Monday, August 31, 2015

Aurora's Habitual Drunkard List is Unconstitutional

On August 25, 2015, the Aurora City Council amended the City's liquor ordinance to prevent any holder of a liquor license from selling or giving alcoholic liquor to "known habitual drunkards." The new section of the liquor ordinance is linked HERE.

The ordinance defines a known habitual drunkard as a person who, within the past 180 days:
  • Has been convicted of six or more civil or criminal offenses in which the police officer who made the arrest determined, based upon the training and experience of the officer, that the person was under the influence of alcohol;
  • Has been transported and hospitalized six or more times under conditions where the person appeared to be incapacitated by alcohol and in need of emergency treatment; or
  • Has been subject to six or more convictions or hospitalizations in any combination as described above.
The police chief maintains the list and shall "in his judgment" determine the contents of the list. Whenever the chief determines that a person meets the definition of a known habitual drunkard, the chief shall cause that person's name and photograph to be placed on the list.

Unfortunately for the City Council, the Illinois and United States Constitutions prohibit the government from depriving people of life, liberty, or property without due process of law. The due process requirement acts as a safeguard against the arbitrary denial of a person's legal rights by the government. Due process generally requires notice and the opportunity to be heard (defend yourself) before being deprived of your legal rights.

The United States Supreme Court has held that "where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and the opportunity to be heard are essential." Wisconsin v. Constantineau, 400 U.S. 433 (1971)

The Constantineau case involved a Wisconsin law that allowed police chiefs to "post notices in retail liquor outlets naming persons to whom the sale of liquor is forbidden because of their prior excessive drinking." The Wisconsin law did not provide for any notice to the individual before their names and pictures were posted in bars and liquor stores. 

The Supreme Court declared the law unconstitutional because any public labeling or characterization of an individual that will expose him to public embarrassment and ridicule requires that the individual involved must be given notice and an opportunity to defend himself. The Supreme Court noted that "the right to be heard before being condemned to suffer grievous loss of any kind is a principle basic to our society" and that being publicly named a drunkard by the government is just such a "grievous loss."

Admittedly, the Aurora ordinance does provide for notice to affected persons. The police chief has to provide the person with a written notice that their name will be placed on the list. The burden is then on that person to appeal the determination within five days of receiving the notice.

However, the notice provisions are insufficient and the Aurora ordinance violates the principles of due process, as well as Supreme Court precedent, for several reasons.

First, the ordinance on its face requires the chief to place people on the list without due process. See Sec. 3 ("Whenever the chief determines that a person meets the definition of a known habitually intoxicated person ... the chief or designee shall cause the name of that person to be placed on said list.").

Second, the notice provision of the Aurora ordinance is confusing and illusory. It offers no protection to the people of Aurora at all. According to the Supreme Court, the individual must be given notice and the opportunity to present his side of the story BEFORE being publicly ridiculed by the government.

Section 4 of the Aurora ordinance appears to comply with the law by saying that the police chief shall provide the person with a written notice that their name "will be placed" on the list of habitual drunkards. This section, standing alone, implies that the person will have the chance to defend himself before being placed on the list. However, the person's name is already on the list pursuant to Section 3. 

Furthermore, the person's only remedy after receiving the notice is to appeal under Section 5. An appeal is defined as "a proceeding undertaken to have a decision reconsidered by bringing it to a higher authority." Appeal, Black's Law Dictionary (10th Ed. 2014). By labeling this section as an appeal, the City is admitting that the determination of habitual drunkenness has already been made and that the person's only remedy is to seek reconsideration. 

Also, Section 5(v) provides that if the person is successful with his appeal, the chief shall "remove" the person's name from the list. Don't try to fool us Aurora, the person's name is already on the list long before you send him any notice, meaning that the Government has publicly ridiculed someone without due process. 

Third, the definition of a habitual drunkard is vague and subjective. Nothing in the entire ordinance requires anyone to actually be drunk. If a person "appears" to be drunk six times in six months they are labeled a habitual drunkard without any other evidence. A quick search of Web MD reveals no less than 10 other conditions than can cause slurred speech besides alcohol consumption, including stroke, brain aneurysm, hypoglycemia, etc. It's not a very high burden that the City has to meet.

In conclusion, it appears that Aurora's new habitual drunkard list violates the due process requirements of the State and Federal Constitutions.

Tuesday, August 4, 2015

50 Cent is Broke

As most of you know, Curtis James Jackson, III a/k/a 50 Cent filed Chapter 11 bankruptcy on July 13, 2015. He filed what's commonly known as a skeleton petition, which is a bare-bones filing used to get a case on file quickly and which does not contain the required disclosures regarding assets and liabilities. He then filed a motion to extend the timeline to file his actual disclosures, which was granted. On August 3, 2015, he finally filed the rest of his schedules.

To make a long story short, he was almost $8M underwater on the day he filed bankruptcy. I have attached the relevant documents below. Here is a brief explanation of the interesting documents: Schedule A contains his real estate holdings; Schedule B contains all of his other personal property and assets; Schedule D lists the mortgage on his house; Schedule F lists all other unsecured debts, except child support; Schedule I lists monthly income; and Schedule J lists monthly expenses.

Here are the highlights:

  • Total Assets: $24,823,899.18
  • Total Debts: $32,509,549.91
  • Monthly Income: $184,969.58
  • Monthly Expenses:  $108,000
  • Cash in the bank: $10,554,486.13
  • Ownership interests in his companies: $4,412,712.24
  • Total value of his automobiles: $500,618
  • Monthly child support: $14,600
  • Monthly household expenses/utilities: $72,000
  • Monthly meals and entertainment: $3,000
  • Monthly wardrobe: $3,000

Here are the complete schedules. Take a look and let me know if you have any questions about anything in here.

Saturday, August 1, 2015

Amendments to Illinois Pro Hac Vice Rules

The Supreme Court of Illinois amended Rule 707 (renamed as Permission for an Out-of-State Attorney to Provide Legal Services in Proceedings in Illinois) and made related amendments to Rules 756(a) and (a)(1) and 718(e) and (f), all effective for appearances filed in proceedings on or after July 1, 2013. The amendments do not require any action by an out-of-state attorney who obtained permission to enter an appearance in an Illinois proceeding prior to July 1, 2013.

Amended Rule 707 permits an out-of-state attorney to enter an appearance in a proceeding in Illinois before a court, a court-annexed alternative dispute resolution body, or a agency or administrative tribunal of the State of Illinois or of a local government unit, if the attorney: 
  • meets licensure and other eligibility requirements
  • associates with an Illinois attorney who files an appearance in the proceeding
  • files a verified Statement with the tribunal

No order of the tribunal permitting the appearance is required. However, the attorney must serve the verified Statement on the ARDC, register annually with the ARDC, and pay fees to the ARDC.

Amended Rule 707 does not affect the longstanding practice under which an out-of-state attorney authorized to practice law in another United States jurisdiction is permitted to provide legal services at a deposition in an Illinois proceeding without need of separate Rule 707 permission, if the out-of-state attorney is assisting an attorney whose appearance in the proceeding is authorized, regardless of the location of the deposition. The out-of-state attorney is subject to the disciplinary jurisdiction of the Supreme Court of Illinois (Supreme Court Rules 751(a), 752(a) and (b), 779(a) and Rule 8.5 of the Illinois Rules of Professional Conduct). The longstanding practice is consistent with Rule 5.5 of the Illinois Rules of Professional Conduct. This practice does not permit an out-of-state attorney to file an appearance or to provide legal services before the tribunal, including the filing of any pleading, motion, or other document,  without obtaining Rule 707 permission.

Click here for instructions for a Rule 707(d) statement and for a listing of fees and requirements.

Friday, July 17, 2015

Donut Fridays

The South Carolina Bar Ethics Advisory Committee has issued an opinion (here) approving a law firm's weekly delivery of a box of donuts to banks and real estate agencies that refer clients to the firm. The boxes also contain beverage "koozies" bearing the firm's name and a coupon for $50.00 off a consultation or real estate closing. The Advisory Committee found that Rule 7.2(c) of the South Carolina Rules of Professional Conduct governed the situation. Like Illinois Rule 7.2(b), the South Carolina rule prohibits a lawyer from giving "anything of value to a person for recommending the lawyer's services." According to the South Carolina opinion, as long as the weekly donut boxes were delivered regardless of whether the recipient had referred clients to the firm that week, Rule 7.2 was not violated. A violation would occur, however, if delivery of the donut box was contingent on referrals to the firm.

For large sections of suburban Chicago such a transparent advertising ploy offering “koozies,” discount coupons, and donuts simply would not work. In those communities the box would need to contain "koozies," discount coupons, and kale.

Monday, July 6, 2015

Continued Employment as Consideration for Postemployment Non-Compete Clauses

McInnis v. OAG Motorcycle Ventures, 2015 IL App (1st) 130097 (here), provides valuable insight concerning the enforceability of restrictive covenants in employment contracts. The appellate court began by summarized the requirements for an enforceable restriction on an employee’s future employment, namely, that the restrictive covenant is (1) ancillary to a valid contract, (2) supported by adequate consideration, and (3) reasonable.

Moving to the heart of the matter, the court evaluated the adequacy of the consideration supporting the restrictive covenant in McInnis’s employment contract with OAG. The court recognized that employment for a substantial period of time after initiation of an at-will employment agreement can be sufficient consideration. But the court also noted that Illinois case law appears to require at least two years of continuous employment to permit a finding of adequate consideration. Since McInnis had been employed by OAG for only 18 months, the court found the consideration inadequate and affirmed the trial court’s denial of OAG’s motion for a preliminary injunction enforcing the covenant.

The majority opinion in McInnis holds that for continued employment standing alone to constitute adequate consideration, the employment must continue at least two years. Employment for a shorter period is insufficient. The dissent argued that such a “bright-line” test is illogical and unfair and that there is no reason that employment for 23 months should automatically be deemed inadequate consideration to support a restrictive covenant.

The value of the opinion lies not only in its thorough discussion of Illinois cases on the two-year “bright-line” rule but also in its discussion of the split among the federal courts interpreting Illinois law on the issue.

Saturday, June 13, 2015

Proposed Amendments to the Illinois Rules of Professional Conduct

On July 22, 2015, the Illinois Supreme Court Rules Committee will conduct a public hearing on multiple proposed changes to the Rules of Professional Conduct. (The hearing notice is here and the proposed amendments are here).

The proposed amendment to Comment 2 of Rule 1.18, seeks to clarify the circumstances under which a communication by a visitor to a law firm's Web site can transform the "visitor" into a "prospective client." Proposed Comment 2 describes a firm's Web site that merely provides general legal information and sets forth the lawyer's education, experience, and practice areas. E-mailing information to that firm most likely will not transform the visitor into a prospective client. However, if a firm's Web site goes further and specifically requests or invites the visitor to submit information "without clear and reasonably understandable warnings and cautionary statements that limit the lawyer's obligations,” then a submission "likely” will constitute a consultation and establish a prospective client relationship.

ABA Formal Opinion 10-467 (here), suggests that a Web site disclaimer warn visitors that (1) sending information does not create an attorney-client relationship; (2) information sent is not confidential; (3) no legal advice has been given; and (4) the firm will not be prohibited from representing an adverse party. To be effective, the disclaimer must be conspicuously placed and in language understandable to a reasonable person.

Regardless of whether the Supreme Court adopts the proposed amendment to Comment 2, it may be a good time for law firms to check their disclaimers against the requirements of ABA Formal Opinion 10-467. And if the proposed amendment is adopted, it may be appropriate to add to the disclaimer that sending a communication does not create an attorney-client relationship or an attorney-prospective client relationship.

Wednesday, May 27, 2015

Illinois Lawyers Must Now Register Online

Amended Illinois Supreme Court Rule 756, effective June 1, 2015, requires all attorneys to register annually online.  Paper registration is no longer accepted.

As part of the yearly registration process, new Rule 756(g) also requires that lawyers provide the Attorney Registration and Disciplinary Commission with the following information (1) an address, email address, and telephone number; (2) a residential address; (3) a list of other states in which the lawyer is licensed to practice law; (3) the type of entity at which the lawyer practices, the number of lawyers in that organization, the lawyer’s principle areas of practice; and (4) whether the “organization has established a written succession plan.” The information required by (2)-(4) above will remain confidential.

Amended Rule 756 is here and the Supreme Court’s press release announcing the Rule change is here.

Thursday, May 14, 2015

Limited Scope Representation Retainer Agreements

Illinois has recognized limited scope representation for a long time. In 1983, an Illinois State Bar Association opinion (here) approved the preparation of pleadings for a pro-se litigant in a dissolution of marriage proceeding. But the real impetus behind unbundled legal services came with the adoption of Rule 1.2(C) of the Illinois Rules of Professional Conduct in 2010. Rule 1.2(C) specifically authorizes the provision of discrete legal services: “A lawyer may limit the scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent.”

Several sample limited scope retainer agreements are available. The Chicago Bar Association offers one here. The ABA provides templates here. These and other sample agreements nicely define the scope of representation through a “check-the-box” format. But the forms do not directly address the requirement of Rule 1.0(e) that to obtain informed consent a lawyer must explain the “material risks” and “reasonably available alternatives” to the limited scope representation. While each case has its own particular risks and alternatives, it seems that the usual alternatives to be discussed include (1) the client handling the entire case without counsel; (2) full representation by counsel; and (3) the possibility of representation by a legal aid or pro bono attorney. Material risks might include that the lawyer’s factual and legal investigation will not be as complete as when the lawyer provides full representation and that the client’s lack of understanding of laws, rules, and court procedures may adversely affect the client’s ability to introduce evidence; explain his position to the court; present and respond to pleadings, notices, and motions; understand court rulings; and properly evaluate settlement offers.

Best practices would seem to dictate that the limited scope retainer agreement contain at least a summary of the alternatives and material risks discussed with the client.

Friday, May 8, 2015

Can a driver legally make a u-turn to avoid a DUI checkpoint?

Criminal defense attorney Samuel Partida, Jr. publishes a tremendous criminal law blog and podcast located at He's also a great follow on Twitter (here). 

One of last week's podcasts analyzed whether a police officer would have reasonable suspicion to make a traffic stop if a driver made a u-turn to avoid a DUI checkpoint. The podcast was inspired by the Illinois criminal court case People v. Timmsen, 2014 IL App (3d) 120481

The answer may surprise you. I don't practice DUI or criminal law, so I don't know how this typically plays out in the real world, but I'd be willing to bet that 100% of the people who try to avoid checkpoints get pulled over even though the vast majority should not.  

Samuel's podcast is timely in light of the article in this morning's Tribune about DUI checkpoints (here). It turns out that the large majority of roadside checkpoints are conducted in areas populated mostly by minorities, whereas predominately white communities actually have higher rates of drunken driving accidents and fatalities. The Tribune article states that Chicago's policies regarding the location of DUI checkpoints probably violate federal guidelines. I'd be very interested in a Tribune investigation into improper traffic stops for legal u-turns in front of roadside checkpoints. 

Anyway, Samuel is blogging and podcasting about plenty of other fascinating issues for criminal law practitioners. His website is also approved for MCLE credit by the Illinois Minimum Continuing Legal Education Board, so if you still need any CLE hours check out his website here.