advertising Rates To place an ad or for information on advertising rates, call (847) 244-3143. Submission deadline: first day of month preceding the month of publication. All submissions must be made in electronic format (high resolution PDF or JPG format at a resolution of 300 pixels per inch or more.) See www.lakebar.org/page/Docket_Advertising The Docket is the official publication of the Lake County Bar Association, 300 Grand Avenue, Suite A, Waukegan, Illinois 60085 (847) 2443143, and is published monthly. Subscriptions for non-members are $45.00 per year.

Reproduction in whole or part without permission is prohibited. The opinions and positions stated in signed material are those of the authors and not necessarily those of the Association or its members. All submitted manuscripts are considered by the Editorial Board. All letters to the editor and articles are subject to editing. Publications of advertisements is not to be considered as an endorsement of any product or service advertised unless otherwise stated.

A Reason to Join, a Reason to Participate

ew York Times columnist David Brooks recently gave a speech about an initiative he’s leading titled

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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“Weave: The Social Fabric Project.”1 In it, he first speaks personally about his own experience as a career professional, but then how his professional status derailed his social life and, thus, his ability to live well. He then broadens the message: As I was going through this valley of disconnection, a lot of people were going through that valley. . . . 35% of Americans over 45 are chronically lonely; 55% of Americans say “no one knows me well”; in 1970 married couples entertained in their homes about 20 times a year, now it’s down to eight; only 8% of Americans say they have important conversations with their neighbors; the fastest growing political party is unaffiliated; the fastest growing religious 1

You can view the speech here: https://bit.ly/2kVumbl

The

President’s Page

movement is unaffiliated; since 1999, suicide rates have gone up by 30%, and suicide is a proxy for loneliness; teenage suicide rates since 2011 have gone up 70%. These are all proxies for disconnection. That’s what’s happening in society. The American lifespan is dropping, not rising. And so we have an era of distrust. If you ask Americans “do you trust your neighbors,” a generation ago 60% of Americans said “yeah, my neighbors are trustworthy”; now it’s down to 32%, and 19% of millennials. The younger you go down the age scale, the more distrust there is. Countless authors in the past few years have examined these phenomena, this gloomy American zeitgeist. And one might wonder: Is it reflected in the legal profession? In the past two

BY STEPHEN J. RICE PRESIDENT months I’ve seen two very good Lawyers’ Assistance Program (LAP) presentations. The most recent was part of my work on the Character and Fitness (C&F) committee for the Second District. Our committee screens candidates for Illinois licensure who have blemishes of various degrees in their C&F applications. The presenter, Joe Scally, recited some findings on lawyer wellbeing from a 2016 ABA/Hazelden Betty Ford Foundation study.2 The study included 13,000 practicing lawyers, and the issues identified are somewhat different from the metrics cited by Brooks, but they are equal in tenor: 21-36% of practitioners qualify as problem drinkers; also 2 https://lawyerwellbeing. net/wp-content/uploads/2017/11/Lawyer-Wellbeing-Report.pdf

endemic is depression (28%), anxiety (19%), and stress (23%). Further, suicide rates in the legal profession exceed the rate that applies to Americans generally. Like doctors and some other professionals, attorney suicides reflect a population of abnormally ill health. “Boy, is this a Debbie-Downer President’s Page,” you’re likely thinking. Bear with me. When I reflect upon the lawyers I know, I don’t see them precisely reflected in these disheartening statistics. This is not to say I do not see stressed and anxious lawyers around me—that happens for sure. But I don’t see many chronically stressed or anxious lawyers. Suicide rates are abnormally high among lawyers, but that, too, has not been my personal experience. So my sample—admittedly limited and very unscientific—does not seem to reflect the world at large. Why might that be? One answer I’ve posited is this: I participate in a Bar Association. I

The

Grapevine

“Race Judicata” (https://cvls. org/judicata) is a charitable 5k run/walk held annually in Chicago and benefitting the Chicago Volunteer Legal Services Foundation. For the race on September 12, an incredible 60% of our Lake County judges registered and many participated. A friendly wager between Judges Betar

connect participation in the LCBA with much of what David Brooks speaks about: How do Americans stem against loneliness and its social pathologies; how do lawyers stem against the same, which are amplified by what could be called our “professional pathologies”? I believe one way to do that is to participate in a bar association. “Pain that is not transformed gets transmitted,” notes Brooks in his speech. By that he means that if we don’t transform our pain into something else—something better— we will likely inflict it on others (or perhaps even on ourselves, through suicide). There are a lot of “pains” involved in our profession: stress; anxiety; sometimes boredom; the secondary trauma we experience, where a client’s emotional state becomes our own; or the inverse: detachment—the inability to empathize, and the development of an abiding cynicism. How do you transform that pain? How do you

avoid loneliness? Do you have important conversations outside of work? Do you practice religion? Politics? Community involvement otherwise? Where do you create connections—i.e., fight the disconnection of which David Brooks speaks? I spoke last month to a group of attorneys who practice criminal law. Older practitioners talk about how the different sides of the criminal bar once had relationships outside of court (most of us have heard of old “B-Room” stories). Mental and social health aside, such interactions definitely foster courtroom civility. But mental and social health should not be put aside: these are important things. Is this a reason to join or increase your participation in the Lake County Bar Association? It is. By the way, there are really just three things you need to know about the Lawyers’ Assistance Program: (1) it’s confidential; (2) it’s free; (3) www.illinoislap.org; 800-LAP-1233.

The

Calendar of Events

October 22 Membership Luncheon – Pro Bono Awards Waukegan City Hall October 24 Member Reception hosted by Fuqua Winter, Ltd. LCBA Member Center October 28 Anatomy of a Trial – Impeachment Courtroom T810 October 29 Brown Bag CLE – Collaborative Law Basics LCBA Office November 1 Trust & Estates Seminar Knollwood Country Club November 11 No Court & LCBA Closed Veterans Day November 19 Membership Luncheon – ARDC Update Waukegan City Hall November 25 Anatomy of a Trial – Rules of Evidence Courtroom T810 November 28-29 No Court LCBA Closed Thanksgiving & The Day After

and Berrones bet that the bearded one (see image!) could beat the hairless (but with a 6-minute handicap, due to reduced facial wind drag, we’re told). At stake was the hair: Judge Betar agreed to shave to a Fu Manchu if he lost; Judge Berrones agreed to grow a beard, if he was bested. Judge Betar’s beard, named “Frank,” was thus in jeopardy, giving rise to the t-shirt he wore (compliments of his courtroom clerks): #savefrank #runforfrank. In the end, Frank was saved… by 9 seconds!

October 2019

Recreational Marijuana Goes on Sale January 1st and Dispensaries are Getting Ready

tarting January 1, 2020 recreational marijuana will be legal in the State of Illinois. There are several polls that were conducted earlier this year, which found the majority of Illinois citizens support the legalization of recreational marijuana, taxing it and regulating it just like alcohol, while only 35% oppose it. Similarly, an additional poll conducted in March by the Paul Simon Public Policy Institute in Southern Illinois found that 66% of the citizens favor the legalization of recreational marijuana if taxed and regulated like alcohol. So, what will the landscape look like on January 1, 2020, and where will recreational sales take place? While some things are still in flux, and many communities are in the process of debating their options, with 3 months left

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to go there are some things that we do know. Included in the comprehensive recreational marijuana bill, which was signed by Governor Pritzker, was a provision that allows the state’s present 55 medical marijuana dispensaries to apply to sell recreational marijuana. Additionally, these dispensaries can apply for a license for a second location. That means, at a minimum, there could be 100 dispensaries selling recreational marijuana at the beginning of 2020. The medical dispensaries are now renovating their spaces and streamlining their process to serve more customers. Additionally, many of these dispensaries are beginning the process of staffing up so they will be ready on January 1, 2020. As one general manager at a dispensary said, “this is

The

Chief Judge’s Page a different ball game, this is recreational, now we’re including everybody.” The Mission Chicago South Shore Medical Marijuana Dispensary, one of the few dispensaries on the south side of Chicago, is building a classroom to be used for marijuana education and doubling the number of employees they have. They are also stocking up their stores with additional products such as edibles, vaping oils and paraphernalia, so that the customers will have more choices, and what’s available will more resemble the variety of products one might find in a liquor store. Budzu, a crowd sourcing site that tracks the price of marijuana, says marijuana presently costs between $15 and $20 a gram at medical dispensaries. Many people feel that

BY CHIEF JUDGE JAY W. UKENA

since there is still a federal prohibition on pot, the prices from state to state could be very different. As a general rule, most states only allow dispensaries to sell marijuana cultivated within that state’s borders, so it would be expected that there would be higher pricing if there is a supply shortage. However, as capacity ramps up, there could then be an oversupply, which could then lead to reduced pricing. Similarly, the Colorado consulting firm of Freeman and Koski warned that Illinois’ 20 licensed cultivation centers might not be able to meet the state’s initial demand for recreational pot, which would cause an expected shortage that would lead to product unavailability and drive prices higher. Some experts say despite the state’s plan to eventually

issue more licenses, there most likely will be a supply shortage, which is generally inevitable when state recreational sales kick off. This has happened in every state when the recreational markets first go online. As a result, many of the dispensaries in other states have been forced to cap the amount of recreational pot patrons can buy during a single visit. In addition, dispensaries will be required to keep a stockpile of medical marijuana for licensed patients with state medical marijuana cards. The Illinois recreational marijuana statute is by far the most comprehensive one passed by any of the current states that allow recreational marijuana sales. It is also the only one initiated by a state legislature rather than a voter’s referendum. However, although Illinois has already gone through its pilot program for medical marijuana, reviewed what has worked and not worked in other states, and has taken the time to draft comprehensive legislation, there will still be many unknowns when the bill takes effect on New Year’s Day.

Welcome

New LCBA Members Attorneys

Jacob Caudill Swanson, Martin & Bell, LLP. Johannah Hebl Matlin Law Group, P.C. David Kaufman Attorney at Law Ted V. Parker Johnston, Tomei, Lenczycki, & Goldberg, LLC. Richard Perna Fuchs & Roselli, Ltd. Scott Petty Foran Glennon Thomas M. Power Power, Rogers & Smith, LLP. Jeffery Ramirez Matlin Law Group, P.C.

You are invited to the

2019 Annual Membership

Holiday Party December 6, 2019 5:00 - 7:30 PM

Hors d’oeuvres and Good Cheer

Gloria Schmidt The Gloria Law Group Joan Vasquez The Law Office of Joan Vasquez

300 Grand Avenue, Waukegan

Anne Doherty Velez Law Office of Deanna J. Bowen Professional Kaitlyn Costello Sally Fleissner Schlesinger & Strauss Students Vanessa N. Castrejon Laura Smithson Stephanie Wollar

Need a lawyer?

Don’t know who to call? The Lawyer Referral Service (LRS) is designed to make it easy to contact an attorney who practices in Lake County. Referrals are to PRIVATE attorneys that will charge customary fees for any legal services rendered. Referrals are based upon an attorney’s area of practice and NOT based on fees. There are two ways to obtain a referral:

(847) 244-3140

www.lakecountylawyer.info

Available Monday through Friday from 8:30 a.m. to 4:30 p.m. When you call, a representative will ask you to briefly state your legal problem. The LRS cannot give legal advice, but will refer you to an attorney that you may contact. • Select area of practice • You will be provided with the contact information of a LRS attorney

October 2019

Here They Come

s I sit here in my office on this beautiful 85-degree October day, two things come to mind. One, there must have been some printing error on my calendar because it says that 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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the holiday season is fast approaching. Two, why is it 85 degrees in October? Global warming, polar vortex, or the fact that Lake Minear is in my back yard thanks to the Des Plaines River. (Bitter party of one.) I called the calendar printing company who assured me that there was no printing error and the holiday season is almost upon us. I called the National Weather Service to complain about my back yard and they kept hanging up on me. So, I guess we have to focus on the holidays. The holiday season can be both a festive and fun time or a difficult and depressing time. For the most part, the members of the Lake County Bar Association/Foundation are able to make a comfortable living and will be able to enjoy the holidays. Unfortunately, there are many people in Lake County who donâ&#x20AC;&#x2122;t have the resources or means to enjoy a holiday meal or

BY NICHOLAS A. RIEWER PRESIDENT buy gifts for the little ones. So, I am asking you to start thinking ahead and consider putting a little money aside to help others during this holiday season. You may ask: where can I come up with extra money to help others? Well, I did a little research and came up with a few examples. If you go to your favorite coffee house each morning and order a cup of coffee, you are probably shelling out about $4.00. If you ask that the coffee be flavored with something (which I donâ&#x20AC;&#x2122;t understand because I thought coffee was a flavor) you are probably spending $5.00 each morning for that cup of coffee. If you do that five days a week every week of the year, your coffee habit is costing you $1,300.00. There are probably many of us that have more than

one cup of coffee per day. By the end of the day, after having several coffees, you probably have a pretty good caffeine buzz going on. After a long day of work and caffeine, you may decide to stop at your local restaurant or bar to have a beer or a glass of wine. The cost of a pint of beer at your local microbrewery will be about $6.00. If you have five beers a week, that will set you back approximately $1,560.00 per year. If you choose to drink wine, you are usually paying around $10.00 per glass, which will set you back around $2,600.00 per year if you have five per week. If you have one cup of coffee, one pint of beer, and one glass of wine per day, that would set you back over $5,400.00 per year. (If this is the case, I would suggest you consider getting help.) Am I sug-

gesting you quit drinking beer and wine? Of course not, but I can’t believe that coffee is any good for you. In any event, the purpose of this column and all of my higher mathematical calculations is to demonstrate that it would be

relatively easy to set aside $500.00 or $1,000.00 over the year to help others at the holidays. As President of the Lake County Bar Foundation, I would love it if you would make a donation to the Foundation to allow

us to continue to fulfill our mission of helping others. If you are not inclined to give money to the Foundation, I would encourage you to donate to your favorite charity or cause to try to spread a little holiday cheer to those who other-

wise don’t have the means to enjoy the holidays. In any event, I hope you count your blessings and fortunes during the upcoming holiday season and hopefully, spread a little cheer to those who are less fortunate.

Fall Luncheons WAUKEGAN CITY HALL 12:00 – 1:30 pm October 22 Pro Bono Awards Luncheon November 19 ARDC Update with James Grogan

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. October 2019

A Grand, Tactical Illusion or a Litigation Pitfall? Only Time will Tell.

BY JEFFREY BERMAN

discovery motion arising in the context of a False Claims Act1 lawsuit presented a question of first impression within the Seventh Circuit: what federal common law standard is to be applied when determining whether a party put attorney-client communications “at-issue” and thereby waived the attorney-client privilege? 1

In doing so, it also revealed a potentially devastating predicament for unwary practitioners who could easily find themselves, and their clients, treading the dangerously narrow legal path between the Scylla of a privilege waiver and the Charybdis of abandoning or failing to prove a critical defense to liability.2 1

The False Claims Act (FCA), 31 U.S.C. §§ 3729 - 3733 was enacted in 1863 by a Congress concerned that suppliers of goods to the Union Army during the Civil War were defrauding the Army. The FCA has an important anti-fraud tool. Under the FCA, whistleblowers (called relators), may bring a lawsuit, often referred to as a whistleblower claim or qui tam claim, on behalf of the government to recover money that the government has wrongfully paid to private parties. The Act imposes treble damages, civil penalties, and attorneys’ fees on defendants. In addition, the Act grants relators a share of the government’s recovery—a reward for information leading to the government’s repayment. 2 See Burney v. Thorne Americas, Inc., 970 F. Supp. 668, 671 (E.D. Wis. 1997), cit-

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The pertinent dispute involves an action filed by Plaintiff-Relator Crystal Derrick (“Derrick”) against Defendants Roche Diagnostic Corporation, Roche Diabetes Care, Inc., Humana, Inc., and Humana Pharmacy, Inc. (together “Roche”) under the False Claims Act, alleging that Roche violated two provisions of the Anti-Kickback Statute.3 Derrick alleged that Roche agreed to forgive debt owed by Humana — giving the insurance company a financial windfall that allegedly was a kickback — in order to entice Humana to place Roche diabetes testing products on its formulary for Medicare Advantage members. Access to these formularies is valuable for Roche as it allows the company to sell its products to patients with government-funded healthcare. Derrick

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.

ing Homer, The Odyssey, book 12, ll. 75–140 (Robert Fitzgerald trans. 1961). 3 42 U.S.C. § 1320a-7b(b) and 42 U.S.C. § 1320a-7b(g).

alleged this scheme caused false or fraudulent claims to be submitted for payment by government health-care programs. She further alleged that Roche terminated her employment after she complained about the alleged fraudulent conduct.4 Among other affirmative defenses, Roche contended that Derrick’s “claims are barred because Roche … acted in good faith, in compliance with applicable law, and consistent with industry practice.”5 During discovery, Roche handed over documents that referred to Roche’s attorneys as having had a role in approving the Humana deal.6 Roche, however, withheld other documents from the production under an assertion of attorney-client communications, and Derrick moved to compel. In support of her motion, Derrick argued that by pleading the affirmative defense of good faith and also producing documents that showed it had consulted with counsel in connection with its agreements with Humana, Roche had injected its state of mind and, implicitly, its reliance on advice of counsel, into the case which waived the attorney-client privilege.7 Derrick thus argued Roche should be required to produce the documents in question, even though (or perhaps because) they reflect communications containing legal advice from Roche’s counsel. The Court summarized the issue presented as: “whether Roche has waived its attorney-client privilege by pleading as an affirmative defense that it ‘acted in good faith, in compliance with applicable law, and consistent with industry practice’ and by producing documents that show it consulted with counsel in connection with its negotiations with Humana.”8 The Court began its analysis by noting that attorney-client privilege is “one of the oldest recognized privileges for confidential communications” and that it “exists primarily to encourage full and frank communication between attorneys and their clients.”9 It further observed that “the attorney-client privilege can be waived, either explicitly or by implication.”10 Implied waiver, most

relevant to the inquiry, “can occur when a client asserts claims or defenses that put his or her attorney’s advice “at issue” in the litigation.”11 The Court also observed that the Seventh Circuit had not previously provided specific direction as to the “standard for when a party waives attorney-client privilege by putting privileged information ‘at issue’ in a case.”12 The Seventh Circuit, however, seemingly had embraced by implication a standard adopted in the Third Circuit.13 Under that standard, the “at issue” waiver applies only where the client asserts a claim or defense and attempts to prove that claim or defense by disclosing or describing attorney-client communication.14 Following the lead of the Seventh Circuit, a number of district courts within the Circuit had since applied the Third Circuit standard.15 The Court likewise found the Third Circuit’s treatment of the issue persuasive because the test properly struck a balance “between the presumption that a waiver of attorney-client privilege is to be narrowly construed and the principle that a party should not be able to selectively disclose privileged information it believes works to that party’s advantage.”16 According to the Derrick Court, the “at issue” waiver doctrine thus “is limited and ‘should not be used to eviscerate the attorney-client privilege’.”17 “Merely asserting a claim or defense to which attorney-client communications are relevant, without more,” therefore, “does not constitute a waiver of attorney-client privilege.”18 Instead, the Court concluded the proper standard requires that the party “must affirmatively put at issue the specific communication to which the privilege attaches before the

United States ex rel. Derrick v. Roche Diagnostics Corp. exposes a difficult, potential dilemma for defense attorneys.

United States ex rel. Derrick v. Roche Diagnostics Corp., 2019 WL 1789883, *1 (N.D. Ill. April 24, 2019). 5 Id. at *1. 6 Id. at *3. 7 Id. at *1. 8 Id. 9 Id. citing United States v. BDO Seidman, 337 F.3d 802, 810 (7th Cir. 2003) and United States v. Zolin, 491 U.S. 554, 562 (1989). 10 Id., citing Lorenz v. Valley Forge Ins. Co., 815 F.2d 1095, 1098 (7th Cir. 1987). 4

11 Id., citing Paters v. United States, 159 F.3d 1043, 1047 (7th Cir. 1998). 12 Id. at *2. 13 Id., citing Garcia v. Zenith Electronics Corp., 58 F.3d 1171, 1175 n. 1 (7th Cir. 1995) which cited to Rhone-Poulenc v. Rorer, 32 F.3d 851 (3d Cir. 1994). 14 Id., citing Silverman v. Motorola, Inc., 2010 WL 2697599 at *4 (N.D. Ill. July 7, 2010). 15 Id. 16 Id. at *3, citing Beneficial Franchise Co., 205 F.R.D. at 216. As the court noted in Beneficial Franchise, were the balance to be struck differently so that merely asserting a claim or defense would be sufficient to waive the privilege, “then any party asserting a claim or defense on which it bears the burden of proof would be stripped of its privilege and left with the draconian choice of abandoning its claim and/or defense or pursuing and protecting its privilege.” Beneficial Franchise Co., 205 F.R.D. at 216. 17 Id. at *2, quoting Silverman, 2010 WL 2697599 at *4. 18 Id.

October 2019

privilege will be deemed waived.”19 Furthermore, in order to “put the advice of counsel at issue by asserting a claim or defense,” the party “must attempt to prove that claim or defense by disclosing or describing an attorney-client communication.”20 Turning to the specific circumstances presented in the pertinent Motion to Compel, and applying the articulated test, the Court found that Roche had “not waived its attorney-client privilege merely by asserting the separate defenses of good faith and reliance on applicable law or by producing documents that indicate it consulted with counsel when it documented its agreement with Humana.”21 In the Court’s view, Roche “must not only assert a defense, but also attempt to support that defense by relying on advice of counsel or disclosing an attorney-client communication before it may be deemed to have waived the privilege.”22 In other words, waiver would only occur if Roche actually put counsel’s advice in issue, which it had not yet done. Instead, Roche had denied the allegations made by Derrick and asserted, generally, certain affirmative defenses. The Court concluded that this affirmative defense “does not automatically waive the privilege as to any communications Roche may have had with counsel concerning the legality of its agreement with Humana.”23 The Court also categorically rejected the argument that merely producing documents showing that attorneys were involved in documenting a deal with Humana and containing references to discussions that may have occurred between lawyers for Roche and Humana, and to the fact that Roche’s attorneys approved of the structure of the parties’ agreement, was a waiver of the privilege: “Attorneys, unsurprisingly, were involved in the purchase, rebate, and settlement negotiations between Roche and Humana. The mere fact that attorneys advised Roche on the agreement does not open the door 19 Id., citing United States v. Capital Tax Corp., 2011 WL 1399258 (N.D. Ill. Apr. 12, 2011) and Beneficial Franchise Co., 205 F.R.D. at 216. 20 Id. 21 Id. 22 Id. 23 Id.

for [Derrick] to examine all communications Roche had with its attorneys regarding that agreement. And while certain information discussed with or by those attorneys may be relevant to Roche’s defense, that is insufficient to strip Roche of the privilege in that information… as it is not yet clear whether or how Roche intends to use its consultation with, or any advice received from, counsel in defending this case.”24 The Court questioned how Roche would establish that it acted in compliance with law, without describing specific advice from counsel and establishing it followed that advice, noting the path is “unclear.”25 Roche had represented to the Court, however, that “it neither intends to offer an advice of counsel defense nor rely on its communications with counsel to show it acted in compliance with applicable law.”26 The Court took Roche at its word in that regard.27 It noted, however, that should circumstances change and Roche tries “to advance the defense it says it will not offer, then its privileged communications with counsel may be implicated and the issue will have to be revisited” and “the Court’s conclusion may be different.”28 The Court recognized, moreover, “that any analysis of a waiver of attorney-client privilege involves, to some degree, the question of fairness.”29 In that regard, it will not allow Roche to “use the attorney-client privilege as both a sword and a shield.”30 By stating that it does not intend to rely on any privileged communication to support its case, at this point, “Roche has chosen to sheath the sword and narrow the scope of its own defense.”31 Ultimately, the Court concluded: “the issue of fairness may not be fully explicated or developed until trial in the context of an analysis that may include Federal Rule of Evidence 403. The trial judge may have to decide what Roche can and cannot say about its attorneys’ involvement in documenting the agreement with Humana so as to preserve its privilege without prejudicing relator’s right to respond to or cross-examine Roche’s defense. But that discussion is premature at this early stage of litigation.”32 The Court therefore denied the Motion to Compel without prejudice, explaining that Derrick’s request was premature because Roche must not only assert a defense, but also attempt to support that defense specifically by relying on advice of counsel or disclosing an attorney-client communication, before it may be deemed to have waived the privilege. Whether it (or any practitioner in a similar circumstance) can both maintain that defense and avoid a waiver remains to be seen.

24 25 26 27 28 29 30 31 32

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Id. at *3. Id. Id. Id. Id. Id. at *4. Id. Id. Id.

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Succession Planning and the Coming Senior Tsunami

BY JOHN CESARIO

llinois is expected to see a dramatic rise in the number of attorneys over 65 years of age engaged in the practice of law over the next 10 to 15 years. This situation will present some challenges to the bench and bar, particularly as more practicing lawyers suffer from age-related impairments. In turn, clients may suffer from a lack of care and oversight by attorneys suffering from those impairments. The ARDC is attempting to address this challenge sentations to bar associations, the ARDC emphasizes by various means, including making presentations to the following points about creating a succession plan. bar associations and other groups relating to the aging First, attorneys should have written instructions of the profession and including relevant topics in the to family members or support staff to describe how to Proactive Management Base Regugenerate a list of client names and lation (PMBR) program approved addresses for both pending client John Cesario is Senior by the Illinois Supreme Court in matters and closed matters. In Counsel for the January 2017. this regard, Supreme Court Rule Administrator Another issue relates to the 769 is instructive. That Rule, of the Attorney need for sole practitioners to have a entitled Maintenance of Records, Registration succession plan in place in case the requires attorneys to maintain and Disciplinary Commission, and attorney becomes unable to attend records which identify the name he is responsible to client matters. The ARDC has and last known address of each of for representing added information to its website the attorneyâ&#x20AC;&#x2122;s clients and whether the Administrator on the topics of closing a law office the representation of the client in proceedings in which the ARDC is and succession planning. The is ongoing or concluded. This appointed Receiver pursuant to Supreme Court Rule 776. He has also worked as ARDC makes several presentations information is important for good a Special Public Defender in Jefferson each year to bar associations and office management because it County, and as an Assistant Stateâ&#x20AC;&#x2122;s other groups about how to create allows attorneys to list and review Attorney in Kane County. succession plans. In making preall matters that are subject to the

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attorney’s duty of care and diligence. Although not a rule requirement, attorneys should also maintain client telephone numbers and email addresses to facilitate communication with clients if the lawyer becomes incapacitated.1 Second, attorneys should have written instructions about how to locate a calendar or computer program that lists all pending matters and future court dates and filing deadlines on all cases. The instructions should include relevant user names and passwords. Since ongoing proceedings are time sensitive, they are of the highest priority, and any succession plan should focus on such matters. The plan should therefore include the names, titles and case numbers of all pending litigation matters, and the names and addresses telephone numbers and email addresses for all clients with pending matters. Third, attorneys should prepare careful instructions about any client trust accounts or escrow accounts. These instructions should identify the financial institution where accounts are located, the titles of all accounts and all account numbers. In addition, the attorney should describe where the client trust account records are located in the office. Fourth, there should be written instructions about how to access and retrieve messages from the voice mail system, email messages and where warranted, text messages from clients, colleagues and opposing counsel. Information about how to change the greeting to the voice mail system should also be included. This can be a simple and effective way to alert callers to the situation and to refer them to a contact person who can provide more information and arrange the return of documents to clients. Fifth, there should be instructions regarding closed

files. The instructions should describe where closed files stored and how those files are organized. The attorney should take care to identify any closed file that may contain an original will, deed or trust agreement that may require additional care and effort to return to the former client. Sixth, lawyers should consider whether to include a reference to the succession plan in initial attorney-client agreements so that clients are aware of the plan in case of the lawyer’s death or incapacity. The statement could be as simple as including a paragraph to note that in case of death or serious illness, the law office has made arrangements for attorney “John Smith” to wind-up the attorney’s practice. Time devoted to planning for unfortunate circumstances will bring peace of mind to sole practitioners and will be enormously helpful to family and friends attempting to close a law practice under difficult conditions. A good succession plan may also ease the cost of administering the estate of a deceased attorney, and facilitate efforts to sell the lawyer’s practice pursuant to the provisions of Rule 1.17 of the Illinois Rules of Professional Conduct. Interestingly, several States actually require attorneys to designate a successor in the event the attorney dies or becomes incapacitated. These jurisdictions differ slightly in the details, but in essence require every sole practitioner to state whether they have designated a lawyer, or law firm, to review files and records and communicate with clients if they became ill or died suddenly. Although the dangers are most acute with sole practitioners, lawyers who practice in firms should also establish procedures for disaster contingencies as numbers do not guarantee safety in the modern world.

Time devoted to planning for unfortunate circumstances will bring peace of mind to sole practitioners and will be enormously helpful to family and friends attempting to close a law practice under difficult conditions.

Additionally, Supreme Court Rule 769 provides that an attorney shall maintain all financial records related to the attorney’s practice, for a period of not less than seven years, including but not limited to bank statements, time and billing records, checks, check stubs, journals, ledgers, audits, financial statements, tax returns and tax reports.

CONCLUDING THOUGHTS AND OBSERVATIONS The challenge of an aging legal profession creates difficulties and opportunities for the bench and bar. There is an increasing need to develop programs to identify and address age-related impairments issues

October 2019

that seek to balance the need to protect the public with the need to respect the dignity and respect the abilities of senior attorneys. Older attorneys who may no longer have the ability or desire to practice law fulltime have many opportunities to serve the profession in pro bono capacities. The Illinois Supreme Court anticipated this phenomenon by amending Rule 756(k) to allow attorneys in inactive and retirement status to provide pro bono legal services under the auspices of a sponsoring entity that is a not-for-profit legal service organization. Finally, the ISBA has formed a Special Committee to study Succession Planning and Transition issues. The Special Committee has created a website with articles, proposed forms and information about how to implement a succession plan. See: For more information about LAP, visit our site at www.illinoislap.org, or contact the Chicago LAP office at 20 South Clark St, Suite 450, 312-726-6607 or 800527-1233. You may also send a totally confidential email to gethelp@illinoislap.org. No problem or concern is too big or to too small. You have the ability to affect the future of our profession for the better.

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October July 2019

Fear and Loathing in Waukegan An appeal for greater civility

BY MICHAEL S. STRAUSS

e currently live in a strange era. People can “post” or tweet about anything or anyone. Truth no longer seems to matter, nor does being civil or friendly with others. Taylor Swift recently released a song on that very subject entitled, “You Need to Calm Down.” She, like many other celebrities, has been a victim of online bullying. Whether you like Taylor Swift’s music or not, I think her lyrics are directly on point for what I am trying to address. Early on in the song, she sings, “Say it in the street, that’s a knock-out. But you say it in a Tweet, that’s a cop-out…You need to calm down, you’re being too loud… You need to just stop…You need to calm down.” I feel old writing this, but I remember a time when if you had an issue with someone, you spoke to him or her in person or actually called Michael S. him or her on the phone. Now, people Strauss is a text or email things they would never, partner at ever say to someone’s face. Worse yet, Schlesinger others write posts on Facebook, Insta& Strauss, LLC. He gram, Twitter, and other online media, is also the expressing things that they would never chair of say to someone’s face. the family After I graduated from the Universilaw section ty of Illinois College of Law, my first ascouncil of the Illinois sociate position was at the firm of Shaw State Bar Jacobs and Associates in St. Charles, Association. Illinois. Early on, one of the partners at the firm, Matt Shaw, sat me down and

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gave me some words of wisdom. He told me that my first responsibility as an attorney is always to my client. However, he also pointed out that while clients come and go, the lawyers you litigate against will be around for much longer. Matt explained that there is never any reason to personally attack another lawyer, and that attorneys should always be civil to one another. Further, he pointed out to me that it does not help the client to stoop down to the level of your opponents if they are being unprofessional. Recently, I received an email from an opposing counsel in connection with a pending divorce proceeding. The case had been close to settling at the end of December 2018, and it involved a dispute over maintenance. I represented the party who would be paying the maintenance. As we all know, the maintenance laws changed effective January 1, 2019. Due to a miscalculation from my opposing counsel and the lawyer’s feeling that the

amount of maintenance would be nearly the same in 2019 as it was in 2018, the case did not settle in 2018 and rolled into 2019. The case then dragged a bit because now the maintenance amount was much lower and the receiving spouse did not want to reasonably settle. In the midst of the attempts to settle, I received this email from opposing counsel: “Fuck you.” That was the entire email. This email came from an attorney I barely knew and who barely knew me. This attorney did not know anything about me or who I knew or associated with. This attorney failed to recognize that once the email was sent to me, I could have shared it with anyone and everyone, including all the judges and lawyers on the Illinois State Bar Association Family Law Section Council. I would never do that and I did not do that. But I am sure there are people that would. Reputations are hard to build and very easy to destroy. This attorney could certainly tell the client whatever he wanted to about the delay in the case or about me personally. However, writing these kinds of emails only inflame things for people going through an emotional event. His email was a personal attack. It is our job as attorneys to ease the struggle and look for a solution, not make it worse. When I got the idea to write an article about this topic, I also looked at emails that my partner, Gary Schlesinger, had received in a case he is currently working on. The opposing lawyer wrote him the following gems: “You’re an asshole,” “Quit the bullshit,” and “Stop the BS.” When Gary asked for some basic information from the opposing lawyer, the answer Gary received was that this lawyer would not “play games” and would not respond to the request. The failure by this lawyer to cooperate now will make more formal discovery necessary and will increase the litigation costs for both parties. This attorney called me “sweetie” in an email involving the same case. Again, like the email sent to me, the emails sent to my partner are personal attacks on the lawyer. These emails do not help the case in any way at all; they only serve to ratchet up the litigation. Civility seems to be dying. What is interesting is that when I tell a client that I get along with the opposing lawyer, or that the opposing attorney is a friend of mine, the client may initially not like that fact. However, the cooperation of the lawyers tends to lead to an easier and less expensive case for the client. The client does not gain an advantage or any benefit from my waging war against the other lawyer. As an attorney, you also never know when you may need help or a favor from any of the opposing attorneys, so what good does it do to burn bridges? I will end this article with a little story. Years ago, I represented a father in an ugly custody case. We had a guard-

ian ad litem appointed, who has since become a judge in Lake County. My opposing counsel did many things throughout the case to agitate me and my client. Sometimes, my opposing counsel would misbehave in open court while we argued the case before the judge. However, in court, I was always nice to the other lawyer. This frustrated the GAL to no end, and she would ask me why I was nice to the other lawyer. My behavior towards this lawyer was not a sign of weakness at all. The reason I behaved like that was because I had a duty to my client, and battling this other lawyer would not benefit my client in any way. In fact, it would make it worse for him by increasing litigation and costs. Believe me, I am not perfect. None of us are. But if we can at least try to be cordial, professional, and civil to those we work with on a daily basis, the positive effect will be felt by all. Cases will move quickly and easily. Stress levels for the parties and the attorneys would all go down. These are just a few of the benefits. All I ask of all of us, at least for one month, is to think before we hit the “send” button. Will what you write get taken out of context? Is the writing a direct attack on the opposing lawyer? If so, revise it before you send it. Plus, if you receive an email or text like the kind mentioned above, take a breath and try not to respond in anger. That will only serve to feed the flames and make matters much worse. I have seen a quote making the rounds online, and it states, “Dance like no one is watching, but email like it may one day be read aloud in a deposition.” I cannot give credit to the author of the quote as I have no idea who came up with it, but it is truth. Think before you hit send!

Reputations are hard to build and very easy to destroy.

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To register for this event, please contact Brian McClain at 847.377.3733 or bmcclain3@lakecountyil.gov.

October 2019

Restaurant review: Consume Gastropub

BY JOSEPH A. SALVI

e are in a golden age of beer and that is abundantly clear at Consume Gastropub in Lake Zurich. At Consume, there are two dozen craft beers on tap, full bar, and restaurant. Consume is located just east of Route 12 on Route 22 in a building that used to house the old Lake Zurich bowling alley. The bar/restaurant is in an open, bright, renovated room with a long bar, tables, and booths. It has great ambiance and vibe. The selection and quality of the beer is high end urday night out in March, I walked into Consume with and exceptional. The beer offered on tap for that day my wife and two younger daughters, asked the owner and a description is portrayed on two flat screens high who works the bar to change the channel from the above the bar flanking the one large television. The March madness NCAA basketball game to the NCAA menu offers small (appetizer) and wrestling championships. Without big (entrĂŠe) options. Some choichesitation, he turned the channel! Judge Joseph es are unique, and others are more Obviously, he is a man of great taste Salvi is typical fare (burger). The menu does and judgment. a Circuit change from time to time and most I recommend Consume and I Court Judge choices are excellent. You can not hope I will see you there. currently presiding in go wrong with most of their small the Probate dishes and the burger. Consume division. PriConsume opened in August of 569 W. Route 22 or to being 2016 and has four owners who are Lake Zurich, Il. 60047 appointed to very involved in the day to day oper1-847-550-4801 the bench in 2013 he was ations of the bar and restaurant. The Consumelz.com in private staff is helpful and friendly, and they practice for 21 years in Lake Zurich. add to the ambiance. I will forever be loyal to Consume because on a Sat-

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October 2019

Unlocking the Mysteries of the Gridiron

BY A CHARMING DOCKET JOURNALIST

t was a crisp autumn day when I received the opportunity to sit down with two of Lake County’s most prominent public figures, the notorious co-directors of the Lake County Bar Association Gridiron Show. Agreeing to be interviewed on the condition of absolute anonymity (despite it being common knowledge that the directing team is comprised of Assistant State’s Attorney Stella Day, and domestic relations attorney Craig Mandell, partner at Berger Schatz), I met two trench-coated figures wearing domino masks in their palatial studio space on the fourth floor of the Courthouse Tower. The shorter of the two spoke in a thick Russian accent while the taller used a voice modulator clearly bought from an advertisement on the back of a comic book. Charming Docket Journalist (“CDJ”): Well, I just need to say - off the bat - that you two are incredibly attractive and likeable. Day: Thank you. Mandell: We get that a lot. CDJ: Let’s say I just fell off a turnip truck in front of the bar office, what should I know about The Gridiron? Day: The Gridiron is one of the Lake County Bar Association’s proudest traditions – an evening of sketches and songs written, produced, and performed by the attorneys and judg-

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Charming Docket Journalist is a regular contributor to the Docket known by most but elusive to all.

es of the 19th Judicial Circuit. Mandell: They told us when appointed that we were co-chairing a “committee.” I have yet to participate in anything remotely resembling a committee. This group doesn’t legislate; we create. We don’t debate rules; we throw the rulebook out the window. CDJ: You’re coming off as a pair of major rebels right now. What makes The Gridiron so exciting and dangerous? Day: Edginess and the potshots we get to take at the profession and our local colleagues. CDJ: Let me get this straight: You market a biannual show to attorneys in the community, sell them tickets, and have them show up to be

made fun of? Mandell:That is the long and short of it, sir. Day: No one is safe: judges, clients, big law firms or solos. It’s all fair game. CDJ: How do you manage the egos of the attorneys and judges you are working with? Mandell: That has proven completely impossible. CDJ: What opportunities are there for LCBA lawyers to participate? Mandell: There are so many ways to get involved. We have a writer’s board who creates the show from scratch. The writing board is meeting monthly now through December. Once we’re in rehearsals, which will begin immediately after the winter holidays, we need actors, singers, dancers, and backstage crew. Newcomers will be joining several committed veterans who have been in many Gridirons past. Opening night is Friday, February 21, 2020 at the Gorton Community Center in Lake Forest. Separately, law firms (even solos) can get involved by sponsoring meals for the cast during the rehearsal process, or by taking advantage of the marketing opportunities the show offers. Day: The playbill for the event is always in heavy circulation because of the creative, hilarious ads and shoutouts to the cast from their colleagues, friends and family. CDJ: Do I have to be Broadway-level talented to be in the show? Are there auditions? Mandell:There are no auditions. Everyone who wants to be in the show gets to be in the show. Show up for the informational session and you’re in. Everyone gets stage time. If you don’t want to sing, you don’t sing. If, on the other hand, you want to sing, you’ll give us a sample of your abilities at the first rehearsal, but no one prepares audition pieces. So bring your personality and talent, and let us fill in the rest. CDJ: What other benefits can I expect to derive from participating in the Gridiron? Day: The benefits are infinite. There’s no better place to make friends in the LCBA than through the Gridiron. You see those lawyers walking around the courthouse smiling coyly at each other? Those are lawyers who have experienced the lifelong friendships created through the magic of the show. Mandell: Or they may just be random weirdos. Please be careful in your dealings with them. CDJ: What credence do you give to those who say

that doing a turn in The Gridiron is required in order to become a judge in this county? Day: 100% credence. Mandell: Lake County apparently demands artistic and talented judges. In my opinion, it’s nothing less than the people deserve. CDJ: What’s all this I hear about the promotion of alcohol use within the Gridiron? Day: I’m glad you asked that question. We want to go on record that our committee does not specifically promote alcohol use. Off record, we can’t deny our organization has always put joviality first. CDJ: What’s the time commitment for being in the show? Day: Beginning the 2nd week in January through the 2nd week in February, we meet twice per week on weeknights from 5:15 to about 7:30 p.m. at the Bar office in Waukegan. The actual evenings we meet will be determined by the availability of those who participate. We’ll get a consensus once the 2020 cast is assembled. Mandell: On the week of the show, we meet every night from February 17th – 20th, at the Gorton Center. Those rehearsals can go as late as 10:00 p.m. because we’re working out the technical kinks at that point. The show opens February 21 and closes February 22, 2020. CDJ: And how can your regular, run of the mill, Joe Shmoe get involved with the Gridiron committee? Mandell: Please reach out to us ASAP (cmandell@ bergerschatz.com or sday2@lakecountyil.gov) if you’d like to join the writing board, which is already in the process of developing the show. Watch The Docket and LCBA weekly email notifications for the date of our first informational meeting which will be in December, and please attend to hear basically what is already in this article but also to say “Hi.” CDJ: Can you give us a preview of what we’re going to see in 2020? Mandell: That information is under embargo. CDJ: Aw, come on! Day: I’ll tell you this: We’re extremely lucky to have an LCBA President in office who fully supports the arts. Steve Rice has been a fixture in the Gridiron as a writer, performer, and really, there’s no position in the show Steve hasn’t held. Mandell: He has been an inspiration to us all…We plan on roasting him alive. CDJ: Do you think he might cry? Day: We make no promises either way.

Save-The-Date: 2020 Gridiron February 21 & 22, Gorton Community Center, Lake Forest.

October 2019

2nd Annual Chili Cook-Off

BY KARISSA ANDERSON AND JOHN JOANEM

tudents are back in school. Football is being played. Pumpkin spice everything is now available. Summer is basically a fading memory. In recognition of the kick-off of the LCBA year after the traditional Summer Break, the Community Outreach and Diversity Committee hosted the 2nd Annual LCBA Chili Cook-off on September 5th from 4:30 to 6:30 pm, in the LCBA Member Center.

To recap, last year’s event had five entries from judges in the 19th Judicial Circuit for best bar Association chili. Judge Janelle Christensen won the inaugural title. This year, the Committee switched up the format in an effort Karissa Anto expand participation and invited derson, with Anderson Law, all LCBA committees to submit a P.C. and John chili entry in a Battle of the CommitJoanem with tee’s format. Apparently, our lawyers John L. Loanem and judges are a competitive bunch & Associates as the amount of entries more than serve as CoChairs of the doubled for this edition of the cookLCBA Commuoff. More than 40 people attendnity Outreach ed the event to catch up with one & Diversity another, network and socialize. But Committee. most importantly attendees gathered to taste and vote on whose chili was this year’s best. After all votes were tallied, win, place and show went as follows:

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1st Place – Elizabeth Olszewski/Civil Trials and Appeals Committee 2nd Place – Kathleen Curtin/LCBA Board of Directors 3rd Place – Judge Christensen/19th Judicial Circuit Now that all have been fed, it’s time for our LCBA committees to resume the work of meetings, management, planning and CLE. The Community Outreach and Diversity Committee would like to thank all participants and the committees they represented: • Elizabeth Olszewski with Salvi Schostok & Pritchard, P.C. representing the Civil Trials and Appeals Committee • Hon. Janelle Christensen, representing the 19th Judicial Circuit

• Kelly & Sheila Collins with Collins Family Law, LLC, representing the Family Law Committee • Kathleen Curtin with Curtin Law, LLC, representing the LCBA Board of Directors • David Del Re with the Law Offices of Del Re, representing the Judicial Selection Committee • Jennifer Howe with Lesser Lutrey Pasquesi & Howe, LLP, representing the Trusts and Estates Committee • Amy Lonergan with Finn & Finn, LTD, representing the LCBF Board of Directors • Steve McCollum with McCollum Hodkinson, P.C., representing the Criminal Law Committee • Nick Riewer with Strategic Divorce, representing the LCBF Board of Directors • John Rizzo with Linn, Campe & Rizzo, Ltd., representing the Worker’s Comp Committee • Perry Smith with Wysocki & Smith, representing the LCBF Board of Directors • Hon. Nancy Waites (Ret.) representing the Community Outreach & Diversity Committee • and of course, the work of Dale, Jose and Katie for their work in making the 2nd Annual LCBA Chili Cook-off a savory success.

October 2019

Board of Directors’ Meeting

The

Meeting Minutes BY TARA R. DEVINE SECRETARY

August 22, 2019 CALL TO ORDER: 12:10 PRESIDENT’S REPORT: Action Items: 1. Consent Agenda: Moved to approve and passed. BOARD MEMBERS PRESENT Stephen Rice President Hon. Patricia Cornell First Vice President Joseph Fusz Second Vice President Tara Devine Secretary Hon. Christine L. Bishop 2017-2020 Director Katherine S. Hatch 2017-2020 Director Thomas A. Pasquesi 2018-2021 Director Dwayne Douglas 2019-2022 Director Daniel Hodgkinson 2019-2022 Director Dale A. Perrin, Executive Director

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a. July Minutes b. July Members Assigned out new members to call and welcome new members to the LCBA and invite to the next Luncheon. 2. Treasurer’s report; a. July 2019 Financial Report: President and Executive Director went through Total Revenue, Total Expenses and Net Operarting Income to date. OLD BUSINESS: 1. Current Membership Stats: a. Renewed – 641 / Suspended (not renewed) – 251 / Renewed with Open invoices: 48 b. Access Passes Sold: 750 NEW BUSINESS: 1. ByLaws Committee: Steve Rice, Hon. Patricia Cornell, Kathleen Curtin, David Del Re, Hon. Elizabeth Rochford, Don Morrison, Tom Gurewitz. Request motion to approve

listed members of the committee. Moved to approve and passed. 2. Policy allowing committees to allocate up to 20% of event sponsorship income to offset costs of approved extracurricular attendee activities: Request motion to approve a policy that allows an LCBA committee to allocate up to 20% of the sponsorship income that the committee generates for a particular event (such as a seminar) to offset the cost of approved extracurricular activities at that event. • Discussion on the purpose and application of a potential policy allowing committees to allocate up to 20% of general sponsorhip income to offset costs of approved extracurricular attendee activities. • General Sponsorship (sponsoring seminar as a whole) compared to vs. Specfic Sponsorship

(sponsorship something specific). • Matter will be continued and discussed at the next Board Meeting. 3. IICLE Share Program: IICLE Share Program is an on-line CLE program where we can upload our CLE programs to make them available to members and non-members and receive 60% of revenue. Initial cost of equipment estimated at $2500 (of which IICLE will reimbursement us 50%). Request motion to approve initial expenditure of up to $2500 to purchase Padcaster Studio equipment and 10.5 inch iPad Air of which 50% will be reimbursed by IICLE, and enter into agreement with IICLE to participate in their IICLE Share Program. Motion to approve initial expenditure of up to $2500 to purchase Padcaster Studio equipment and 10.5 inch iPad Air of which 50% will be reimbursed

by IICLE, and enter into agreement with IICLE to participate in their IICLE Share Program. Moved to approve and passed. 4. Gridiron planning subcommittee: Discussion on marketing, ticket prices, program, sponsorships, budgeting issues, etc. Volunteers: Stephen

Rice, Dale Perrin, Kathleen Curtin, Hon. Patricia Cornell 5. Strategic Planning sub-committee: Discussion deferred to next week. Committee Liaison Reports: Director Liaisons to report on activities of their assigned committee(s)

1. Civil Trial & Appeals: 2. Community Outreach & Diversity 3. CLE 4. Criminal Law 5. Debtor/Creditor 6. Docket 7. Family Law 8. Golf Outing 9. Judicial Selection & Retention 10. Local Government

11. Real Estate 12. Trust & Estates 13. Young & New Lawyers Updates given by Committee Liasons Motion to adjourn: 1:09 Motion to Adjourn: Moved and Approved Next Board Meeting Date: September 19th

2019 LAKE COUNTY UPDATE LUNCHEON PRESENTERS:

Lake County Board Chair, Sandy Hart Hon. Margaret Mullen (ret.) Chief Judge, Jay Ukena Public Defender, Joy Gossman Circuit Court Clerk, Erin Cartwright-Weinstein LCBA President, Stephen Rice Sheriff Department Chief of Staff, Anthony Vega States Attorney, Lisle Stalter ISBA President, David Sosin

October 2019 25

So, what’s new with you?

ome October 1, there will only be 92 days till the new year. Probably less by time you receive and read this. Assuming you read this. 31 days till Halloween, which now days seems to be the beginning of the holiday season. Christmas decorations have been out in Sam’s Club and Costco for several weeks not. I actually saw a lighted Christmas tree in someone’s living room last week as I was jogging in the morning. I’m not really sure where I’m going with this other than wow, did this year go by fast. With all that’s going on, I’m sure the next 92 days will be a complete blur. Let’s see, there’s the Criminal Law Seminar in Milwaukee in October, followed by the Pro Bono Awards Lunch which recognizes the amazing volunteer efforts of your fellow attorney and

26 The Docket

will feature guest speaker Kwame Raoul. The law office of Fuqua Winters, LTD, is celebrating their 100 Anniversary by hosting an LCBA Member Reception on October 24. November brings the annual Trust & Estates Seminar at the Knollwood Club, the annual ARDC Update member luncheon, and of course Thanksgiving. December kicks off with the annual Holiday Party on December 6, at the LCBA office for the second year in a row. Not only will we have a great time celebrating an amazing year, one lucky person will win a week’s stay in 2020 in the Presidential Suite at the beautiful Pueblo Bonito Sunset Beach Golf & Spa Resort in Cabo San Lucas. Be sure to get your tickets before then. Only $25 per ticket or 5 tickets for $100. You do not need to be at the holiday party to win,

In the

Director’s Chair

but why wouldn’t you? Mixed in with these main annual events are numerous committee meetings, several CLE lunch programs, and word on the street is a possible Judge retirement which means the Judicial Selection & Review committee will be in full swing again. 2020 activities are already being planned and organized including the ever-popular Gridiron in February, a multi-bar association Real Estate Committee Conference in Nashville in March, the Family Law Committee Conference in Albuquerque in April, and much more. Other benefits and activities being worked on for next year include updating the Association’s By-Laws; Updating the Strategic Plan; Revising and expanding Lawyer Referral Program and our Website. Any ideas,

BY DALE PERRIN EXECUTIVE DIRECTOR

suggestions or input you might have on any of these are welcome and encouraged. One of, if not THE most challenging aspects of this job is keeping our member database accurate and up to date. We, LCBA Staff, do our best to keep your info updated and fill in missing info, but we don’t know what we don’t know. I urge every member to take 10 minutes, anytime of the day, any day of the week, to login to your profile page and check and update your info. Of most importance is all your business info (firm name, address, contact info, website address, LCBA Committees you’re interested in, ARDC number and issue date, etc.). You’re always welcome to contact the office anytime between 8:30 – 4:30 if you’re technology challenged, or just prefer to talk to someone.

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October 2019 27

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 (Even Mo.) Docket Committee

LCBA

12:15-1:15

2nd Tuesday

LCBA

12:15-1:15

LCBA

4:30-5:30

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

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.

28 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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October 2019 29

300 Grand Avenue, Suite A Waukegan, IL 60085 Tel: 847-244-3143 Fax: 847-244-8259

MEMBER RECEPTION October 24, 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.