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 Illinoiscaselaw.com. 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.  

Tuesday, May 5, 2015

That didn't take long.

A class action lawsuit was filed today against Manny Pacquiao and several of his promoters for failing to disclose the fighter's alleged shoulder injury prior to the fight. The complaint alleges fraudulent concealment and violations of Nevada's consumer fraud act. The plaintiffs allege that defendants committed deceptive trade practices when they failed to disclose a material fact in connection with the sale of goods or services. 

I'm not too sure this one is going to fly. I don't think it was material whether Manny's shoulder was at full strength. If Manny was going to fight, everyone was still going to purchase the pay-per-view. But maybe if he would have disclosed the injury, the boxing commissioner would have cancelled the fight and everyone would have got their money back. I don't know. 

The complaint also cites a section of the Nevada statute which prohibits "false representations" in consumer transactions. I saw other news reports today that the Nevada Athletic Commission is considering perjury charges against Pacquiao for failing to disclose the shoulder injury on a pre-fight medical questionnaire. That count may have a little more traction if Pacquiao's people did sign a document under oath. However, I still think this lawsuit fails because the general public was not privy to that medical questionnaire and could not have relied upon it when deciding to purchase the pay-per-view. As usual, I will continue to monitor this case and I will keep you apprised of any interesting developments.

Tuesday, April 28, 2015

Disparaging the Courts: One Pro Se Litigant and One Federal Judge at a Time

On April 23, 2015, Mike Huseman posted an interesting motion filed by a pro se litigant in a Georgia federal court. The motion titled, “To F*ck This Court and Everything that it Stands For,” adds insult to injury by referring to the judge as, “you old, IMPOTENT geezer.” Mr. Huseman opined that the motion warranted a stiff contempt sentence. And it’s hard to argue with him especially in light of the outrageous statements in the motion. But let me offer some mitigation based on the most comparable situation that I could find. That situation involved another federal judge. But in this instance the judge was the offender, not the victim. Federal district court judge Richard G. Kopf criticized the Supreme Court’s Hobby Lobby decision in his blog, “Hercules and the Umpire” (here). After blogging that the Court’s decision “looks stupid and smells worse,” the judge concluded his post with, “it is time for the Court to stfu.” A link to the Urban Dictionary explained that “stfu” is an acronym for, “shut the f*ck up.” Now, some might argue that a motion and a blog are not comparable. I agree. The blog post is worse.

First, the pro se motion was directed at a single judge whereas the blog post was directed at nine judges. Second, the Georgia motion was directed at the lowest level federal judge while the blog post was directed at the country’s highest ranking judges. Third, no one with the possible exception of a judge’s law clerk reads pro se motions. On the other hand, “Hercules and the Umpire” is a popular blog read by thousands. (The Hobby Lobby post elicited 314 comments.) Fourth, the federal judicial code requires judges to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”  No similar ethics rule binds pro se litigants. Fifth, the pro se motion, in effect, states that the court is worthless. Well, everyone is entitled to their opinion. But the federal judge’s blog post not only questions the integrity of the Court but goes further and demands that the Justices not exercise their God-given rights guaranteed by the First Amendment.

So, on balance, the pro se litigant probably should not receive worse punishment than the judge who authored the blog post. And yes, that would be no punishment.      

Monday, April 27, 2015

Motion for Fist Fight

In keeping with last week's theme regarding outrageous motions, I had to repost this classic motion from Montana in 2006.

Attorney Kirk Krutilla represented a criminal defendant who had stabbed another man to death. He was asserting self-defense. He claimed that the decedent was actually the aggressor who was beating up the much smaller defendant. In order to defend himself, the defendant pulled out a knife and killed the larger man.

Attorney Krutilla interpreted the State's prosecution of his client as an endorsement of decedent's bullying of a smaller and weaker person. So, he filed a motion seeking to give the prosecution team a chance to enforce their principles, i.e. "the brutal humiliation and beating up of weaker human beings." 

He requested a court order allowing a fist fight between himself and his co-counsel against the two prosecuting attorneys. 

The prosecution's response was perfect. They argued that they "could acquit themselves respectably if it were necessary to settle any part of this matter by means of a physical contest," but, nonetheless, they respectfully requested that the motion be denied. Here is the motion. 

Thursday, April 23, 2015

Motion to F*ck This Court and Everything that it Stands For

This motion has been making the rounds on the legal blogs this morning. It was filed on Monday in a federal case in the Northern District of Georgia. I've seen some disrespectful things from pro se litigants (and lawyers) before, but this takes the cake. Just wow. There is so much stuff in here. What is the longest someone can be jailed for contempt? Because this lady needs a maximum sentence. 

I don't think the judge will allow this type of behavior to go unpunished. I just subscribed to this PACER docket so that I can see what happens next. I'll keep you apprised of any developments. 

Thursday, March 26, 2015

The Estrays and Lost Property Act

The Estrays and Lost Property Act (here) is pretty interesting. I stumbled across it last week while doing other research. I quickly dusted off the Black's Law Dictionary for the definition of estray:
estray (e-stray), n. 1. A valuable tame animal found wandering and ownerless; an animal that has escaped from its owner and wanders about. 2. Flotsam.
Then, of course, I had to look up flotsam:
flotsam (flot-səm), n. Goods that float on the water's surface after being abandoned at sea.
This all makes sense because Section 1 of the Act says that "Any horses, mules, asses, cattle, swine, sheep or goats found straying, the owner thereof being unknown, may be taken up as estrays in the same manner as provided for lost goods." 

Also, Section 21 of the Act says that "Any raft, timbers or plank found floating adrift on any water course within the limits or upon the borders of this State, the owner thereof being unknown, may be taken up in the same manner as provided for lost goods."

So, if both estrays and flotsam are treated as if they are lost goods, the question becomes how exactly should lost goods be treated. It turns out that the Act effectively outlaws the ancient playground theory of "finders keepers, losers weepers." 

Section 27 of the Act provides that "If any person or persons find any lost goods, money, bank notes, or other choses in action, of any description whatsoever, such person or persons shall inform the owner thereof, if known, and shall make restitution of the same, without any compensation whatever, except such compensation as shall be voluntarily given on the part of the owner." 

If the owner is not known, and if the value of the lost property is more than $100, the Act requires the finder to file an affidavit in the circuit court that contains a description of the found property. The court shall then enter an order stating a description and the value of the property. That order shall be "transmitted to the county clerk to be recorded in his estray book," and also filed in the office of the county clerk. 

After the county clerk receives that order, the county clerk shall publish notice in a public newspaper for three consecutive weeks. If the owner does not claim the property within one year of publication, ownership vests in the finder. A very cumbersome process, but the Act provides liability for double the value of the property if the finder sells, trades, destroys or otherwise disposes of the found property without complying with the Act.

Lastly, I found it odd that Section 27 includes "choses of action" in the list of property that could possibly be found in this state causing them to become subject to the terms of the Act. In order to try to make sense of this, I went back to the Law Dictionary:
chose in action. 1. A proprietary right in personam, such as a debt owed by another person, a share in a joint-stock company, or a claim for damages in tort. 2. The right to bring an action to recover a debt, money, or thing. 3. Personal property that one person owns but another person possesses, the owner being able to regain possession through a lawsuit.
Oh ya, that's right. A proprietary right in personam. I can't tell you how many times I have been walking down the street, something catches my eye, and I've said to myself "well look at that...there's a chose in action on the ground."

Saturday, March 21, 2015

The Illinois Gender Violence Act

Last December, a doctor who practiced in Yorkville and Naperville was arrested on charges of criminal sexual assault. The Kendall County State's Attorney's Office alleges that the doctor inappropriately touched or fondled several female patients between 2012 and 2014. Kendall County detectives are looking for additional victims.

The victims of the sexual assaults are entitled to damages from the offending doctor, and depending on the circumstances, may also be entitled to damages from the hospitals and clinics that employed the doctor. Obvious theories of common law recovery include sexual battery, assault, and intentional infliction of emotional distress, among others. 

These victims, however, should not overlook the Illinois Gender Violence Act (the "Act"). The Act provides for a private cause of action for anyone who has been subjected to gender-related violence. Gender-related violence is defined as "a physical intrusion or physical invasion of a sexual nature under coercive conditions satisfying the elements of battery under the laws of Illinois, whether or not the act or acts resulted in criminal charges, prosecution, or conviction." 

Victims of gender-related violence may bring a civil action for damages, injunctive relief, or other appropriate relief. In an action brought under the Act, the court may award actual damages, damages for emotional distress, or punitive damages. A judgment may also include attorney's fees and costs.

If anyone has questions about the applicability of the Illinois Gender Violence Act, please do not hesitate to send a confidential email HERE.  

Friday, March 20, 2015

Appellate Court Reflects on Exculpatory Clauses

In Hawkins v. Capital Fitness, Inc., 2015 IL App (1st) 133716 (here), Michael Hawkins sued his health club for negligently installing a wall mirror that fell on him while he was exercising. The trial court entered summary judgment in favor of Capital Fitness because the exculpatory clause in the plaintiff’s membership agreement barred negligence actions against the fitness center. The following provision of the exculpatory clause does appear to exempt Capital Fitness from injuries caused by faulty maintenance of its facilities.
THIS HOLD HARMLESS FROM [sic] AND WAIVER AND RELEASE OF ALL LIABILITY INCLUDES, WITHOUT LIMITATION, (i) INJURIES, DAMAGES OR DISEASES WHICH MAY OCCUR AS A RESULT OF (A) YOUR USE OF ANY FACILITY OR ITS IMPROPER MAINTENANCE, (B) YOUR USE OF ANY EXERCISE * * * EQUIPMENT, (C) IMPROPER MAINTENANCE OF ANY EXERCISE * * * EQUIPMENT OR FACILITIES * * * AND (ii) INJURIES OR MEDICAL DISORDERS RESULTING FROM EXERCISE, OR USE OF EQUIPMENT OR FACILITIES, AT THE FACTILITY * * *  (Emphasis added).

The appellate court acknowledged that “[a] literal reading of the membership agreement reveals that Hawkins released Capital Fitness of all liability from injury, no matter the source, cause, or circumstance.” So, it would seem that the appellate court should have affirmed the entry of summary judgment for the defendant since the plaintiff claimed that the club’s maintenance crew improperly hung the mirror and the disclaimer held Capital Fitness harmless for improper maintenance of the club’s facilities.   
                     
But according to the appellate court, the ultimate question was whether the mechanism causing the injury was a type contemplated by the parties when they executed the membership agreement. Vacating the entry of summary judgment, the court concluded that reasonable minds could differ on whether the mirror-falling incident was an ordinary risk associated with the use of a fitness facility. Presumably, dropping a barbell on your throat constitutes a risk associated with using a fitness club, while a scalding shower, a defective closet door, or an unhinged mirror might not be the type of risk one assumes when agreeing to a fitness center’s exculpatory clause.

Hawkins will aid plaintiffs who assert that a genuine issue of material fact exists as to whether an injury sustained while using a health club or other sports or recreational venue, was caused by a mechanism contemplated by the parties at the time they agreed to the exculpatory clause. The argument against summary judgment is further bolstered by the strict construction of an exculpatory clause against the party who relies on it.