CBA Record January-February 2024

January/February 2024

CELEBRATING 1949-1974

Susan Novosad

Steve Levin

Mike Bonamarte

John Perconti

Margaret Battersby Black

Since 1992, Levin & Perconti has recovered nearly $1BILLION dollars in verdicts and settlements for our clients, including multiple record-setting results.

Nursing Home Negligence | Medical Malpractice Birth Injuries | Serious Auto Accidents Wrongful Death Litigation www.levinperconti.com

325 North LaSalle Street, Suite 450 • Chicago, Illinois 60654 Phone 312-332-2872 • Fax: 312-332-3112

CBA RECORD CONTENTS

January/February 2024 • Volume 38, Number 1

4

Editor’s Briefcase The Over-Engaged Profession by Justice Michael B. Hyman President’s Page Promoting an Independent and Ethical Judiciary by Ray J. Koenig III

INSIDE THIS ISSUE

6

16

Impaired Impartiality: How to Ensure the Independence of Administrative Law Judges By Alan Rhine

8 CBA News 12 Chicago Bar

20

CBA 150th Anniversary Celebration: A Time of Unrest and Change, 1949-1974 By Trisha Rich Flash Fiction Contest Winner: The Heron By Tom Keevers

Foundation Report

14 The Pulse 32 Summary Judgments

24

Black History Month Reading Selections Curated by the DICE Committee Tips, Tricks, Gadgets & Apps for the New Year by Anne Haag Keep It Together: Clear Writing Follows Subject- Verb-Object Order by Kathleen Dillon Narko Training to Prevent Sexual Harassment: Beyond Diversity by Nina Fain

YOUNG LAWYERS SECTION

34 LPMT Bits & Bytes

26

A Great 2023, Plus New Beginnings By Martin D. Gould

28

Moore Money, Moore Problems: How the Supreme Court Could Set the Stage for a Wealth Tax By Robert J. Hove y Illinois Supreme Court Recognizes Exception to First-to-Breach Rule By J. Kopczyk

36 Nota Bene

30

38 History Will Judge

39 Review of Reviews 42 Practical Ethics

January/February 2024

Wire Transfer Errors: Red Flags to Avoid Discipline by Trisha Rich

The CBA Record (ISSN 0892-1822) is published six times annually (January/February, March/April, May/June, July/ August, September/October, November/December) for $10 per year by The Chicago Bar Association, 321 S. Plymouth Court, Chicago, Illinois 60604-3997, 312/554-2000, Subscriptions for non-members are $25 per year. Periodicals postage paid at Chicago, Illinois. POSTMASTER: Send address changes to CBA Record , c/o Membership, Chicago Bar Association, 321 South Plymouth Court, Chicago, Illinois 60604. Copyright 2024 by The Chicago Bar Association. All rights reserved. Reproduction in whole or in part without permission is prohibited. The opinions and positions stated in signed material are those of the authors and not by the fact of publication necessarily those of the Association or its members. All manuscripts are carefully considered by the Editorial Board. All letters to the editors are subject to editing. Publication of advertisements is not to be deemed an endorsement of any product or service advertised unless otherwise stated.

About the Cover: Rebecca Kaplan is a member of the CBA and

works in marketing. Thank you, Rebecca!

CELEBRATING 1949-1974

The Reviews of Review column has returned with short descriptions of law review articles of interest prepared by students from Northwestern Pritzker School of Law under the supervision of Meredith A. Geller, Director of the Writing Lab and Clinical Professor of Law.

CBA RECORD

EDITOR’S BRIEFCASE BY JUSTICE MICHAEL B. HYMAN, EDITOR-IN-CHIEF D ealing with stress is a normal part of life for everyone. For lawyers, however, stress is not just an occasional challenge but is embedded in the Sisyphean nature of legal work. Data collected by the U.S. Bureau of Labor Statistics between 2010 and 2021 on stress levels by occupation revealed that the most stressful occupation in America belongs to (drum roll, please) lawyers. (For those who prefer a job with the least stress, consider lumberjacking or farming, although the report indicated they carry high risk of pain.) Why is our profession so stressful? A recent study of French lawyers (like us, except they speak French) may provide an explanation. The researchers concluded that lawyers are overly involved in their careers. Think, for example, of long hours, constant dead lines, heavy workloads, lack of personal time, the tyranny of timesheets, fear of failure, competition, the decline in collegiality and mentoring, and all too often, difficult inter personal situations. The French study recommended ways to curb what it called “over-engagement” by lawyers, including (i) having access to psychologists and programs focusing on self-assur ance, time management, and stress management; (ii) functioning in teams; (iii) cultivat ing professional development opportunities; and (iv) managing caseloads. While there are no easy solutions, we already know that the stress on lawyers has yet to be alleviated by the rapid advancements in technology, the rise of remote work, or the greater emphasis on recreation, diet, and fitness. Still, plenty of advice exists on the inter net on how lawyers can create a more balanced professional life and healthier lifestyle. So, I offer three ideas I follow that you can use immediately. You cannot fix what you are unwilling to acknowledge. Ask yourself, “What causes me stress?” Once you identify your triggers, you can develop strategies to ease, manage, or eliminate them. Each trigger will need a remedy of its own, such as exercise or a brisk walk to release tension brought on by an impending court appearance or engaging in a hobby or passion after an exhausting day. Two good books on de-stressing (by the way, reading reduces stress) are HBR Guide to Managing Stress at Work (Harvard Business Review Press, 2014) and The Happiness Trap by Russ Harris (Shambhala, 2022). The demands of your legal practice should mean something other than sacrifice of work-life balance. Law acts like a sponge, soaking up as much of your time as you let it. You must draw the line between professional and personal life; employers rarely do. Work patterns are possible to alter with a conscious commitment to change. Popular practical guides on breaking bad habits are Charles Duhigg’s The Power of Habit (Random House, 2014) and James Clear’s best-seller, Atomic Habits (Avery, 2018). Things you cannot control tend to induce the most stress. Since you should do one thing at a time (multitasking adds to stress), you can take some control by identifying the most important projects and getting them done. If the work is time-consuming, break it into smaller, more reasonable tasks, then fit in the lowest priority items as your schedule per mits. Also, say “no” more often without justifying your rationale. (I am still working on this one.) Only you control your time; avoid allowing others to waste it. One final observation: Disengaging from over-engagement must harmonize with your values, principles, and goals. The Over-Engaged Profession

EDITORIAL BOARD EDITOR-IN-CHIEF

Justice Michael B. Hyman Illinois Appellate Court

ASSOCIATE EDITOR Anne Ellis 2E Services, LLC.

SUMMARY JUDGMENTS EDITOR Daniel A. Cotter Howard and Howard Attorneys PLLC YLS JOURNAL EDITORS Jacob B. Berger Tabet DiVito & Rothstein LLC Nikki Marcotte Tabet DiVito & Rothstein LLC Carolyn Amadon Samuel, Son & Co. Daniel J. Berkowitz Cruser, Mitchell, Novitz, Sanchez, Gaston & Zimet LLP Amy Cook Amy Cook Law LLC Nina Fain Janet Sugerman Schirn Family Trust Anthony F. Fata Kirby McInerney LLP Clifford Gately Quarles & Brady Meredith A. Geller Northwestern Pritzker School of Law Judge Jasmine Villaflor Hernandez Circuit Court of Cook County Kaitlin King Hart David Carson LLP Theodore Kontopoulos Internal Revenue Service John Levin Kathryn C. Liss DePaul University College of Law Bonnie McGrath Law Office of Bonnie McGrath Clare McMahon Reed, Centracchio & Associates, LLC Pamela Sakowicz Menaker Clifford Law Offices Kathleen Dillon Narko Northwestern Pritzker School of Law Alexander Passo Latimer LeVay Fyock LLC Adam J. Sheppard Sheppard Law Firm, PC Richard Lee Stavins Robbins DiMonte, Ltd. Rosemary Simota Thompson

Judge E. Kenneth Wright, Jr. Circuit Court of Cook County

THE CHICAGO BAR ASSOCIATION Sharon Nolan Director of Marketing

4 JanuaryFebruary 2024

PRESIDENT’S PAGE BY RAY J. KOENIG III Promoting an Independent and Ethical Judiciary

The Chicago Bar Association www.chicagobar.org

President Ray J. Koenig III

First Vice President John C. Sciaccotta

implemented its protocol to advocate on their behalf. Second, the CBA recently passed a reso lution urging the U.S. Supreme Court to adopt a binding code of judicial ethics. The resolution called on the Court to develop its own binding code of conduct similar to the Judicial Conference of the United States Code of Conduct, which lays out rules for the rest of the country’s federal judges regarding extrajudicial activities, financial matters, and other conduct. Notably, in response to the leadership of the CBA and, importantly, the ABA, the Supreme Court thereafter adopted its own code of ethics, albeit one subject to great criticism. Third, the CBA, along with our col leagues from bars across the world, stated our support of the Mexican Bar Associa tion in light of recent actions by Mexi co’s executive and legislative branches that jeopardized the security of Mexico’s Supreme Court. The concern stemmed from a recent legislative decision to approve the dissolution of 13 trusts of the federal judiciary and to limit the court’s ability to provide benefits to its opera tional staff. Without that staff, the court will be unable to function adequately. Those actions threaten judicial indepen dence and block the checks and balances needed to temper excessive overreach by any one branch. The CBA took these actions on your behalf because the importance of an inde pendent judiciary cannot be overstated as: • a restraint on the powers of the executive and legislative branches of government. It ensures that no single branch becomes too powerful and that there is a system of checks and balances in place.

Second Vice President Kathryn C. Liss

Secretary Trisha Rich Treasurer Nina Fain

Immediate Past President Timothy S. Tomasik

Executive Director Beth McMeen

T he Chicago Bar Association has long valued and promoted judi cial independence in Illinois, the United States, and internationally. In fact, one of our three stated objectives is to “increase the usefulness of the legal profes sion in promoting the due administration of justice and the public good.” Clearly embedded within that is the promotion of an independent judiciary (see our pur poses and objectives at www.chicagobar. org/CBA/About). To that end, the CBA has recently taken leadership action on three specific issues of importance. First, in response to the Chicago Tribune’s series of articles on the disposition of murder cases by Cook County judges, we stood behind the judges and criticized the Tribune for what we saw as incomplete and unjust analy sis. Our concern with such unwarranted editorializing is that it erodes public con fidence and weakens the administration of justice. Because it is unethical for judges to answer criticism of their actions by per sonally appearing in the media regarding pending or impending matters, the CBA

BOARD OF MANAGERS Louis G. Apostol Tracy Brammeier Margaret Mendenhall Casey Naderh Elrabadi Anthony F. Fata Josie Gough Cynthia S. Grandfield Brian Haussmann Justice Margaret Stanton McBride Peter McNamara John Mitchell Jeffrey Moskowitz Judge Mary Rowland

Eirene N. Salvi Brendon Stark Kevin Thompson

Judge Allen P. Walker Matthew P. Walsh II

6 JanuaryFebruary 2024

• essential for the proper functioning of the rule of law to ensure that all individuals, regardless of their status or posi tion, are subject to the law, to promote fairness and equality. • a safeguard for the protection of individual rights and lib erties. Individuals seek legal remedies when their rights are violated, and the independent judiciary ensures that justice is dispensed impartially. • validation that judges are free from external pressure and can make decisions based on the law and the facts presented in each case, creating a perception and a reality of impartiality and fairness in the legal system. • a bolster of public confidence in the legal system. When we believe that judges are free from political interference and external influences, we are more likely to trust the judiciary and the decisions it renders. • crucial for the preservation of democratic principles, to pre vent the abuse of power, corruption, and erosion of those values by ensuring that the legal system operates indepen dently of political pressures. • a stabilizing force by providing consistent and predictable interpretations of the law. This stability is important for the functioning of a legal system and for businesses and individu als who need to rely on the law to plan their actions. • a r eliable mechanism for the peaceful resolution of disputes, avoiding the temptation for parties to resort to self-help or extra-legal means to settle their grievances. • a key guardian of human rights. Independent courts are

better positioned to adjudicate cases involving human rights violations and ensure that justice is served without political interference. These are many of the particularly important reasons we have taken action locally, nationally, and internationally. The CBA will continue to be a leading voice on this issue because the indepen dence of the judiciary is a cornerstone of a functioning and fair legal system. As President of the CBA, I invite you to join us in speaking out for the integrity of the judicial system and judicial independence. Our efforts will succeed only if we speak out, stand up, and use our privilege as legal professionals to defend our democracy wher ever and whenever it is under political attack, even when doing so may cause personal discomfort. We must follow the lead of the late Justice Sandra Day O’Connor, who devoted many years after her retirement from the Court to the promotion of judicial independence. Reportedly in response to what she deemed to be her regrettable decision in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), she devoted her retirement years to the idea that a functioning democracy requires the people – all people – to have faith that judges rule on cases based on the merits of those cases, and not political views or other personal biases. As Justice O’Connor once stated: “Commitment to the rule of law provides a basic assurance that people can know what to expect whether what they do is popular or unpopular at the time.” We must honor that commitment.

CBA RECORD 7

CBA NEWS Celebrating 50 Years of CBA Membership By Ann Glynn, CBA Public Affairs Director

T he CBA is proud to recognize 49 members who are marking 50 years of association membership this year. CBA President Ray J. Koenig III hosted a luncheon for some of those members and their families to thank them for their steadfast commitment and dedication to the legal profession and the CBA.

Pictured are: Top row from left: CBA Second Vice President Katie Liss, Edward Mogul, CBA President Ray J. Koenig III, Ivan M. Rittenberg, Robert W. Sacoff, Judge Thomas Mulroy (ret.) and CBA Past President Timothy Tomasik. Front row from left: Benton C. Strauss, Jerald A. Kessler, Dorothy Johnson, Letitia Sheats, David I. Grund, and CBA Executive Director Beth McMeen. Not pictured: Judge Patricia Banks (ret.), Francis A. Beninati, Judge Michael B. Bolan (ret.), Alan R. Borlack, Jeffrey P. Carren, Talivaldis Cepuritis, Judge Morton Denlow (ret.), Joel A. Deutsch, William S. Dillon, Jr., Anne L. Draznin, Joseph M. Dvorak III, Randy W. Franklin, Gary B. Friedman, Wilson P. Funkhouser, Jr., Richard A. Harbaugh, Richard S. Hartford, Frederick E. Henry, Thomas J. Keevers, Gerard M. Latus, Howard D. Lerman, James A. McGurk, Brian J. McManus, Lyndon C. Molzahn. Judge Sheila M. Murphy (ret.), Alan D. Nesburg, Stephen Novack, Roseann Oliver, Anthony J. Onesto, William H. Pokorny, Jr., Robert A. Pond, Michael W. Rathsack, Michael T. Reagan, Sister Catherine M. Ryan, Thomas Schroeder, Paul Slater, Robert A. Sternberg, Howard L. Stone, Richard A. Sugar, Richard J. Superfine, and Lawrence Templer.

Lawyer Career Reinventions January 24, 2024 | 12:00-1:00 p.m. | Free for CBA Members | 1 IL MCLE Credit Register at Learn.ChicagoBar.org (on demand version will also be available) Kathy Morris of UnderAdvisement Ltd. will share tips for changing practice areas, sectors, size of workplace, or your legal career altogether.

8 JanuaryFebruary 2024

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CBA RECORD 9

CBA Forms Committee on Biometric Information and Privacy Law By Ann Glynn, CBA Public Affairs Director T he CBA Board of Managers recently approved the creation of a new committee: the Biometric the basics of this area of law and tips for how to navigate it in a constantly chang ing landscape,” said Guest.

panies to obtain an individual’s consent before collecting their biometric informa tion, including fingerprints, retina scans, voice prints, and facial scans. In 2019, the Supreme Court of Illinois ruled in Rosenbach v. Six Flags that a technical vio lation of BIPA without an actual injury is sufficient to confer standing to sue. Since that ruling, the number of lawsuits filed in Illinois and Chicago under BIPA has skyrocketed. “Biometric information and privacy are fast-changing areas of law, and Illinois is at the epicenter of that change. The new committee will offer information to the Chicago legal community regarding

Information and Privacy Law Commit tee. The Committee will educate CBA members on the Illinois Biometric Infor mation Privacy Act, how to help their clients remain in compliance, and update members on litigation and developments around the law. The Committee Chair is Mark W. Guest, Partner, Lewis Brisbois, Bisgaard & Smith, LLC. The Vice Chair is Michael Roman, Partner, Lewis Brisbois, Bisgaard & Smith, LLC. Enacted in 2008, BIPA requires com

The Biometric Information and Pri vacy Law Committee will provide presen tations that offer information from both the defense and plaintiff’s sides on how to stay compliant with the developing law and navigate the litigation. The Com mittee will bring in experienced BIPA litigators to speak on related litigation as it arises and will discuss the status and trends in BIPA settlements. CBA Members interested in joining this committee can sign up at www.chicagobar. org or email info@chicagobar.org.

Over 200 new lawyers attended the CBA’s annual New Lawyer Basics Skills Course. The complimentary, full-day course satisfies the Supreme Court of Illinois’ MCLE Rule 793 requirement for newly admitted attorneys. An online version is available at learn.chicagobar. org. Thank you to the many CBA members who served as speakers for the course. Pictured from left front are Civility in the Profession panelists (surrounded by new lawyer attendees): Andre Hunter, Gordon Rees Scully Mansukhani, LLP; Margaret Mendenhall Casey, City of Chicago; Peter McNamara, International Union of Operating Engineers, Local 399; Judge Nichole C. Patton, Circuit Court of Cook County; and Tanvi Patel, Partner, Neal Gerber Eisenberg.

10 JanuaryFebruary 2024

CLE & MEMBER NEWS If you recently moved, joined a new firm, created a new email account, got a new phone number, etc., please take a moment to update your member profile and add your employment setting and practice areas to receive notices regarding seminars and other events that relate specifically to you. You can do this online at www.chicagobar.org in your membership account. If you have any problems logging in or updating your profile, call 312-554-2000 or email info@chicagobar.org. Update Your Contact Info, Employment Setting, and Practice Areas to Receive Practice Resources

Save on LexisNexis, LawPay client credit card processing, Ruby vir tual office receptionists, SoFi student loan rates, UPS, legal software, and more! Visit www.chicagobar.org/save for more information and links to our discount providers. These programs have been Save Money on CBA Member Discount Programs

negotiated to provide savings and special offers as a value-added benefit of your CBA membership. Make the most of your member ship investment and check out these savings.

Strong Programming from CBA and YLS Practice Area Committees: Hybrid and Virtual, Attend from Anywhere!

Did you know that the CBA has over 50 practice area committees and 25 young lawyer committees that meet monthly during the noon hour (most via live Webcast, plus in-person and hybrid options) to keep members up-to-date on practice developments, new court procedures, and helpful practice tips? Over 50 new meetings are available each month featuring judges, legal experts, and business leaders. And best of all, meeting presentations are free and offer about one hour of free IL MCLE credit if watched live (note, most meeting presentations are also archived at learn.chicagobar.org, but archives do not qualify for IL MCLE credit). Meeting participa tion also allows you to connect with colleagues and other thought

leaders to share information, develop new business relationships, meet potential mentors, create support networks, and more. There are never any extra fees to join CBA or YLS committees. New members are always welcome. Join at www.chicagobar.org and check the CBA eBulletin every Thursday for upcoming committee meetings, speakers, and topics. Any CBA member may attend any committee meeting to earn free Illinois MCLE credit, but by joining a committee you will receive meeting information, seminar announcements, and other special notices related to your practice areas directly from your committees via email. You may also elect to receive practice area updates from Lexology based on your practice areas. • Participate in our legislative program, email jvyverberg@chica gobar.org • Offer tips/training for law practice management, email ahaag@ chicagobar.org • Join the YLS Racial Justice Coalition to plan educational programs and volunteer activities, email eanderson@chicagobar.org • Evaluate judicial candidates, email acruz@chicagobar.org • Mentor a young lawyer, email eanderson@chicagobar.org If you have questions about other ways to participate in the CBA or Young Lawyers Section, please email membership@chicagobar.org. Thank you for sharing your time and talent.

Share your Expertise and Enhance Your Resume

As one of the country’s leading metropolitan bar associations, we rely on our members to help us produce cutting edge programs and services. These also provide great exposure and well-deserved recognition for participating members. Here are just a few ways to share your expertise and build a stronger reputation within the legal community: • Speak at seminars and practice area committee meetings, email cle@chicagobar.org • Submit an article for the CBA Record, email CBARecord@chica gobar.org • Write for our young lawyer blog, email yls@chicagobar.org

CBA RECORD 11

Chicago Bar Foundation Report

Building a Fairer and Better Justice System Together in 2023 By Emme Veenbaas

Y ou continue to make a tremendous impact through your foundation by joining with peers to make it possible for thousands of people in need to get critical legal help and make our legal system more fair, accessible, and equitable for all. Below are some examples of how you have continued to make a real difference over the past year while building a fairer and better justice system for the future. In this 75th Anniversary year of the CBF, the work you are making possible is more important than ever. You can learn more about the impact you are making and how you can get more involved in that work at chicagobarfoundation.org.

Housing and Debt Program Continues to Make a Difference

process for evictions and consumer debt cases to try to achieve three interrelated goals: create a fairer and better court process for all par ties; level the playing field for tenants and debtors; and avoid pre ventable evictions and consumer debt judgments whenever possible. The program has helped more than 60,000 people since its launch. It was featured by Cook County President Toni Preck winkle and her cabinet Offices Under the President as part of its Innovation Spotlight this past fall and has been recognized as a national model by the White House and national organizations.

Advocacy in Springfield

The CBF continues to be a lead partner with the Circuit Court, Cook County, and many other legal aid, government, and com munity partners in developing and managing the groundbreak ing Cook County Legal Aid for Housing and Debt Program (CCLAHD). The program provides critical legal help and other assistance for people facing evictions, consumer debt challenges, foreclosure, and other housing issues. Through CCLAHD we collectively have reimagined the court From left: Nick Mathiowdis, Office of the President of Cook County’s Press Secretary; Carina Segalini, Court Administra tor & Program Manager for the Circuit Court of Cook County; Dennericka Brooks, Director of Legal Aid Chicago’s Housing Practice Group; Toni Preckwinkle, President of the Cook County Board of Commissioners; Dena Al-Khatib, Cook County Bureau of Economic Development Project Director; and CBF Executive Director Bob Glaves.

From left: CBF Board Member Brent Vincent, Bryan Cave Leigh ton & Paisner LLP; CBF Director of Court Advocacy Cortney Redman; Illinois State Senator Bill Cunningham; CBF Board President Kenya Jenkins-Wright, Illinois Guardianship & Advocacy Commission; IEJF Executive Director Leslie Corbett; and CBF Young Professionals Board Member Rachel Chang, Skadden, Arps, Slate, Meagher & Flom LLP.

12 JanuaryFebruary 2024

Several key CBF advocacy priorities were approved this year in Springfield that will advance access to justice, including new funding for innovative court-based eviction assistance programs, a bill that clarifies and improves access to court documents, and a bill to increase access to legal help for people facing consumer debt cases. The CBF also continues to advocate for access to justice ini tiatives in Washington in partnership with the CBA, ISBA, and ABA. Priorities this year included increased funding for the Legal Services Corporation, ensuring adequate funding and security for the federal courts, and passing a long-term, sustainable solution to the student debt crisis.

with limited technology capabilities or transit challenges can more easily get legal information and assistance, including with e-filing, and participate in remote court proceedings.

Campaign Raises $1.4 Million

More than 4,000 lawyers and legal professionals contributed more than $1.4 million to the 2023 Investing in Justice Campaign. With the leader 2023 Investing in Justice Campaign Chair Amy Manning, performing with her band, Flood Waters, at the Campaign Wrap-Up Party at The Club in Elmhurst.

Milestone Year for Pro Bono and Public Service Awards

ship of Amy Manning of McGuireWoods LLP, 130 law firms, corporate legal departments, and other law-related organizations participated in this year’s campaign to help raise awareness and much-needed funds. We celebrated this year’s successful campaign with a wrap-up concert headlined by rockstar campaign Chair Amy Manning and her band, Flood Waters. Since its inception in 2007, the campaign has raised more than $20 million while leveraging millions more in additional support for the pro bono and legal aid organizations serving the Chicago area.

Nearly 600 people came together to honor seven amazing lawyers and celebrate the 25th anniversary of the CBA/CBF Pro Bono & Public Service Awards Luncheon, which has become a signature event in our legal community. Since the event was first held in 1999, we have honored more than 150 heroes of our Chicago legal community for their inspir ing pro bono and public service commitment. Innovative Court-Library Partnership People in communities in the Chicago area and throughout the state will have improved access to remote court proceedings and other legal resources thanks to a new partnership between the CBF, the Illinois Supreme Court Commission on Access to Justice, and the Illinois Secretary of State’s Office. This innovative pilot proj ect will create community access centers in libraries throughout the state. Recognizing libraries as important community hubs for information and assistance, these access centers will provide new resources to assist patrons in navigating the legal system. People From left: CBA President Ray J. Koenig III, Clark Hill PLC; Luncheon Co-Chair Jordan Heinz, Abbott; Lewis Award Recipient Steven Blonder, Much Shelist, P.C.; Anderson Fellowship Recipient Andy Froelich, James B. Moran Center for Youth Advocacy; Weigle Award Recipient Whitney Siehl, Hagens Berman Sobol Shapiro LLP; Schrager Award Recipient Susan Curry, The University of Chicago Law School; Morsch Award recipient Julie Brown, Impact for Equity; Exelon Award recipient Melvin Flowers, Accenture; Luncheon Co-Chair Donna Welch, Kirkland & Ellis LLP; Incoming CBF Board President Kenya Jenkins-Wright, Illinois Guardianship & Advocacy Commission; and Outgoing CBF Board President Greg Boyle, Jenner & Block LLP.

27th Annual Benefit a Big Success

Nearly 2,000 people celebrated the 27th annual CBF Fall Benefit at the Museum of Science & Industry. The casual, family-friendly event featured tasty comfort food, special kids’ activities, a silent auction and raffle, live music, an open bar, complimentary park ing, and access to the museum’s many popular exhibits includ ing Christmas Around the World and this year’s special exhibit Pompeii: The Exhibition. Special thanks to co-chairs Robert Col lins and Kathy Malamis, and our many law firm and corporate sponsors who continue to make this event possible. From left: CBF Board President Kenya Jenkins-Wright, Illinois Guardianship & Advocacy Commission; 2023 Fall Benefit Co Chairs Robert Collins, Latham & Watkins LLP, and Kathy Malamis, Zurich North America; and CBF Executive Director Bob Glaves.

Emme Veenbaas is The Chicago Bar Foundation’s Senior Manager of Communications & Events..

CBA RECORD 13

Reinvent Your Legal Career The CBA’s Career Advancement Program featuring Career Counselor Kathy Morris of Under Advisement Ltd. is in full swing. CAP is designed to help members of all experience levels and backgrounds move forward in their careers. Morris has been helping lawyers of all skill levels and prac tice areas navigate the Chicago legal job market for decades. Her next one-on-one career counseling day will be held on Feb ruary 13. She will also discuss reinventing your legal career at a January 24 seminar (program will be recorded for on demand viewing as well). You can find registration details at www.chicagobar. org (under the Careers tab). New Year, New Insurance? CBA Insurance Agency has been provid ing quality insurance solutions to attor neys and law firms since 1993, including legal malpractice, health, cyber, and life insurance. The start of a new year is a great time to examine your coverage and to get a free quote to see if we can save you money. Visit www.cbainsurance.org for complete information on our offerings. Email Tyler Sill at tsill@chicagobar.org to schedule a call to go over your individual needs. Alliance for Women Are you a member of the CBA’s Alliance for Women Committee? In addition to monthly meetings, the Alliance also spon sors social events such as Wine Down Wednesdays and the Girl Scouts’ Project Law Track. All members are welcome to get involved with the group, whose pro gramming focuses on advancing women in the law. To join, go to www. chicagobar. org/committees or email Rina Yamazaki at ryamazaki@chicagobar.org. Congratulations To the Chicago Lawyer & Chicago Daily Law Bulletin’s 40 Under Forty Illinois Attorneys to Watch: Daniel Broder ick, Levin & Perconti; Melissa Cabal lero Dunn, Law Offices of Jonathan Merel; Lauren DaVale, Odelson, Mur phey, Frazier & McGrath, Ltd.; Loren

THE CBA PULSE BY BETH McMEEN, CBA EXECUTIVE DIRECTOR

The CBA’s Media and Civic Education Inc.’s Lawyers in the Classroom (LIC) program recently honored attorney volunteers and Chicago educators at the second annual Lawyers in the Classroom Civic Education Appreciation Awards. Honorees were rec ognized for their participation in the program and their dedication to civic education. Board Directors pictured left to right: Cameron Jordan, Skadden, Arps, Slate, Meagher & Flom LLP; Tiffani Watson, CBA Media and Civic Education, Inc. Managing Director of Education and Corporate Engagement; Daniel Winters, sole practitioner; Josh Boggioni, BatesCarey LLP; CBA Executive Director Beth McMeen; and Associate Judge Torrie Corbin, Circuit Court of Cook County.

Ringing the Opening Bell at CBOE CBA leaders will ring the opening bell at the CBOE on January 22, 2024, to cele brate the CBA’s 150th anniversary. Watch the e-Bulletin and CBA social media for details. Dickerson Awards The late Earl B. Dickerson was an out standing lawyer and among the first Afri can American members of the CBA. He devoted his professional career to the law and helping others gain equality and jus tice. In this spirit, the CBA established the Dickerson Award to recognize and honor minority lawyers and judges whose careers at the bar emulate the courage and dedication of Dickerson in making the law the key to justice for all in our soci ety. Please mark your calendar to join us on February 15, 2024, at 11:30 a.m. at the Union League Club. Reservations are open at www.chicagobar.org/dickerson.

Black History Month The CBA will present a very special slate of activities in celebration of Black His tory Month in February. Events will include the annual Earl B. Dickerson Awards, seminars, reading recommenda tions, and much more. Additionally, as part of our 150th anniversary celebration, a special CLE course, “The Future of DEI After Students for Fair Admissions,” is scheduled for February. Visit www.chica gobar.org for a list of activities and semi nar registration. Enjoy a Musical Night Out The CBA Symphony Orchestra and Chorus, comprising members of Chicago’s bench and bar, will perform a concert on February 2, 2024, at 7:30 p.m. at St. James Episcopal Cathedral (Wabash & Huron). All members and their guests are invited to the performance. $15 advance tickets are on sale at cbafeb.eventbrite.com.

14 JanuaryFebruary 2024

Legorreta, Tomasik Kotin Kasserman LLC; Christina Mermigas, Chuhak & Tecson, P.C.; Sarah Quinn, Husch Black well; David Rashid, Salvi, Shostok & Pritchard; Justin Seigler, BatesCarey; Matthew Tully, Tully & Associates; and Christopher Wells, Office of the Illinois Attorney General… News of former CBA Presidents: Robert A. Clifford , Clifford Law Offices, was named to The Best Lawyers in America list for the 30th year; J. Timothy Eaton, Taft Law, was appointed by the Illinois Supreme Court as chair of its new Executive Committee on the Practice of Law; and Jesse H. Ruiz, general counsel and chief compliance officer of the Vistria Group, was among two appointments by Governor J.B. Pritzker to the University of Illinois board of trustees… News of CBA board mem bers: Louis G. Apostol, Public Adminis trator of Cook County, was elevated to the rank of Archon in the Order of St. Andrew the Apostle for the Ecumeni cal Patriarchate; Eirene N. Salvi, Salvi, Schostok & Pritchard P.C., was appointed to the Illinois Supreme Court Commis sion on Professionalism; and the Illi nois Supreme Court reappointed Cook County Associate Judge Allen P. Walker to the Illinois Supreme Court Commit tee on Illinois Evidence… Judge Jeffrey I. Cummings is now serving as a U.S. District Court Judge for the Northern District of Illinois. Judge Cummings previously served as a Magistrate Judge for the Northern District… Circuit Court of Cook County Judge Celia G. Gamrath received the Illinois Bar Foun dation’s 2023 Distinguished Service to Law and Society Award; and the law firm

of Stephan Zouras, P.C. was honored with IBF’s Honorary Champion Award. Dean Jennifer L. Rosato Perea, will step down as head of DePaul University College of Law to take a leadership posi tion with the American Bar Association effective June 1… JAMS added retired Cook County Circuit Court Judge Anna H. Demacopoulos to its panel… Emily A. Herbick, Clifford Law Offices, was named to the 2024 The Best Lawyers: One to Watch, and Courtney A. Berlin and Devin J. Piper were added as associ ates to the firm… Timothy A. Hudson, Tabet DiVito & Rothstein LLC, is the president of the Federal Bar Association’s Chicago chapter… Robert J. Napleton & Associates hired Ryan A. Scott as an associate… Polsinelli elected Nathan B. Grzegorek and Brandon T. Moore as shareholders to its Chicago office… Ropes & Gray added Charlie D. Zagnoli as a counsel to the firm’s Chicago office… Barnes & Thornburg promoted Sarah Jin to partnership… Patrick A. Salvi Sr., founder and managing partner of the Law Offices of Salvi, Schostok & Pritchard, P.C., received the Illinois Bar Founda tion’s “Distinguished Award for Excel lence” at the IBF’s 2023 Black Tie Gala… and Robbins Dimonte, Ltd. added Caro lina Y. Sales as a partner to its banking and finance, business transactions, credi tors’ rights, collections and bankruptcy, and litigation teams. O’Keefe Lyons & Hynes LLC added W. Christopher Beck to the firm. His practice will focus on property tax appeal and litigation services for corporate, insti tutional, and entrepreneurial businesses in Chicago and nationally… Beerman LLP

hired Nichole C. Edidin as an associate to the firm. Edidin will focus on family law… Hinshaw & Culbertson added Justyna Regan as a partner to its busi ness and commercial practice… Kovitz Shifrin Nesbit added Michael O’Malley and Bethany Wedmore to the firm… and Cozen O’Connor labor and employ ment lawyers Jeremy Glenn and Anna Wermuth were named to the 2023 list of Notable Leaders in Employment and Labor Law by Crain’s Chicago Business and to Lawdragon’s 2023 list of Top 500 Leading U.S. Corporate Employment Lawyers. Joe Tilson was named to Lawdragon’s Hall of Fame… O’Keefe Lyons & Hynes hired Emily Barraza who will focus on real estate property tax appeals… Ronald S. Betman joined Benesch as partner in its litigation group… Patrick J. Driscoll joined Romanucci & Blandin’s mass torts and civil rights legal team… and Patrick A. Salvi II of Salvi, Schostok & Pritchard, P.C. was named Chicago Lawyer Maga zine’s 2023 “Person of the Year.” Emily T. Art has joined Salvi, Schos tok & Pritchard as an associate attorney… Saul Ewing added Julie M. Workman as a partner in its real estate practice group… Jacob Zerkle has joined Polsinelli as counsel to its nonprofit organizations practice group… Clare McMahon has joined as a partner at Reed, Centracchio & Associates, LLC… and Daniel W. Bobier has been elevated to a partner at Jenner & Block. Condolences To the family and friends of Herbert H. Franks and Edward M. Bergmann.

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Impaired Impartiality: How to Ensure the Independence of Administrative Law Judges By Alan Rhine

W ould you be confident your client could obtain justice if your adversary paid the judge’s salary? Some attorneys face this situation when representing a client in an adminis trative hearing. This article examines some of the different types of administrative hearings and their evidentiary standards; explains why a combination of inves tigative and adjudicative functions can be problematic; and suggests a potential solution to ensure the independence of administrative law judges. It also offers some practical guidance for attorneys as they prepare for an administrative hearing. If your client’s dog bites a person in Chicago, an administrative hearing can impose a fine and order restitution to a victim. See Chicago Municipal Code, Sections 7-12-030 and 7-12-050. If your client is a physician, their license can be suspended in an administrative hearing. See 225 ILCS 60/22. If your client seeks disability payments, that is determined in an administrative hearing. See 42 U.S.C. § 405(b). These hearings are conducted by administrative law judges (ALJs). (The terms hearing examiner, hearing officer, referee, or arbitrator may be used instead of administrative law judge. See 5 ILCS 100/1-15.) In Illinois, the agency head or an attor Administrative Encounters: Evidentiary Basics

Staffing Models for Administrative Hearings

ney licensed to practice law in Illinois may act as an ALJ or panel for an agency. See 5 ILCS 100/10-20. Administrative hearings have no jury, and the rules may be different than in other civil proceed ings. For example, under the Illinois Administrative Procedure Act, evidence not admissible under the civil rules of evi dence and privilege may be admitted in an administrative hearing “if it is of a type commonly relied upon by reasonably pru dent men in the conduct of their affairs.” 5 ILCS 100/10-40(a). The evidence presented at an admin istrative hearing is crucial, because while administrative review in court is possible, this review is limited in several ways. For example, the Illinois Code of Civil Proce dure provides that a court may not hear new evidence. On administrative review, the factual findings of an administrative agency are deemed “to be prima facie true and correct.” See 735 ILCS 5/3-110. Furthermore, each agency may have its own rules regarding evidence. For example, in an administrative hearing before the Illinois Department of Health care and Family Services (IDHFS), unless proven otherwise, computer-generated documents prepared by the IDHFS are presumed to accurately reflect the IDHFS’s records as to the amount and type of payment made to vendors as well as the basis for such payment. See 89 Ill. Admin. Code 104.255.

Several models exist for staffing the posi tion of administrative law judge. The Illinois Independent Tax Tribunal (ITT) hears certain tax cases; that adminis trative tribunal is independent of the Department of Revenue. The ITT rules on certain cases alleging underpayment of Illinois taxes. See 35 ILCS 1010/1-1 et seq., including 35 ILCS 1010/1-15. The governor appoints the ALJs of the ITT, who may not hold outside employment or another office or position of profit with the State of Illinois. See 35 ILCS 1010/1 25(a); 35 ILCS 1010/1-30(c). The Illinois Human Rights Act uses a different model that separates prosecution from enforcement. The Illinois Depart ment of Human Rights has the authority to both file and investigate charges. Hear ings are held before an ALJ that the Illinois Human Rights Commission employs. See 775 ILCS 5/7-101(D) and (E). Some Illinois agencies conduct admin istrative hearings in which two private adversaries present their evidence. This is done in cases relating to unemployment insurance before the Illinois Department of Labor; the parties are the employee and the employer. In other administrative hearings, the same agency investigates, prosecutes, and decides the case. Such is the situation in hearings before the IDHFS on issues of

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whether medical providers have violated Medicaid’s rules for payment. See 305 ILCS 5/12-4.9. The combination of powers also occurs in professional licensing cases for physi cians, real estate brokers, and other pro fessionals in hearings before the Illinois Department of Financial and Professional Regulation. In this agency, the adminis trative law judge makes findings, which are then submitted to a panel consist ing of members of the profession and/or public members. This panel recommends a decision to the director, who makes the final administrative decision. See 68 Ill. Admin. Code, § 1110.170; see also 225 ILCS 60/7.1 (A); 225 ILCS 60/35; 225 ILCS 60/37; and 225 ILCS 60/44. A model used by some other states, such as Florida, is based on a separate Department of Administrative Law Judges. See Fla. Stat. § 120.65. In others, the attorney general’s office prosecutes cases before an administrative agency so prosecutorial functions remain separate from judicial functions. A Problematic Combination In Withrow v. Larkin, 421 U.S. 35, 39-42 (1975), which challenged an adminis trative hearing in Wisconsin, the lower court found that the state medical exam ining board did not qualify as an inde pendent decisionmaker and could not properly rule on the merits of the charges it investigated. A preliminary injunction was issued to prevent the administrative hearing. On appeal, the United States Supreme Court overruled the District Court. While finding that “a “fair trial in a fair tribunal is a basic requirement of due process,” the Supreme Court held that the contention that the combination of investigative and adjudicative func tions creates an unconstitutional risk of bias in administrative adjudication must overcome a presumption of honesty and integrity in those serving as adjudicators. The standard set in Withrow was to determine bias by considering whether, under a realistic appraisal of psycho logical tendencies and human weakness, conferring investigative and adjudicative powers on the same individuals poses a

risk of actual bias or prejudgment. With row at 46-47. However, considering the Court’s ruling in Caperton v. A. T. Massey Coal Co., 556 U.S. 868 (2009), the Court should revisit or reconsider its holding in Withrow . In Caperton, a party claimed that a West Virginia Supreme Court of Appeals justice who ruled on the case in the lower courts was potentially biased.

Caperton also considered the ABA Model Code of Judicial Conduct. Canon 2A of the Code provides that the issue is “whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial respon sibilities with integrity, impartiality and competence is impaired.” Caperton at 888. This is different from the standard applied in the Withrow case.

Implicit Bias Concerns about what is now referred to as implicit bias date back to the founding years of the United States. For example, the Federalist Papers stated, “A body of men are unfit to be both judges and par ties at the same time.” Federalist Paper 10. And United States v. Burr recognized that a relationship between a party to liti gation and the finder of facts creates a sus picion of bias. 25 F. Cas. 49, 50 (1807) Moving forward to the twentieth cen tury, possible temptations for judges were discussed in Tumey v. Ohio, which held that due process of law is denied with a procedure that offers a possible tempta tion to the average person as a judge to forget the burden of proof required to convict the defendant, or which might lead them not to hold the balance “clear and true between the State and the accused …” 273 U.S. 510, 532 (1927). Tumey involved a violation hearing conducted by a village mayor. The mayor CBA RECORD 17

Specifically, the chairman of a corpora tion that was a party to a lawsuit before that court made a substantial campaign contribution to a justice’s election cam paign. However, although the West Virginia justice conducted an extensive search for actual bias, no actual bias was found. Caperton at 874. Citing In re Murchison, 349 U.S. 133, 136 (1955), the Caperton Court held that objective standards may require recu sal whether actual bias exists or can be proved. This is because due process may sometimes bar judges who have no actual bias and who would do their best to weigh the scales of justice equally. Where a sig nificant contribution is made to a judge’s election campaign, the failure to consider objective standards requiring recusal is not consistent with the imperatives of due process, because there was a possible temptation to the average judge to not to hold the balance “clear and true.” Caper ton at 886.

How to Prepare for an Administrative Hearing By Alan Rhine While this article discusses a poten tial structural change to separate the power to prosecute and the power to adjudicate a case in an administrative hearing, attorneys should keep some important points in mind in the mean time when representing a client in an administrative hearing. 1. Agency rules. Become familiar with agency rules, especially those relating to evidence, because they may differ from the rules of evidence applied in a trial court. 2. Ex parte communications . If the same agency both prosecutes the case and decides the case, be watchful of ex parte communications that may occur if the prosecutors and the administra tive law judge work in the same suite. 3. Options for exceptions or rehear ings. Determine the process by which a final administrative decision is issued. There may be a mandatory appeal process within the agency, an oppor tunity to file a motion for a rehearing, or a right to file exceptions to a recom mended decision. 4. Client communication . It may be necessary to explain to your client that the decision-making process takes a long time because it involves multiple steps (e.g., a report from an administra tive law judge is sent to a board, which then sends a recommended decision to the director of the agency for a final administrative decision). 5. Chicago Bears vs. Green Bay Pack ers? If the agency is both prosecutor and adjudicator, you might want to tell your client that the process is like a football game between the Green Bay Packers and the Chicago Bears, where the game officials were full-time employees of the Green Bay Packers.

received fees and costs of $12. There, the Court held that although it was “doubt less” that some mayors “would not allow such a small consideration . . . to affect their judgment in [the matter], the requirement of due process of law in judi cial procedure is not satisfied by the argu ment that [people] of the highest honor and the greatest self-sacrifice could carry it on without danger of injustice.” Tumey at 531-32. Another problem for an ALJ who is employed by the same agency that both investigates and prosecutes the case is the determination of credibility of co employees. To find that an investigator employed by the same agency is not a credible witness places the administrative agency in a difficult position because if its investigator is not credible, this jeopar dizes the investigator’s value to the agency in future matters. Does the control over the salary of an administrative law judge by the agency that prosecutes the case create a percep tion of impairment of the adjudicator’s ability to carry out judicial responsibili ties with integrity, impartiality, and com petence? Is the issue whether payment Potential Solution: Independent Tribunals

of a salary creates a greater perception of impairment of impartiality than a one time substantial campaign contribution? The Court’s holding in Caperton strongly suggests that the answer to both ques tions is, “Yes.” Indeed, where an agency employs an administrative law judge, an ongoing relationship exists with the agency controlling their salary, which may be their sole means of support. According to case law, this situation may create the existence of an actual bias or the percep tion of potential or implicit bias. This issue has been resolved in certain tax cases in Illinois by creating an inde pendent administrative tribunal, the ITT, to increase public confidence in the fair ness of the state tax system. A tribunal not paid by a party that has “an interest in winning the case” provides both the appearance and the reality of due process and fundamental fairness being served. This model is suggested as a guide for other administrative hearings.

Alan Rhine is a solo prac titioner and focuses his practice on representing clients in administrative hearing and in adminis trative review proceedings in court.

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18 JanuaryFebruary 2024