CBA Record November 2017

ETHICS EXTRA

PRACTICE AREA UPDATES The CBA is pleased to ipartner with CBA News- stand by Lexology, a daily email that provides valuable and free practical know-how.Learn more at www.chicagobar.org/newsstand. counsel’s introduction of several docu- ments corroborating Alcauter’s incarcera- tion, including the information listing the arrest, Illinois Department of Correction (IDOC) records showing Alcauter being taken into custody, and the same informa- tion available on the IDOC website. The trial court held that AACC owed Alcauter coverage since he could not have been at the hearing, and ruled that AACC’s evi- dence “just flat out [did not] hold water against the evidence that [Alcauter] was in jail.” Thereafter, Krebs, the opposing party involved in the crash, filed a motion for sanctions pursuant to Illinois Supreme Court Rule 137 against AACC and Newman. The motion stated both parties “failed to conduct a reasonable inquiry into Alcauter’s whereabouts because, if it had, it would have found out that he was incarcerated.” At the hearing for the motion on sanctions, Newman “conceded that he did not believe that anyone made a phone call to Alcauter in jail about the arbitration.”The trial court imposed sanc- tions against AACC and Newman for $12,678.75 in attorney fees and $865.96 in costs because AACC presented “zero competent evidence that Alcauter willingly refused to cooperate.” AACC and Newman appealed the imposition of sanctions to the Illinois Appellate Court for the First District. The court examined llinois Supreme Court Rule 137 requiring that a party’s attorney of record sign every pleading, motion, or other document filed by the party. Ill. S. Ct. R. 137(a)(eff. July 1, 2013). The court reasoned that when an attorney signs a pleading it, in effect, constitutes a

BY KASIM CARBIDE

Locating Your Client: The Benefit of Due Diligence and the Price of Oversight

Z ealous representation of a client is a fundamental aspect of life as an attorney. But, does that zeal include locating a client? A recent case tells the tale of an attorney who failed to exercise due diligence in locating a client to assure the client’s appearance at a legal proceeding. American Access Casualty Co. v. Alcauter, 2017 IL App (1st) 160775. American Access Casualty Company (“AACC”) sold a policy to Jose Alcauter which provided that “AACC could deny Alcauter coverage in the event that he failed to cooperate with AACC in any legal proceeding.” When Alcauter and Kimberly Krebs had an auto accident, Krebs sought arbitration of the matter and was awarded $10,000 on the basis that “no evidence was presented” at the hearing and that Alcauter did not appear “despite having received a Rule 237 notice to appear.” The trial court confirmed the award. AACC then filed a declaratory action on the basis that it was not required to pay the $10,000 judgment because Alcauter “was given notice of the mandatory arbi- tration date and time” and that Alcauter’s failure to appear constituted a material breach of the cooperation clause. AACC filed a motion for summary judgment in the declaratory action, which alleged: “[A]t least two letters . . .were sent to Alcauter’s verified address by his counsel, and at least one letter was Kasim Carbide, a Francis D. Morrissey Scholar at the John Marshall Law School, will received his J.D. in the spring of 2018

sent to Alcauter by AACC. ***Nota- bly, none of the letters were returned by the post office. ***Furthermore, Alcauter’s counsel called [his] client approximately 24 hours prior to the arbitration to remind him to attend***Still, Alcauter failed to appear for the mandatory arbitration [and] counsel was unable to present Alcauter’s version of the events….” AACC’s coverage counsel, James Newman, signed the motion. At the hearing on AACC’s motion for summary judgment, Newman asserted that Alcauter “received a phone call approxi- mately 24 hours before the arbitration in which he confirmed his attendance.” Newman argued that “there [was] no dis- pute ***that [Alcauter] was aware of the arbitration and he didn’t attend.”The court denied the motion for summary judgment, noting that it had “some unanswered questions***that raise issues of fact as to the notice,” particularly the telephone call. The declaratory action proceeded to trial. Cliff Panek, an attorney at the law firm retained to represent Alcauter at the arbitration, identified letters sent to Alcau- ter to inform him of the arbitration date. Panek also testified that it was his firm’s practice to call a client 24 hours in advance of an arbitration to confirm the client’s attendance. Since there was no motion in the file for a continuance, Panek concluded that the client had been contacted and would be present at the arbitration. Panek also attested he was aware he could check certain websites to determine whether a client was incarcerated, but testified there was “no reason to” check in this manner. Of utmost importance was Krebs’s

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