Today is "Love Litigating Lawyers Day"

No, seriously. I found it on line. And, as we all know, if it's on the Internet it must be true. Right?

Right?

Well, anyway, this should do wonders for civility in the profession, at least for a day.

And if there's a special day for transactional lawyers, please let me know. I'll post that too.

Finally, a note to the CBA and ISBA: It's probably too late for your 2013 paper diaries, but "Love Litigating Lawyers Day" should be included in your 2014 books. And don't forget "International Be Kind to Lawyers Day" on April 10.

Judicial selection reform: Panel discussion on 9/11

"Improving Judicial Selection: Are We Ready for Reform?" That's the title of a panel discussion that Better Government Association will sponsor on September 11, from 5:30 to 7:00pm, at the Union League Club, 65 W. Jackson.

BGA President and CEO Andy Shaw will moderate the discussion. Panelists will include Retired Appellate Court Justice Gino L. DiVito and Brian Gladstein, the Executive Director of the Illinois Campaign for Political Reform.

Admission to the event is free but registration is required. To register, visit this page on the BGA website.

P.A. 97-1104 provides only illusion of enhanced school safety

I heard about the new school safety statute on WBBM. For details I turned to Capitol Fax.com -- and, sure enough, in a Sidebar, there was a link to the Governor's August 27 press release on HB 5602, now P.A. 97-1104. The new statute becomes effective on January 1, 2013. Or does it merely go into effect?

Among the statutes amended by P.A. 97-1104 is §22-20 of the School Code, 105 ILCS 5/22-20.

The addition to §22-20 made by the new statute is underlined; the language deleted is stricken out:

Sec. 22-20. All courts and law enforcement agencies of the State of Illinois and its political subdivisions shall report to the principal of any public school in this State whenever a child enrolled therein is detained for proceedings under the Juvenile Court Act of 1987, as heretofore and hereafter amended, or for any criminal offense or any violation of a municipal or county ordinance. The report shall include the basis for detaining the child, circumstances surrounding the events which led to the child's detention, and status of proceedings. The report shall be updated as appropriate to notify the principal of developments and the disposition of the matter.

The information derived thereby shall be kept separate from and shall not become a part of the official school record of such child and shall not be a public record. Such information shall be used solely by the appropriate school official or officials whom the school has determined to have a legitimate educational or safety interest principal, counselors and teachers of the school to aid in the proper rehabilitation of the child and to protect the safety of students and employees in the school.

Governor Quinn's press release states that this new statute was inspired by "an incident at School District U-46 in Elgin where a teacher was attacked by a student who was under investigation at the time for two other violent attacks."

If the school had known about the ongoing criminal investigation of the student, you see, the school might have been able to prevent the incident entirely.

The important thing to keep in mind, however, is that §22-20 has been on the statute books, in one form or another, since 1961. At the time of the Elgin school attack which inspired HB 5602's principal sponsors, Rep. Carol Sente (D-Vernon Hills) and Sen. John Millner (R-Carol Stream), the police who were investigating the student for two other violent attacks were under an affirmative, mandatory obligation to report that investigation to the principal of the school where the student was enrolled.

Now, I am not privy to the facts of the Elgin incident. Perhaps the local police followed the law and told the principal about ongoing criminal investigation of the student who subsequent assaulted a teacher. Perhaps the principal was the bottleneck in that case -- afraid to disseminate the information too broadly among the endangered faculty. The new language arguably clarifies the principal's discretion to tell anyone who needs to know, anyone who has "a legitimate educational or safety interest."

But perhaps the police did not tell the principal in Elgin either.

And do you know the consequence that the police face for failing to follow the express mandate of §22-20?

None whatsoever.

This harsh assessment is based on a recent Illinois case, Doe v. Village of Schaumburg, 2011 IL App (1st) 093300.

Full Disclosure: I was one of the attorneys for the losing plaintiffs in that case.

The facts of the case are heart-rending, even in the brief summary offered by the Appellate Court opinion (2011 IL App (1st) 093300, ¶6):

From August to October 2005, [Christopher] Girard was enrolled in a physical science class at Hoffman Estates High School. Minor Doe and minors Amy, Ann, Jane, and Mary Roe, who were enrolled in a special education program at the high school, also attended the class. During the class, Girard forcibly engaged in various acts with them such as touching their “breasts, vagina and buttock” and anal and vaginal penetration. In August 2007, Girard pleaded guilty to a number of sexual assault charges, including charges of assaulting girls at Hoffman Estates High School in 2005.

The tragedy here was that Girard had been arrested by Schaumburg police in July 2004 and charged with aggravated criminal sexual assault of a minor child but the Schaumburg police did not tell the Hoffman Estates principal. A Schaumburg officer may have mentioned something about Girard's arrest to the Hoffman Estates police officer assigned to the school, but that officer did not tell the principal either. (2011 IL App (1st) 093300, ¶5.)

(The case arose on the pleadings; these are the allegations of the Complaints filed by the several victims. Whether discovery against remaining parties reveals different facts is beyond the scope of this post and is entirely beyond my knowledge.)

The Appellate Court agreed that violation of §22-20 of the School Code might give rise to a duty in tort against the police officer defendants (2011 IL App (1st) 093300, ¶11):

We agree with plaintiffs that a violation of a statute such as the School Code can give rise to a tort claim. See Noyola v. Board of Education, 179 Ill. 2d 121, 130-31 (1997). Furthermore, plaintiffs’ well-reasoned arguments may very well support their contention that the School Code imposes certain duties upon those parties subject to its provisions. However, we need not address whether defendants here owed a statutory or common-law duty to plaintiffs. The existence of a duty and the applicability of an immunity are separate issues.

And, the Appellate Court held, the police were immune from liability despite their failure to comply with the law, determining that, "even if defendants owed such a duty and breached that duty, provisions of the Act may immunize them from liability," §§4-102 and 2-205 of the Tort Immunity Act, 745 ILCS 10/4-102 and 745 ILCS 10/2-205, "immunize defendants from the tort liability alleged in plaintiffs' complaints" (2011 IL App (1st) 093300, ¶11).

Section 4-102 of the Tort Immunity Act states:

Neither a local public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide adequate police protection or service, failure to prevent the commission of crimes, failure to detect or solve crimes, and failure to identify or apprehend criminals. This immunity is not waived by a contract for private security service, but cannot be transferred to any non-public entity or employee.

Section 2-205 of the Tort Immunity Act states, "A public employee is not liable for an injury caused by his adoption of, or failure to adopt, an enactment, or by his failure to enforce any law."

The Appellate Court rejected plaintiffs' argument that the failure to follow (to obey) the law is not the same thing as failing to "enforce" a law. "The failure to follow the provisions of a statute is, in essence, the failure to enforce the statute." (2011 IL App (1st) 093300, ¶17.) The Illinois Supreme Court refused to grant leave to appeal.

The Tort Immunity Act serves a valuable purpose, protecting the taxpayers from raids against the public purse. In these difficult economic times, the concern for the public purse is particularly understandable.

But it is absolutely pointless to pass a statute requiring disclosures for the protection of teachers and students and staff unless there is some expectation that the statute will be obeyed. In Doe, the failure to obey the statute resulted in no adverse consequence to the police departments that failed to obey the law. Why should any department be expected to obey the law as now amended?

While P.A. 97-1104 also amends two provisions of the Juvenile Court Act of 1987, P.A. 97-1104 does not amend any provision of the Tort Immunity Act. It therefore provides no new incentive for any police department to follow the law to replace that which was conclusively removed by the Doe court. Nor is it unfair to suppose that police departments or individual officers may be reluctant to advise school authorities of students who have become embroiled in the criminal justice system. The default mode in all juvenile cases is confidentiality. That has been the hallmark of the juvenile justice system in this state from the time it was first established at the turn of the 20th Century. Police officers are trained not to disclose the identities of arrested juveniles outside the juvenile justice system. On paper, at least, P.A. 97-1104 represents a narrow departure from, or exception to, that rule of confidentiality -- but, while Doe remains good law at least, it is a meaningless, toothless exception that can be routinely ignored.

Thus, as stated at the outset, P.A. 97-1104 goes into effect on January 1, 2013. But it will not be effective. It provides a mere illusion of enhanced safety in our schools.

Kaplan, Kyriakopoulos receive new assignments

The Illinois Supreme Court has appointed Judge James L. Kaplan to a 12th Subcircuit vacancy created by the recent death of Judge Edward R. Jordan.

In another order entered this week , the Supreme Court appointed Judge Anthony C. Kyriakopoulos to a 10th Subcircuit vacancy created by the recent retirement of Judge Daniel J. Sullivan.

At the time of this new appointment, Judge Kaplan was serving pursuant to an appointment to the Cole vacancy in the 8th Subcircuit. Judge Kaplan was a candidate for this vacancy in the March primary, but Chicago Deputy Corporation Counsel John H. Ehrlich emerged as the victor in a crowded field.

At the time of his new appointment, Judge Kyriakopoulos was serving by appointment to the Locallo vacancy in the 10th Subcircuit. He filed for that vacancy in the March primary, but withdrew after former Chicago Ald. Thomas R. Allen (who had been appointed to the countywide Pucinski vacancy) filed in that same race.

The new appointments for Judges Kaplan and Kyriakopoulos became effective August 23; the appointments expire on December 1, 2014.

Retention Judges Reception September 13

The Committee for Retention of Judges in Cook County in 2012 is hosting a reception to raise funds for judges seeking retention in Cook County this year.

The reception will be held on Thursday, September 13, from 5:00 to 8:00pm in the Preston Bradley Hall at the Chicago Cultural Center (the old main library building), 78 E. Washington Street. Tickets are $125 each.

For more information about the event, or to reserve tickets at the door, email mleavitt@grundlaw.com.

Two articles in today's Law Bulletin suggest structural flaw in the legal profession

Today's Chicago Daily Law Bulletin carries two articles that expose what may be a structural flaw in the legal profession itself.

Too big a claim, you say? I believe I can back it up.

First, read Jerry Crimmins' front page story, "Increase in law firm head count exceeds the demand." Crimmins writes that two independent reports, the Citi Midyear Report from the Citi Private Bank Law Firm Group and the Peer Monitor Index Report from Hildebrandt Institute, have concluded, "An increase in lawyer head count in U.S. law firms exceeded demand for legal work in the first half of 2012."

The surveys cover the bigger firms, of course -- the "silk-stocking" firms, the "white shoe" firms (when was the last time any big firm partner actually wore white shoes?) -- the firms that have hitherto set the pace in all the partner income surveys (per Crimmins' article, 114 firms were surveyed by Hildebrandt, while 176 firms were surveyed by the Citi Private Bank).

A lot of these firms slowed hiring and shed talented attorneys at the height of the Great Recession. It was thought that recent hiring increases portended a return to business as usual.

But these surveys suggest otherwise.

Crimmins quotes Joseph B. Altonji, a law firm consultant and co-founder of the LawVision Group as saying that "demand for law firm work 'never recovered' from the drop at the start of the recession in 2008" and probably will not recover "to recover to prerecession levels 'even if the economy gets better.'"

Meanwhile, on page 6, the Law Bulletin reprints an AP story by Dave Collins under the headline, "More people go to court without representation."

Collins begins by focusing on one pro se litigant, Jennifer Garcia, a single mother of two, who has gone to court representing herself on various matters several times over the last three years. Collins writes, "Garcia is part of a crush of people who are representing themselves in the nation's civil courts because they can't afford lawyers, who typically charge $200 to $500 an hour. The boom has overwhelmed courts and sparked new efforts to get attorneys to meet what the American Bar Association says is its professional responsibility to offer free legal services to people in need."

This has been the traditional response of the legal profession to pro se litigants: All (or nearly all) pro se litigants are poor people and we lawyers, better educated and more fortunate, must volunteer to help them, without cost, pro bono.

It is a generous, laudable response. This spirit animates the Illinois Supreme Court's recent adoption of Rule 10-100. The impulse to provide professional services on a voluntary basis has its roots in many religious and ethical traditions (see, for example, Matthew 14:7, "The poor you will always have with you, and whenever you wish you can do good to them....").

But are all these new pro se litigants really "poor people"?

Per Collins' article:

Several states report high percentages of civil and family cases with at least one self-represented person. In Connecticut, 85 percent of the approximately 45,000 family law cases in the 2011 fiscal year had at least one self-represented party.

In other words, pro se litigants are starting to show up with increasing frequency in courtrooms that hear matters other than collection cases or mortgage foreclosures.

To meet this influx of unrepresented litigants, court systems are increasingly stretching the definition of "voluntary." Illinois lawyers are already required to report whether they perform any pro bono work or donate to legal charities and, if so, to reveal how many hours they've worked or dollars they've given. According to Collins' article, New York State will now require attorneys in that state to 'volunteer' 50 hours of pro bono service in order to keep their licenses.

Judges privately express frustration with dockets increasingly clogged with pro se cases; even careful viewing of The People's Court turns out to be less than optimal training for real-life courtroom appearances. Given a choice, most judges would want all parties before them to be represented by counsel.

But the trend now is otherwise.

So: On the one hand we have slowing demand for legal services, even among well-heeled or corporate clients and, on the other, we have a huge uptick in pro se litigants in our courts.

What does that tell us? Even allowing for inescapable truth that the Great Recession has swelled the ranks of truly poor people, I submit that these two stories, taken together, suggest that those that can afford to hire us are doing so as infrequently as possible; those who might be able to afford to hire us are choosing to try to go it alone. And that means we may be pricing ourselves beyond the reach of our customers. In a time when many new lawyers can't find work and established lawyers are tightening their belts, we have many prospective clients choosing not to use lawyers at all, or to use them minimally. I think this may constitute a structural flaw in our profession.

Interestingly enough, a third article in today's Law Bulletin suggests one possible explanation for how lawyers are pricing themselves beyond the reach of clients -- a topic to which I hope to return in a few days. (And, no, it's not hourly rates.)

Christine Cook campaign website found

A campaign website for Christine Cook, Republican nominee for the "A" vacancy in Cook County's 4th Judicial Subcircuit, is now up and running.

That's a link in the preceding sentence; a link has also been added to the Sidebar.

Cook's opponent in the November election is Democrat Edward M. Maloney.

Judge Larry Axelrood's final fundraiser August 27

Associate Judge Larry Axelrood eked out a narrow victory in the race for the Epstein vacancy in the 9th Subcircuit this March. Although he faces no opposition in November, he does have a campaign debt to retire.

Accordingly, per email received from Thom Mannard, Judge Larry Axelrood has scheduled his final fundraiser for Monday, August 27 at the Wilmette Golf Club, 3900 Fairway Drive in Wilmette from 5:30 to 7:00.

For further information about the event, or to make reservations, email electjudgeaxelrood@gmail.com.

Judge Bill Taylor appointed to Appellate Court

The Illinois Supreme Court has appointed Cook County Circuit Court Judge Bill Taylor to the Illinois Appellate Court vacancy created by the recent death of Justice Joseph Gordon.

Judge Taylor's appointment became effective July 27 and runs through December 1, 2014.