THE BAR SHOW GOES ON! THE CBA’S IRREVERENT MUSICAL COMEDY REVUE GOES VIRTUAL FOR 2020!
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Margaret Battersby Black
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CBA RECORD CONTENTS
November/December 2020 • Volume 34, Number 6
4 Editor’s Briefcase The Trials of 2020 6 President’s Page
INSIDE THIS ISSUE 20 The Illinois Constitution at 50: A Reform Charter with Unrealized Potential By James D. Wascher 25 6 Steps to Effective ZoomMediation By Judge Morton Denlow (Ret.) 27 Jurisdiction Should Be Addressed at the Threshold of Appeals By Libby S. Deshaies, Michael T. Reagan, and Matthew R. Carter
Reflecting on the Lives Our Nation Has Lost
8 CBANews 16 Chicago Bar Foundation Report 18 The Pulse 41 LPMT Bits & Bytes Holiday Tech 42 Legal Ethics More on the Pandemic
31 My Journey with Covid-19 By Judge Kristal Rivers
32 Some Observations from a Practitioner of 68 Years By Jack Joseph
YOUNG LAWYERS SECTION
34 Goodbye 2020, Hello 2021 with a Focus on Happiness By Jeffrey Moskowitz, YLS Chair
35 The SECURE Act: A Hidden Source of Student Debt Relief By Lance Sherry and Robert Schur
The CBA Record (ISSN 0892-1822) is published six times annually (January/February, March/April, May/June, November/ December, November/December, November/December) for $10 per year by The Chicago Bar Association, 321 S. Plymouth Court, Chicago, Illinois 60604-3997, 312/554-2000, www. chicagobar.org.Subscriptionsfornon-membersare$25peryear. PeriodicalspostagepaidatChicago,Illinois.POSTMASTER:Send addresschangesto CBARecord ,c/oMembership, Chicago Bar Association,321SouthPlymouthCourt,Chicago,Illinois60604. Copyright2020byTheChicagoBarAssociation.Allrightsreserved. Reproductioninwholeorinpartwithoutpermissionisprohibited. Theopinionsandpositionsstatedinsignedmaterialarethoseof theauthorsandnotbythefactofpublicationnecessarilythose oftheAssociationoritsmembers.Allmanuscriptsarecarefully consideredbytheEditorialBoard.Allletterstotheeditorsare subjecttoediting.Publicationofadvertisementsisnottobe deemedanendorsementofanyproductorserviceadvertised unlessotherwisestated.
About the Cover The issue’s cover was created by Larry H. Aaronson, a partner with McDonnell Boehnen Hulbert & Berghoff LLP, and a long-time Bar Show cast member. Thank you Larry!
2 020 has been a year of trials. Not the legal kind, but the life kind. America has been dealing with a public health crisis, an economic crisis, a political crisis, and a civil rights crisis – all at the same time. Any of them alone would induce immense worry. But four simultaneously? In the words of OprahWinfrey, well-known philoso- pher and talk-show host, “You get to know who you really are in a crisis.” These trials have paraded life’s impermanence, ironies, and vicissitudes, and have reminded us that nothing in life is guaranteed. Nothing. These trials have taught most of us something about our individual capacity to adapt in a crisis, and to sacrifice for the sake of our collective well-being. These trials have unveiled America’s injustices, inequities, and conflicts, and given us names, faces, and headlines, which have aroused public outcry the likes of which have not been seen since the mid-1960s. Sadly, it also ignited hate groups and hate incidents. Will this finally be the end of America’s complacency, and the onset of the next stage in the process of fulfilling Dr. King’s dream? These trials have caused us to refuse the lie, and to question what is truthful, what is mis- information, and what is disinformation. As events have demonstrated, unconcern with truth, as well as with science and history, can have dire consequences. These trials have further stoked divisions in a nation divided on almost any point, includ- ing this one. These trials have made us rethink our own priorities, take nothing for granted, and, as my grandmother liked to say, “Count our blessings.” These trials have altered the way lawyers and judges operate, testing our professional resilience and our personal coping skills. There will be no returning to the practice of law as it was before March 2020. As a Forbes magazine recently reported, “Distance learning, remote workforces, and online courts are just the beginning of a transformed legal function and the new models what will drive education/training, delivery, and dispute resolution. The pandemic has illuminated the opportunity for law to do better.” As for the local legal world, we have taken a digital leap that will make our legal systemmore efficient and agile. And, at long last, we may be able to bid a permanent adieu to the Circuit Court of Cook County’s use of that holdover from the early 1800s, carbon paper. These trials have left us, at times, feeling vulnerable; at times, feeling numb; at times, feeling anxious; at times, feeling lonely; at times, feeling disillusioned; and, much too often, feeling shellshocked. On the other hand, we have witnessed acts of bravery by front line responders, by essential workers of all kinds, by patients and their families, and by many others. And we have experienced, though not enough, a sense of connection, a sense of gratitude, a sense of empathy, a sense of hope. Evan after the immediate health threat has passed and a safe and effective vaccine becomes available, these and other trials of 2020 will remain with us, especially the legacy of systemic racism, joblessness, health care and education disparities, and other social needs. Hopefully, America will move forward and address each of the issues in a structural and durable manner. About 2021, I am reminded of something Henry Kissinger once said, “There can’t be a crisis next week. My schedule is already full.” My advice: fasten your mask tightly around your face and stay buckled, because there is a strong possibility of experiencing more tumult next year. Oh, and enjoy the ride. Rehearing “We are all dependent on one another, every soul of us on earth.” — George Bernard Shaw BY JUSTICE MICHAEL B. HYMAN, EDITOR-IN-CHIEF The Trials of 2020 EDITOR’S BRIEFCASE
EDITORIAL BOARD EDITOR-IN-CHIEF Justice Michael B. Hyman Illinois Appellate Court
ASSOCIATE EDITOR Anne Ellis Proactive Worldwide, Inc.
SUMMARY JUDGMENTS EDITOR Daniel A. Cotter Howard and Howard Attorneys PLLC
YLS JOURNAL EDITORS Kruti Patel Wintersteen Law Group Alexander Passo Latimer LeVay Fyock LLC Kaitlin King Hart David Carson LLP
Carolyn Amadon Samuel, Son & Co. Daniel J. Berkowitz Illinois Attorney General’s Of fi ce Amy Cook The Farmer Chef Alliance Nina Fain Janet Sugerman Schirn Family Trust Anthony F. Fata Cafferty Clobes Meriwether & Sprengel LLP Clifford Gately Hinshaw & Culbertson Jasmine Villaflor Hernandez Cook County State’s Attorney’s Of fi ce Lynn Semptimphelter Kopon Kopon Airdo LLC John Levin Kathryn C. Liss DePaul University College of Law Bonnie McGrath Law Of fi ce of Bonnie McGrath Clare McMahon Law Of fi ce of Clare McMahon Pamela S. Menaker Clifford Law Of fi ces Peter V. Mierzwa Law Bulletin Media Kathleen Dillon Narko Northwestern Pritzker School of Law Adam J. Sheppard Sheppard Law Firm, PC Richard Lee Stavins
Robbins, Saloman & Patt, Ltd. Rosemary Simota Thompson Judge E. Kenneth Wright, Jr. Circuit Court of Cook County
THE CHICAGO BAR ASSOCIATION Sharon Nolan Director of Marketing
4 November/December 2020
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PRESIDENT’S PAGE BY MARYAM AHMAD Re ecting on the Lives Our Nation Has Lost
The Chicago Bar Association www.chicagobar.org
President Maryam Ahmad
number are more than statistics. While I find the media focuses on celeb- rities and high profile individuals who have passed away, I find my attention drawn to the histories and narratives of those not as widely known—the regular folk, if you will. I think about the teachers, store stockers, transportation workers, com- munity activists, entrepreneurs, novelists, musicians, farmers, prayer leaders, first responders, and military veterans who comprise the more than 236,000 lives lost. I am very sensitive to surviving family members who fear the larger world is oblivious to the impact of their loved one on the world. Often, those who experience such a significant loss yearn to have others acknowledge that loss. Thus, I’d like to take space in this month’s column to honor the memory of the over 236,000 U.S. residents who have passed away from Covid-19. I’d also like to introduce you to a few outstanding local residents whose lights and contributions were extinguished by this deadly disease. To the families and friends of those who have passed away, I say that your fellow residents grieve with you, even though we may not have access to a platform to share that sentiment more formally. Harold Davis, Jr. passed away on April 12. He was 63 years old and my friend. He was the founder and host of the “Butt Naked Truth” radio show on Chicago gospel station WBGX. Harold’s shows addressed politics, self-empowerment, business development, and education.
First Vice President E. Lynn Grayson
Second Vice President Timothy S. Tomasik
Secretary Ray J. Koenig III
Treasurer John C. Sciaccotta
Executive Director Elizabeth A. McMeen
E very evening I watch network news, most stations begin the coverage with a bold red, six-digit number. It represents the number of people who have passed away this calendar year from Covid-19. With no vaccine and no cure, the coronavirus continues to kill globally. This past May, I read a New York Times article that provided one or two sentences about everyone who had died in the United States from Covid-19. At that time, approximately 100,000 residents had passed away from the disease. Although little was written about each person, it was enough to at least give a brief snap- shot of the person. Now, as U.S. Covid- 19 deaths—that we know of—exceed 236,000, I continue to reflect on the tre- mendous loss our nation is suffering from the deaths of so many talented people. The number of those who have passed away is staggering, but the souls represented by this
Immediate Past President Jesse H. Ruiz BOARD OF MANAGERS Jonathan B. Amarilio Hon. Charles S. Beach II Alexis Crawford Douglas Charles P. Golbert Kathryn C. Liss Michael R. Lufrano Hon. Clare Elizabeth McWilliams
Juan Morado, Jr. Lauren S. Novak Hon. Nichole C. Patton Brandon Peck Ashley Rafael Trisha Rich Antonio M. Romanucci Ajay N. Shah
CBA President Maryam Ahmad recently interviewed Illinois Senate President Don Harmon (39th District) about Illinois’ legislative agenda during Covid-19. The program is available for on demand viewing (and MCLE credit) at learn. ChicagoBar.org.
Hon. Maria Valdez Adam M. Zebelian
6 November/December 2020
He was a rare community voice and was admired and respected by many for his fearless candor. While talk radio was perishing in most markets, Harold Davis and the “Butt Naked Truth” enjoyed a national audience. Talk radio and com- munity development will not be the same without him. Evelyn Bloomberg (Evelyn Anne Peter- son) also passed away on April 12 from the coronavirus; she was 90 years old. Evelyn was born in Phnom Penh, Cambodia, where her parents were Christian mis- sionaries. During World War II, Evelyn and her family were prisoners of war from November 1941 until the end of the war. In October 1945, the family boarded a US troop transport carrying soldiers returning to the US. They arrived in New York City in November 1945. Evelyn was 16 years old. She eventually became a nurse and worked in several hospitals in Michigan and in Oak Park, Illinois for nearly 60 years. Evelyn loved singing and sang in many choirs throughout her life. Recently, she lived in Chicago and was cared for by
the Little Sisters of the Poor. Walter J. Blase’s colleagues considered him the epitome of a public servant. He served our nation in the VietnamWar. He was a retired Deputy Chief of Niles and Palatine Rural Fire Departments. His col- leagues wrote that he was a hardworking man who inspired generations of firefight- ers during his decades of service to subur- ban fire departments. He passed away at the end of April; he was 78 years old. Roberto Escobar worked at El Mila- gro, a tortilla factory on Chicago’s West Side. He immigrated to Chicago from El Salvador as a teenager. During April, Mr. Escobar’s parents traveled from El Salva- dor to Chicago to visit him and his wife. It was the first time they had seen each other in nearly 20 years. The family’s joy quickly turned to sorrow, as Mr. Escobar contracted Covid-19 in April, during a period when several other co-workers had tested positive. His parents and wife tested negative for the virus. Mr. Escobar passed away Friday, May 1; he was 37 years old, with no pre-existing conditions.
Tarah Frieson said, “My mother was my everything. She was my rock.” Wanda Bailey passed away in early April, a week after her younger sister, Patricia Frieson, was Illinois’ first resident to die of the coronavirus. According to family members, nearly every time Wanda Bailey saw her son, she would cry as if it was the first time she had seen him. “It was so warming to know that you were loved,” her son Tarah said. Ms. Bailey was 63 years old and lived in Crete. I began this Bar year by discussing the importance of relationships. For years, I have personally advocated for principles of diversity, working to emphasize the common traits that make us Americans, versus those traits of difference. However, I never imagined that collective grief, loss, and suffering from a pandemic would become a unifying principle. Certainly, the pandemic continues to underscore life’s precious and fleeting nature and the importance of our most treasured human connections. Now, more than ever, we must seize each day.
CBA RECORD 7
CBANEWS CBA Bar Show Makes “Change of Venue” for Easy Online Viewing By Jay Schleppenbach W ith law offices, bar association meetings, and even court appearances moving online to
promote safety in the era of Covid-19, perhaps it is no surprise that the 97th edition of the CBA’s much-beloved Bar Show has followed suit. But Change of Venue: Bar Show Home Edition is hilarious and tuneful in a way few case- management Zoom calls are. “We’ve heard so many people say how terrible 2020 has been, so we’re hoping the Bar Show can live up to its tradition online and be a fun escape for CBA mem- bers,” explained Bar Show co-producer Carissa Meyer, Orleans Canty Novy, LLC. Accordingly, this year’s show features the same high-quality performances of musical theater and pop parodies with political and pop cultural humor that Bar Show audiences have come to expect. But the songs are released online at bar- show.org rather than presented in the less-distanced environment of a theater. They will roll out over the course of weeks, rather than all at once, so audiences can get much-needed laughs as the pandemic continues. And they are free! “These videos will be perfect for watch- ing on your phone, on your tablet, on your laptop, when you have a break in between conference calls or drafts of your brief,” suggested returning cast member and writer Sally Pissetsky-Steele, Pissetzky and Berliner. “And hopefully they will be funnier than the latest from CNN or the Wall Street Journal .” Of course, writing, rehearsing, and videoing a musical parody show presents significant challenges when the all-attor- ney cast must, like the rest of us, observe masking guidance and maintain six-feet
Bar Show cast members Mike Weaver and Chris Johnson are ready to “Call the Whole Thing Off” in a recent “Change of Venue: Bar Show Home Edition” video.
of distance at all times. So the production team, led by director Marla Lampert and musical director Brad MacDonald, came up with a protocol for remote rehearsals and performances. Zoom provides a cozy space to learn music and choreography for each number, while the filming is accomplished via cell phone in each cast member’s individual home. Long-time cast member Larry Aaronson, McDon- nell Boehnen Hulbert & Berghoff LLP, then bravely makes his way through all of the footage, compiling all of the best reaction shots and removing any stray pets or family members who may have wandered into frame. “It’s a lot of work but it’s also a lot of fun,” Aaronson said. “The creative process of producing a polished video composi- tion given the component parts is really satisfying.” And what kind of numbers will be part of that final product this year? While head writers Cliff Berman, Option Care, and
David Miller, Blitt And Gaines, certainly won’t be pretending that the pandemic hasn’t happened, they’re also not going to let it dominate when so many other interesting and strange things have been going on this year. So viewers can expect songs about Supreme Court nominations, the unprecedented and undeniably fasci- nating phenomenon that is QAnon, and of course the 2020 election. So set a bookmark in your web browser for the Bar Show at barshow.org, like the Bar Show on Facebook (facebook.com/ CBABarShow), or subscribe to the Bar Show’s YouTube page (youtube.com/Bar- ShowVideo). Then frequently check back for the top-notch vocal stylings and timely humor you’ve come to expect from this zany group of lawyers turned thespians.
Jay Schleppenbach is of Counsel at Dechert LLP and is a long-time cast member of The Bar Show.
8 November/December 2020
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Ways to Save • Free monthly CLE seminars - watch live or on demand Webcasts, enough hours available to fulfill your MCLE requirements. www. chicagobar.org/cle • Free noon hour practice area committee meetings - earn IL MCLE Credit when you attend via live Webcast. www.chicagobar.org/committees • Free MCLE Credit Tracker - automatically tracks CBA attendance, add your non-CBA credits. www.chicagobar.org/cle • CBA Newsstand - free daily email from Lexology providing valuable practice area updates. www.chicagobar.org, under Resources Expand Your Career and Your Networks • Job search/career development resources for all career stages - free virtual one on one speed counseling, interactive round table seminars and tips. www.chicagobar.org/CAP • One-to-one and group mentoring programs. www.chicagobar.org, under Programs • Networking, and leadership opportunities through the YLS, Alliance for Women, and CBA/YLS committees. 312-554-2131 • Volunteer/pro bono activities - get free legal training and hands-on experience for your resume. 312-554-8356 • Save on legal software and other business expenses. www.chicagobar.org/save
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Members Invited to Apply to New CBA Mediation Service By Judge Thomas R. Mulroy W hat is the litigant to do: the civil justice system is too slow, too expensive and too uncertain; lowing procedures: 1. Parties must be represented by counsel. A roster of CBA mediators from that roster the parties will agree to a media- tor.
mediators and provide it to parties request- ing a mediator and will make it publicly available on the CBA Mediation Service website. Because parties and their counsel will expect expertise from their prospective mediators, applicants must have been in the active practice of law for 15 years, be an attorney in good standing and have taken an intensive mediation training program. Each CBA member who applies to this program must submit an application which will detail training and experience as a neutral as well as a resume with the applicant’s professional background and experience. The CBA will use these forms to compile a roster of qualified mediators which will be publicly available and given to parties seeking a mediator. Applicants also may submit a short video detailing the applicants’ experience and philosophy of mediation, which will be given to any requesting party. The hourly charge for a mediator is $400. Of that amount, $50 per hour will go to the CBA for program administration and $350 to the mediator. There will be a minimum fee of $1,200 for each mediation (three hours) which will be payable to the CBA before the mediation begins. If the mediation goes longer than three hours the parties must pay the additional hourly fee within seven days of the conclusion of the mediation. The mediator will not be paid until the parties have paid the CBA. How the ServiceWorks Specifically, the Service will have the fol-
many cannot afford to use it. Non-lawyers and businesses cannot fathom the delay in resolving their cases in the 21st century and desperately seek alternative dispute resolution programs which are more efficient and more affordable than the justice system. The CBA has developed a platform (chicagobarmediation.org) for its members which will help lawyers with clients who want a more efficient, less expensive dispute resolution system and which will give our members the opportunity to mediate cases at an hourly rate of $400. Goals of the Service The CBA Mediation Service is designed to provide mediations which are efficient, effective, economical, and fair. The par- ties, who must be represented by counsel, can expect an excellent chance of resolu- tion while negotiating in a safe place with an experienced mediator. The Service is structured to meet the mediation needs of a variety of clients in a variety of cases such as: personal injury, family law, commercial, subrogation, and real estate. It will help parties resolve their disputes before or after a court filing. How to Apply CBA members who wish to act as media- tors should submit their applications and resumes. The CBA will prepare a roster of
2. The program administrator will then inform the mediator that the parties have requested him or her and will ensure that the mediator is available. 3. Once the mediator has agreed to take the case and has made certain that there are no conflicts of interest or other impedi- ment to conducting the mediation, the mediator will notify the program admin- istrator and the parties by e-mail and a date for the mediation will be set by agreement of the parties and mediator. Conclusion This mediation platform provides litigants with another option for alternative dispute resolution which is focused on efficiency and cost effectiveness and provides our members with the opportunity to help settle cases in a timely manner. To learn more visit www.chicagobarmediation.org or call (312) 554-2040.
JudgeThomas R. Mulroy serves in the Law Divi- sion of the Circuit Court of Cook County and is a past president of the CBA.
Medusa Revisited: Turning the Ugly Head of Gender Discrimination in the Legal Workplace
In the December 7 installment of the CBA’s “Advancing Equity for Women in the Law Series” Professor Kimberly Norwood, a Henry H. Oberschelp Professor of Law atWashington University School of Law in St. Louis, will present her leading-edge researchongender bias. Learnmore and register at learn.chicagbar.org.
10 November/December 2020
THE CHICAGO BAR ASSOCIATION MEDIATION SERVICE Resolve business and legal disputes in an ef fi cient, New CBA Service! | Cost-Effective! | Highly Trained Mediators! Virtual Mediation Available! cost-effective manner with experienced, trained CBA member mediators. The service is designed to provide media ti ons that are e ffi cient, e ff ec ti ve, economical, and fair. The par ti es, who must be represented by counsel, can expect a high chance of resolu ti on while nego ti a ti ng in a safe place with an experienced mediator. Our mediators must be CBA members with at least ten years of prac ti ce experience, and they must have completed a media ti on training course. The service is structured to meet the media ti on needs of a wide- range of clients and can help par ti es resolve their disputes before or a ft er a court fi ling.
HOW OUR MEDIATION PROGRAM WORKS
CBA mediators are focused on being e ffi cient, e ff ec ti ve, economical, and fair to help par ti es resolve their disputes before or a ft er a court fi ling. The CBA screens its mediators for extensive training, experience, and good standing with regulatory bodies. Our mediators can handle a variety of cases, including, personal injury, family law, commercial, subroga ti on, real estate, and many others (see list below).
The Chicago Bar Associa ti on established the Media ti on Program to allow members to act as mediators in personal injury, commercial, matrimonial, and other kinds of cases for a fee of $400 an hour. Par ti es reques ti ng media ti on must be represented by counsel.
TYPES OF MEDIATION CASES Attorney Malpractice | Business Divorce & Complex Ownership Disputes | Commercial Law | Contracts Construction | Divorce | Education/School Law | Environmental | Family Law | Insurance | Intellectual Property | Labor & Employment | Mechanic’s Lien | Personal Injury | Real Estate | Subrogation
Learn how our program can assist you at chicagobarmediation.org or call 312-554-2040.
Monitoring Manufacturing: Keeping Our Food System Safe By Amy Cook, Food Law Committee Chair and CBA Editorial Board Member A re you reading this while eating? You might not want to. While the American food system is table legs, floors, walls, and even ceilings. Environmental monitoring usually tests for pathogens but could be used to detect allergens as well.
If a pathogen or allergen is found, the entire batch should be considered adulterated. All may not be lost, though: the manufacturer could divert the batch to a customer that would add in a “kill step” such as cooking or pasteurizing. For instance, if the product is a spice that is not meant to be ready-to-eat, the manu- facturer could divert it to a soup company that would have a kill step of cooking the ingredients. When asked how Covid-19 has impacted his industry, Marshall replied that while the virus has not been shown to be transmitted through food, his firm does do Covid-19 controls for employees and facilities such as surfaces, wastewater, worn mask, and indoor air testing. In an interesting twist, he noted that China requires meat exporters to provide Covid- 19 test results. The Food Law Committee addresses FDA and USDA regulations, food truck regulation, safety and sanitation, class action suits, food compost and waste, and how Covid-19 is upending the hospitality industry. The Committee meets on the third Monday of every other month. Join the committee at www.chicagobar.org/committees.
extremely safe and sanitary, Douglas Marshall’s run-down at a recent Food Law Committee program of all the things that could go wrong when processing and manufacturing food was certainly eye-opening. Marshall serves as Chief Scientist at Eurofins, which has 900 labs in 50 countries to conduct testing, moni- toring and consulting to a wide range of companies. Marshall spoke on compliance with the Food Safety Modernization Act (FSMA), which is intended to prevent food-borne illness rather than merely responding to outbreaks. He said that FSMA brought environmental monitoring to the fore. Food manufacturing and processing clients should be engaging in testing to validate the effectiveness of control plans and to verify that their methods are giving them the outcome they expect. It also helps them protect their brand. Reasons manufacturers don’t test? Cost, fear of being closed down, loss of reputation, and “I trust my supplier.” Marshall says to assume raw materials contain pathogens. In a baseline sanitation program, clients should identify and sani- tize potential pathogen sites such as direct contact surfaces, conveyor belts, tubing,
The testing frequency depends on the history and trends of the facility, plant layout, and the type of product. Marshall says manufacturers should increase sam- pling if there is an out-of-spec result, a change in suppliers or ingredients, a leaky roof, construction, or new equipment installed. What kind of pathogens are important? “All of them,” says Marshall. But the big ones are salmonella, which is found in low- moisture environments, and listeria, which thrives in high moisture environments. To determine type and frequency of testing, clients should assess whether they have high- or low-risk foods. For example, a meat manufacturer may test 75 samples a day, while a honey producer may test five samples a quarter. It may sound obvious, but food manu- facturers should have a plan for pest control. Insects and rodents can harbor and transport pathogens. Some pests and sources of pathogens may not be obvi- ous—for example, birds congregating on roofs can contaminate facilities via water on roofs. Employees smoking outside and gravel parking lots that create dust can also be a source of harmful pathogens.
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12 November/December 2020
Lawyers in the [Virtual] Classroom: How a Decades-Old CBA Program Adapted to the Pandemic By Daniel J. Berkowitz, CBA Editorial Board Member A s students all around Chicago have returned to the classroom this fall, whether virtually, in-
only provides opportunities for students to understand the constitution better and how it applies to their lives, it also allows students to consider how they might be able to effect change in their community, state and beyond,” said Watson. The attorney volunteers likewise recog- nized the importance of keeping the pro- gram going. BenjaminT. Kurtz, Partner at Kirkland&Ellis, LLP, who has volunteered since he was a young associate in 2007, recalls “being mentored early on, that no matter how busy I got, I must always take time to give back and make a positive dif- ference in my community.” He sees the LIC program as “a great vessel to do that.” Kurtz found that for many of the students, the attorney volunteers “are the first lawyers they’ve met.” He sees it as a privilege to expose them to “the practice of law as a profession that, at the end of the day, exists to seek justice, right wrongs, and protect rights.” The LIC program exposes students to how lawyers think through and attack problems. “Students come to see that they possess these same critical think- ing skills,” said Kurtz. “The law becomes accessible, and students feel empowered to engage civically, or perhaps even consider a career in law.” Given the importance of the LIC program, all stakeholders were steadfast in seeing it continue. Over the summer, Watson scheduled remote attorney infor- mation training sessions for attorney vol- unteers “to learn about how the program would be administered, how to impart the lessons remotely, where to access remote curriculummaterials for visits and all other valuable information.” She also held a remote school partner information session for new and returning teacher and admin- istrators to provide the same information virtually, “including how they would now be partnering with their attorney/attorney teams prior to and during remote visits.”
The remote LIC program officially launched on September 8, 2020. Accord- ing to Watson, “despite the program’s operational change, attorneys, teachers and school administrators remain engaged and excited to connect with schools and stu- dents just as they have in previous years.” From the attorney volunteer perspec- tive, Kurtz has observed the same level of dedication. He reports that “interest and participation” among the Kirkland & Ellis volunteers “remains as high as ever.” Kurtz states the volunteers are “prepared to take our tried and true lessons to the virtual classroom and expect to have another stel- lar year of engagement.” While Kurtz andWatson both expressed a desire to see the program return to its in-person format as soon as it is safe to do so, they recognized some changes brought about by Covid-19 may be here to stay. Watson, for example, found that pro- viding attorney and school partner infor- mation sessions remotely created “more clarity for all parties involved and allows for more attorney volunteers to become involved and equipped even sooner than previous years.” Additionally, using Google Docs to allow new and returning teacher/ administrator partners to provide their availability for classroom visits online allowed Watson to “more efficiently and quickly connect school partners with attorney volunteers.” Attorneys or teachers interested in vol- unteering with the program should contact Tiffani Watson via email at twatson@ chicagobar.org.
person, or using a hybrid approach, so have the attorney volunteers in the long- running Edward J. Lewis II Lawyers in the Classroom (“LIC”) program. This year, for the first time, the LIC program has gone completely digital, allowing teachers to invite attorneys into their classrooms virtually to teach second-through-eighth- grade students about their rights and responsibilities under the law. The LIC Program—which was first ini- tiated by the Constitutional Rights Foun- dation of Chicago (“CRFC”) in the late 1980s, and transitioned to a CBA program in November 2019, following the closure of CRFC—was disrupted in March, like so many other aspects of our lives. The burden of re-envisioning the program in virtual form fell on LIC Program Director Tiffani M. Watson, M.Ed., herself a former middle and high school teacher and school administrator. “For over 30 years,” explained Watson, “new and returning attorney volunteers were trained on the LIC curriculum and the program’s specifics in-person via attor- ney information and training sessions before the start of the school year.” Those attorney volunteers were then partnered with teachers in classrooms across Chi- cagoland and visited three times over the course of 10-months. At each visit, the attorney volunteers would teach different lessons from the LIC Program curriculum. This year, rather than hold in-person training or schedule in-person classroom visits, Watson used her teaching back- ground and knowledge, to convert the tangible LIC curriculum materials into remote resources for teachers and attorney volunteers to access and use remotely. For her, the programwas too important to wait for a year (or longer): “The program not
Daniel J. Berkowitz is an Assistant Attorney General assigned to the General Law Bureau of the Illinois Office of the Attorney General.
CBA RECORD 13
A Special Notice to all Lawyers Who Reside in or Practice in Cook County
The Moses, Bertha & Albert H. Wolf Fund
he Chicago Bar Association manages the Moses, Bertha, and Albert H. Wolf Fund to aid
attorneys who reside or practice law in Cook County and are ill, incapacitated or superannuated. Through the Fund, the CBA provides financial assistance in the form of grants and loans. Eligible recipients also include lawyers in Cook County who receive assistance from the Lawyers Assistance Program and are in need of medical assistance.
“I can say without hesitation that the generous support that I have received from the Wolf Fund has enabled me to receive medical treatment for several disabling conditions and prevented me from becoming homeless. My hope is that I will be able to return to the full-time practice of law and someday make a substantial contribution to The Chicago Bar Association’s Wolf Fund in return for all the help they have given me. I am ever so grateful.” - Wolf Fund Recipient
For more information, please contact Terrence M. Murphy, Executive Director 312-554-2002 firstname.lastname@example.org
CLE & MEMBER NEWS members. To order, visit www.chicagobar. org (click on Resources, Member Discounts) or call 1-800-603-5602. Discount Magazine Subscriptions: A Great Holiday Gift Idea! credit) To learn more, visit www.chicagobar. org/chicagobar/mentoring or email cle@ chicagobar.org. Looking for a Mentor? The CBA offers the following programs: Save on hundreds of popular titles! For gifts, your reception area, or personal use. Guaranteed lowest rates and convenient ordering. Hundreds of satisfied CBA • Lawyer-to-Lawyer Mentoring Program (accreditedfor6hoursofIllinoisprofessional responsibility MCLE upon completion) • Alliance for Women Mentoring Circles (no
How Has the Pandemic Affected Your Practice Area?
That is the question CBA practice area committeemeetings have been addressing this fall to help you navigate these challenging times. Learn from experts in your field and pick up practical advice and resources. Recent topics include: • Covid-19 Employment Issues • Discovery and Discovery Motion Practice under Covid-19 • Best Practices for Remote Mediation • Ethical Dilemmas and Pitfalls During the Pandemic • Illinois andChicagoTax LawDevelopments in theWake of Covid-19 • Covid-19 Mortgage Relief Under the Cares Act • Regulatory Response to the Covid-19 Pandemic • Contract Drafting Considerations in Light of Covid-19 and Civil Unrest • Where Do We Covid from Here? Insurance Issues Update With everything going virtual these days, the CBA recently transitioned to a new eLearning platform that allows for better viewingandparticipation fromyour desktop andmobile devices.With this newplatform, members now attend all seminars and committeemeetings via Zoomwebinars. To attend, youmust have ZoomDesktopClient (https://zoom.us/support/download) on your PCorMac ormobiledevice. In addition, you must preregister for all seminars and committee meetings via the CBA’s website.
• Practitioner’sGuide toprotectingVictims of Domestic Violence during Covid-19 The CBA has over 50 practice area committees that meet monthly during the noon hour and all meetings are now virtual viaZoom.Members canattendanymeeting, but preregistration is required through the CBAwebsite. And best of all, most meetings offer free Illinois MCLE credit. Check the CBA ebulletin every Thursday, which lists all committee meetings and seminars for the following week. To join committees and receive additional resources related to your practice area, go to www.chicagobar.org (click on the Committees tab and follow the prompts). Go to learn.chicagobar.org to search for on demand meetings and seminars addressing the impact of Covid- 19 on your practice area (under Search for a Seminar or Committee Meeting enter the keyword Covid, and then hit Find). After you register, you can access your webcast by going to “My Dashboard.” You must be logged in with your CBA username and password to see your dashboard and youmust have an email address in your CBA account to register for and view seminars or meetings. To add an email to your account, visit www.chicagobar.org, login and click on My Profile. Questions regarding the new platform, howto register, etc. canbe foundat learn.chicagobar.org/faqs, or send an email to email@example.com.
Find and Post Jobs in the CBA Career Center
The CBA Career Center is the premier resource to connect career opportuni- ties with qualified legal professionals in Chicago and the surrounding suburbs. Whether you are searching for jobs or finding candidates, the CBA Career Center offers a wealth of resources to help you achieve your career goals. As a job seeker, the CBA Career Center allows you to • Search and apply to top legal jobs at organizations that value your credentials. • Upload your resume so employers can contact you. You remain anonymous until you choose to release your contact information. • Receive an alert every time a job that matches your criteria becomes available. • Access career resources and job search- ing tips and tools. As an employer, the CBA Career Center is the best platform to: • Post your job where the industry’s most qualified legal professionals in Chicago go to advance their careers. • Email your job directly to CBA members and job seekers via our exclusive Job Flash™ email. • Search our resume bank and contact qualified candidates proactively. Get started today at www.chicagobar.org (under the Careers tab).
CBA Transitions to New eLearning Platform
CBA RECORD 15
A Fork in the Road for Our Profession By Bob Glaves, CBF Executive Director A s the world around us has changed dramatically since the early 1980’s, we have seen only modest changes Chicago Bar Foundation Report
our own day-to-day practices. When the middle market failure is combined with the long-term underinvestment in pro bono and legal aid services for low-income and disadvantaged people, the reality is that a sizable majority of our community has little or no access to legal services. The pandemic and our overdue reckoning with racial injustice have only underscored the urgency to take action. How DidWe Get Here? This market failure happened gradually over decades. Not long ago, middle class people had affordable and accessible options when they needed legal help, and lawyers serving this market could make a good living doing so. It is no coincidence that the trouble started in the 1970s when the billable hour became the prevalent mode of pricing. Whatever the billable hour’s merits may be in the corporate legal services market, people living on a budget do not buy services of uncertain cost and value unless they feel there is no other choice. The squeeze on middle class incomes and exploding law school costs over this time are also factors, but other businesses and professions have innovated and adapted to similar new realities in a way we have not. Lack of Market Fixes Returning to Economics 101, the invisible hand of the market normally steps in to
in the Rules of Professional Conduct governing the business of law. The result is that our profession has gradually priced the everyday person out of the market for legal services even though more lawyers are practicing than ever before. Something is clearly wrong, and we now face a clear choice: continue down the same unsustainable path, or set a new course where we empower the middle class to access the quality, affordable legal services they need and enable lawyers to sustainably provide those services to them. The Problem in a Nutshell Despite more lawyers practicing, more people than ever before are not getting legal help when they face legal issues. This is most apparent in the record number of people coming to court on their own: at least one party is unrepresented in three out of four civil cases in the latest national survey. At the same time, lawyers trying to serve everyday people increasingly are struggling to do so sustainably, even though a high percentage of the people proceeding with- out lawyers are in the middle class, would prefer to be represented, and could afford to pay something for the services. In Economics 101, this is the clas- sic definition of a market failure, and it affects all of us even if we do not see it in
fix a mismatch between consumer need and business capacity, but that has not happened in law. The overarching reason is that our cur- rent Rules of Professional Conduct are artificially restraining the market by unduly restricting the flow of information to con- sumers and unjustly limiting the business models that are necessary to succeed in today’s world. As a result, solo and small firm lawyers not only need to be good lawyers, they need to be good business, finance, market- ing, and technology professionals as well. However, very few lawyers can do that. It is no wonder that so many lawyers are strug- gling to try to sustainably serve this market. Innovation in Other Professions As law has stuck to the one-size-fits-all law firm business model, other professions long ago opened the door to innovative new
16 November/December 2020
business models, giving both the profes- sionals and their clients a range of options to connect to the services they need and creating better functioning consumer markets. Standard Objections Debunked • We are protecting the public by preserving the current regulatory structure. There is zero proof that regulatory reform has led to increased harm to the public. • We are protecting the professional indepen- dence of lawyers. While this is a laudable goal, the Rules already acknowledge lawyers can, and do, manage a host of challenges to their independent judg- ment when they are retained by insurance companies to represent other clients, are employed as in-house counsel for cor- porations, or have litigation financed by others, to name just a few common situa- tions. It takes a dim view of lawyer ethics to suggest that lawyers can handle all of that but somehow cannot collaborate with other business entities to serve the consumer market without checking their professional independence at the door. • There is no proof that regulatory reform improves access to justice. We cannot prove something that has not been allowed to happen, but in those jurisdictions that have enabled new approaches to take flight, those approaches are showing real results increasing innovation and access. Theoretical Concerns v. Increasingly Painful Reality The above examples are just some of the concerns that opponents of progress raise for what theoretically could go wrong. As the doubters raise these theoretical concerns about what could but never has happened in jurisdictions that have pursued similar regulatory reforms, the reality of what actually is happening for legal consumers and the lawyers trying to serve them gets tougher by the day. The reflexive opponents of change often find comfort in the traditional process for amending the Rules of Professional Conduct, which is slow and incremental. When we are talking about long settled core principles of our profession, like con- flicts of interest, there is something to be
said for this approach. However, when we are talking about regulating the business of law for a whole different era, incremental change will not cut it. We need to step up and try a new approach. Regulating for the Real World Instead of regulating for the 1980s with incremental changes, what the world needs now is a fresh look at the Rules of Professional Conduct. We need to regulate for the reality of the 2020s through the lens of the Court’s published Regulatory Objectives. Instead of leaving consumers to find their own way in a confusing legal world, we can start by freeing up lawyers to better connect to the communities they serve and to use proven business practices to give people affordable access to a range of legal solutions. Instead of limiting lawyers to the one- size-fits-all law firmmodel, we should join other professions by allowing lawyers to use a range of business models to meet their and their clients’ needs. Instead of trying to shut out tech- nology-based products that consumers clearly want and already are using without going through lawyers, we should ensure these tools are quality legal solutions and empower lawyers to get involved in provid- ing technology based services. Instead of drawing bright yet inconsis- tent lines on issues like splitting fees, we should have one set of guidelines for law- yers to work with other entities that applies across the board so that lawyers can access the other business and technology services they need to succeed in today’s world. This is what a reality-based approach looks like. We can do all this and more while fulfilling our core regulatory objec- tives, but it requires a new way of looking at regulating the business of law. The CBA/ CBFTask Force on the Sustainable Practice of Law & Innovation has done just that, providing a comprehensive roadmap and series of recommendations. To be clear, improving the sorry state of access to justice for the public is a multi- tiered problem, and regulatory reform is just one part of the solution. It is not a replacement for pro bono and proper fund-
ing for legal aid services. Nor is it a replace- ment for the major court reform necessary to modernize and streamline access to the court process. However, regulatory reform is absolutely essential to closing the huge gap in the middle of the legal market. Who DoWeWant to Be? Do we want to be the lawyers who fight to protect a failed status quo? To just sit on the sidelines because our practices are not directly impacted as access to legal help gets more out of reach for everyone else? Or do we want to be the lawyers who take our responsibilities as trustees of the system to heart, own the growing market failure in the system, and lead the way toward real solutions? We have an opportunity right now to make law better for all concerned, and we have no time to waste. I could not be more proud of the work of the Task Force and the ongoing leadership of the CBA and CBF on these issues, and I hope you will join in supporting the efforts to make that case while we still can. This article was adapted from one of Bob’s recent “Bobservations” posts on the CBF blog, which you can follow at chicagobarfounda- tion.org. The CBA and CBF officially launched the Task Force on the Sustainable Practice of Law & Innovation in October 2019 to help shape a better future for our profession, the public, and the justice system.TheTaskForcebrought together a broad group of distinguished local and national stakeholders. Over a nine- month period, the Task Force explored, researched, and analyzed all possible solutions to the currentmarket failure in the consumer and small business legal services market, ultimately proposing a comprehensive series of 11 recom- mendations for regulatory reform in Illinois in its final report to the Illinois Supreme Court on October 2, 2020. You can learn more about the Task Force and view the final task force report and recommendations on the CBF website, chicagobarfoundation.org.