CBA Record July-August 2018
JULY/AUGUST 2018 CBA
Steven M. Elrod 2018-19 CBA President
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July/August 2018 • Volume 32, Number 4
6 Editor's Briefcase The PictureWindow 8 President’s Page
INSIDE THIS ISSUE 34 Balancing Due Process, Safety, and Privacy: Is it Time for
My Three C's: Civics, Civility, and Collegiality
No-Name Criminal Juries in Cook County? By Judge Charles P. Burns and Ana Montelongo
12 CBANews 28 Chicago Bar Foundation Report 30 Murphy’s Law 52 Legal Ethics Access to Justice–the Interface Problem By John Levin 54 LPMT Bits & Bytes Future-ProofingYour Law Practice By Sharon D. Nelson and JohnW. Simek
38 Meet CBA President Steven M. Elrod: Dealmaker Extraordinaire By Sally Daly 44 Remembering Judge George N. Leighton: A Man of Courage, Principle, and Integrity
YOUNG LAWYERS SECTION
48 I Look Forward to Working with You By Brandon E. Peck 50 Pay Inequity in the Legal Profession: The Pink Elephant in the Room By Svetlana Gitman 51 Expanding our Virtual Brand: Introducing @theBar, the YLS Blog By Lindsey L. Purdy
On the Cover This month's CBA Record cover features our 2018-19 CBA President, Steven M. Elrod, of Holland & Knight LLP. Photo by Bill Richert.
The CBA Record (ISSN 0892-1822) is published seven times annually (January, February/March, April/May, July/August, September, October, November) for $10 per year by The Chicago Bar Association, 321 S. Plymouth Court, Chicago, Illinois 60604- 3997, 312/554-2000, www.chicagobar.org.Subscriptionsfornon- membersare$25peryear.PeriodicalspostagepaidatChicago, Illinois.POSTMASTER:Sendaddresschangesto CBARecord ,c/o Kayla Bryan, Chicago Bar Association,321SouthPlymouthCourt, Chicago,Illinois60604. Copyright2018byTheChicagoBarAssociation.Allrightsreserved. Reproductioninwholeorinpartwithoutpermissionisprohibited. Theopinionsandpositionsstatedinsignedmaterialarethoseof theauthorsandnotbythefactofpublicationnecessarilythose oftheAssociationoritsmembers.Allmanuscriptsarecarefully consideredbytheEditorialBoard.Allletterstotheeditorsare subjecttoediting.Publicationofadvertisementsisnottobe deemedanendorsementofanyproductorserviceadvertised unlessotherwisestated.
Steven M. Elrod 2018-19CBAPresident
EDITOR’S BRIEFCASE BY JUSTICE MICHAEL B. HYMAN, EDITOR-IN-CHIEF B y tradition, Herb, the only founding partner still alive, had the last word at law firm functions. As he stood before the celebrants of the law firm’s 60th anniversary, Herb felt deeply nostalgic; so much had changed since he and two law school buddies had rented a three-room suite in a deteriorating building on North Clark Street. The law firm had grown into one of the best known in the city. It was an early leader in hiring women and minorities and electing them partners, and acquired a reputation for treating its staff well, even in tough times. The firm also established a presence in the virtual world before most of its competitors. These achievements came about at Herb’s urging. From the firm’s inception, Herb had encouraged civic, bar, philanthropic, and pro bono endeavors by every partner, not just associates. And the firm financially supported organizations in which its lawyers served. In recent years, however, the firm had slowly reinvented itself, and not all for the better, in Herb’s opinion. The monthly financial reports, which he still reviewed, depicted a firm pressing for more billable hours, placing less emphasis on pro bono service, and pruning its civic and philanthropic donations, despite steady profitability. Herb began his remarks with obligatory thank-yous and oft-told tales of the firm’s early days. Then he paused. He had their attention. “I know the practice of law is different today than in my day. But some things must never change. Let me share a story my father, also a lawyer, related to me when I started practicing law.” “There lived a kind and generous man whose house had a large picture window from where he could view of the entire village. Whenever he saw someone who needed help, he always graciously accommodated him or her. He spent most mornings standing at that large picture window so the villagers would know he was there should they have a need.” “The man became more wealthy with the passing years. One day he decided to make a concession for himself. Although he still helped the villagers, he placed pure silver along the edge of his large picture window. In time, though, he covered more of the picture window with silver, until the entire window was encased.” “From then on, all the man could see was his own reflection instead of his neighbors who needed his help.” “There are overwhelming and crushing needs, just beyond our windows. I am concerned that our lawyers have closed themselves off from the outside. That we have become too self- absorbed to help those who need our help. Self-absorbed with our practices. Self-absorbed with firm demands and with personal demands on our time, energy, and attention. Too many hours are devoted to the firm’s bottom-line and our own. Surely, that is not how it should be.” “We must—must—look out our windows and serve the community in which we live. By performing at a minimum 50 hours of pro bono work a year, whether a senior or income partner or an associate. By actively participating in bar associations. By advancing civic and charitable causes. By helping those who ask us for help and those who do not ask, but who we know need our help.” “Do not lose sight of the bigger picture. Do not become invisible. Do not close yourself off from the community.” “Be present in the community. Look out for those we should be helping. Extend yourself. It is part of our calling as lawyers.” Rehearing “There is nothing more tragic in all this world than to know right and not to do it.” —Dr. Martin Luther King, Jr.
EDITORIAL BOARD Editor-in-Chief Justice Michael B. Hyman Managing Editor Amy Cook Associate Editor Anne Ellis Summary Judgments Editor Daniel A. Cotter YLS Journal Editors-in-Chief Natalie Chan
Daniel J. Berkowitz
Carolyn Amadon Jonathan B. Amarilio Nina Fain Anthony F. Fata Clifford Gately Jasmine Villaflor Hernandez John Levin Bonnie McGrath Clare McMahon Pamela S. Menaker Peter V. Mierzwa Kathleen Dillon Narko Adam J. Sheppard Nicholas D. Standiford Richard Lee Stavins
Judge E. Kenneth Wright, Jr. Rosemary Simota Thompson William A. Zolla II
THE CHICAGO BAR ASSOCIATION David Beam Rebecca Martin
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PRESIDENT’S PAGE BY STEVEN M. ELROD
The Chicago Bar Association www.chicagobar.org
OFFICERS President Steven M. Elrod
Holland & Knight LLP First Vice President Jesse H. Ruiz
name all three branches of government • One in three Americans (33%) cannot name a single branch of government In a similar survey, the New York Times found that fewer than 50% of the nation’s eighth graders know the purpose of the Bill of Rights, and only 25% of high school seniors are able to name a power granted to Congress by the U.S. Constitution. The Pew Research Center found that less than 3 in 10 people can name the Chief Justice of the U.S. Supreme Court and that 70% of Americans have absolutely no idea of what the federal government does and doesn’t do. Pew went on to say that “The level of civic ignorance allows our politicians to make lowest common denominator appeals, which leads to public discontent about the inability of politicians to make good on campaign promises.” A Harvard Political Review study draws a parallel between the lack of civic awareness and low voter turnout in our local, state and national elections and cites the 2016 presidential election in which voter turnout hit a 20-year low. The correlation between low voter turnout and lack of knowledge of civics illustrates the need for a significant increase in civics education. The Harvard study also noted that millennials’ trust in government has plummeted, with no public institution earning more than half of their support. The failure to engage Americans in our democracy is a tragedy that will continue to have a profound array of long-term nega- tive effects on our country. A recent Los Angeles municipal election had a meager 12% voter turnout. Back home, only 31% of registered voters in Cook County cast a ballot in the March 2018 primary elec- tion, and a mere 16% of Cook County’s registered voters cast a ballot in Illinois’
Drinker Biddle & Reath LLP Second Vice President Maryam Ahmad Cook County State's Attorney's Office Secretary E. Lynn Grayson Nijman Franzetti LLP Treasurer Timothy S. Tomasik Tomasik Kotin Kasserman LLC Executive Director Terrence M. Murphy Assistant Executive Director Elizabeth A. McMeen BOARD OF MANAGERS Jonathan B. Amarilio Alan R. Borlack Judge Thomas M. Durkin Sharon L. Eiseman Mark B. Epstein Nina Fain Hon. LaShonda A. Hunt Michael J. Kaufman Hon. Diane Joan Larsen Lori E. Lightfoot Kathryn Carso Liss Hon. Thomas R. Mulroy Matthew A. Passen
E ach incoming president charts a course of action for the new bar year. As I announced at the CBA Annual Meeting on June 21, my goal is to focus our members on Civics, Civility and Collegiality. My first column highlights Civics–the need for civics education, and programs to promote it. In a nutshell, civics education helps people understand how our government works. Without a basic understanding of civics, future generations of Americans will have no understanding of: (1) how our democracy and government work; (2) the meaning of the U.S. Constitution and Bill of Rights; (3) the true meaning of Lincoln’s phrase “government of the people, by the people and for the people;” and (4) every citizen’s duty to vote. Yet recent public surveys point to an appalling lack of basic knowledge and understanding about civics. Here are some startling statistics from a CNN survey: • One in three people (33%) cannot name a single right protected by the First Amendment • Only one in four people (25%) can
Brandon E. Peck Mary Robinson Federico M. Rodriguez John C. Sciaccotta Adam J. Sheppard Helene M. Snyder Greta G. Weathersby
Holland & Knight congratulates Chicago Executive Partner
Steven M. Elrod on being elected as 142nd President of the Chicago Bar Association. We recognize the important and necessary work the CBA performs and celebrate those who contribute to its continued success.
Holland & Knight is proud of Steve’s exemplary accomplishments in the law and in the community.
Chicago, IL | 312.263.3600
Copyright © 2018 Holland & Knight LLP All Rights Reserved
materials and assessment tools appropriate to each grade level. Attorney volunteers visit partner schools at least three times during the school year. CRFC’s Action Based Community Project (ABC Project) engages 4th-8th grade students in learning civics through participation. This innovative program teaches students to explore their commu- nity, identify research sources and write about a problemwith the goal of providing solutions through public policy options. Students can also design and implement a civics project and are encouraged to con- sider new public policy options. CRFC’s Equal Justice Under the Law project engages students in grades 9-12 and focuses on recently decided U.S. Supreme Court Cases. Students receive instruction to better understand the facts of the case, constitutional issues involved, the argu- ments, the legal and social impact of the Court’s decision. The CBA offers a variety of other civics- related tutor/mentor training programs including: “Lawyers Lend-A-Hand to Youth” (LAH), an affiliated organization; Restorative Justice Training in Chicago schools (Interfaith Committee); CBA/ Juvenile Court Mentoring program for at- risk juveniles on probation; and Legal Prep Charter Academies Mentoring Program in partnership with the YLS. On the national level, organizations such as I Civics and the Annenberg Public
2014 mid-term gubernatorial primary. Also troubling is the significant decline of voters who vote the judicial ballot. What’s being done to help? The Constitutional Rights Foundation Chicago (CRFC) has been working on civics training in our schools for more than 25 years. CRFC is a non-partisan organi- zation dedicated to providing law-related and civic education to elementary and high school students. I’ve been personally involved with CRFC for many years and was honored to serve as past chairman of the board of directors. CRFC’s “Edward J. Lewis II, Lawyers in the Classroom” project places attorney volunteers in grades 2-8 to help students better understand the U.S. Constitution and our federal and state court legal system. CRFC also encourages students to consider pursuing legal and law-related careers. Lawyers who volunteer with CRFC are provided special training to lead interactive classroom lessons. In addi- tion, CRFC gives teachers civics training Solo/Small Firm Resources The CBA has a free resource portal for solo small firmmembers. Access archived programs on firm marketing, start up tips, legal software demos, client development and more. Go to www. chicagobar.org or call 312/554-2070.
For more information about how you can help
address America’s civics crisis, contact Sally
Daly at CBA Headquarters, or the Constitutional
Rights Foundation Chicago at www.crfc.org or
Policy Center offer classroom projects similar to those offered by Chicago’s Constitutional Rights Foundation. The Annenberg Public Policy Center helped establish a civics renewal initiative with national organizations that include the Library of Congress, National Archives, National Constitutional Center, U.S. Courts, I Civics, National Endowment for the Humanities and others. In Chicago, the Federal Bar Association has a program at Legal Prep High School,; and the WITS (Working in the Schools) program engages large law firms and cor- porate law departments to partner with Chicago Public Schools. My hope is that the attorney members of The Chicago Bar Association will part- ner with one or more of these fine organi- zations and get out of their law offices and into the schools. We can all help students become responsible, participatory and justice-oriented members of society. The future of our democracy depends on it!
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CBAWelcomes New President
By Sally Daly Public Affairs Director M ore than 500 members, guests and dignitaries were on hand for the CBA’s 145th Annual Meet- ing welcoming a new president and new and returning officers and board members. CBA President Steven M. Elrod accepted the Lincoln Gavel of Leadership from out- going President Judge Thomas R. Mulroy at the June 21 Standard Club luncheon. CBA members greeted Elrod in both word and song at the final business meeting of the 2017-18 Bar Year.
H Ruiz, of Drinker Biddle & Reath LLP; Second Vice President Attorney Maryam Ahmad, Secretary E. Lynn Grayson, of Nijman Franzetti LLP, and Treasurer Timothy S. Tomasik of Tomasik Kotin Kasserman LLC.
Elrod, the Local Executive Partner at the Chicago office of Holland & Knight LLP, said his agenda for the 2018-19 Bar Year will focus on engaging CBA attorneys to give back by promoting civic education in schools. He will also work to foster new ways to promote civility and collegiality in the practice of law, and he sees the CBA’s extensive committee structure as an important tool to advance these initiatives. Elrod will be joined on the CBA’s Executive Committee by First Vice President Jesse
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MAY 8 MEMBER APPRECIATIONWEEK PROGRAM HIGHLIGHTS THE IMPACT OF DIVERSITY ON THE PROFESSION Real Talk: Important Voices, Important Stories
By Cliff Gately Editorial Board Member A CBA program on May 8 fea- tured five attorneys from differ- ent backgrounds who spoke with similar voices regarding the importance of diversity in the legal profession. Each of the speakers defied obstacles to become a lawyer, and each offered lessons of resil- ience, persistence, tolerance and inclusion. The speakers–Shymane Robinson, Daissy Dominguez, Lara Wagner, Daniel Hernan- dez and Tina Tran–have all been part of the CBF’s Justice Entrepreneurs Project (JEP)– an incubator for lawyers to start innovative, socially conscious law practices. Robinson was first to take the podium. She recounted her inauspicious introduc- tion to the legal system when, at age 10, her parents brought her to the murder trial of her 17-year-old cousin. Although too young to fully understand everything, and in spite of the graphic evidence that might have traumatized another child, from that time forward, Robinson wanted to be a lawyer. She talked about how life experi- ences make people unique and enable them to provide different perspectives. She asked the crowd to promise “that you will be open to individuals who are different from you and whose backgrounds are dif- ferent from yours.” She emphasized that just having diverse people “present” is not enough. “Diversity without inclusion lacks both purpose and impact,” Robinson said. “Inclusion is more important than ever,” she continued, “because there is no other time when we’ve had so much openness in our society in regard to race, ideas, sexual- ity and perspectives.” Dominguez also wanted to be a lawyer at a very young age, and she talked about some of the obstacles she faced. In high school, she was at the top of her class. During her junior year, she asked her AP
Panel participants includedCBF Justice Entrepreneurs ProjectmembersTinaTran, Daniel Hernandez, Lara Wagner, Daissy Dominguez, and Shymane Robinson. They provided insightful analysis and sharedpowerful stories about their journey tobecome innovative, socially conscious lawyers.
Political Science teacher for a college rec- ommendation letter. He declined, saying “I’m not wasting my time because you are never going to get into U of I.” Dominguez ultimately graduated from the University of Illinois and went on to John Marshall Law School. From that high school experi- ence, she learned never to “let anyone dic- tate to me or put me down.” After her first semester of law school, she realized that the retention rate for Latinos was a significant issue. She got involved in the Latino Law Student Association where she created an academic retention program to help her colleagues. The program she pioneered has now been running since 2011 and has had a dramatic effect on Latino retention rates. “We can’t increase diversity in the legal profession without diverse students graduating,” Dominguez said. Wagner talked about how women are
often “marginalized” in the legal profes- sion. “Despite the accomplishments of women, our colleagues sometimes assume we know less, lack experience and lack expertise.” She pointed to corroborating studies, such as a report that shows that female Supreme Court justices are inter- rupted more often than male justices by advocates and the other justices. She emphasized the need to be more cognizant of our behavior. “Think about what you say and what you do,” she said. “You might find that you actually do some of these things.” She stressed the importance of inclusion and soliciting others’ opinions. “All of us need to listen more to those around us,” she said. Hernandez’ parents came to America to escape communist Cuba. His dad, who drove a delivery truck, was his hero. Growing up, Hernandez didn’t want to be
a lawyer, he wanted to be a truck driver, but his dad wouldn’t have it. His dad’s advice was to find a job with air conditioning. Hernandez talked about growing up in Florida among affluence, and the chal- lenges of being gay. He was made fun of in school “a lot.” But the challenges that he faced shaped him as an individual and helped him to become a stronger advocate. The fact that he may act or talk differently, “doesn’t change the fact that I can be better than you,” Hernandez said. Now part of a two-partner firm, Hernandez talked about the difficulties of being in a small practice, and the mentoring he received through the JEP. He said that any additional represen- tation from minority groups is beneficial. “The idea of one more Latino lawyer in the profession is a good thing for the entire Latino community.” Tina Tran agreed that representation matters. “Maybe if I had that growing up, I wouldn’t have felt so isolated, deprecated and self-doubting” she said. Tran told the audi- ence that, “First, I am an attorney. Second, I’m Asian-American. Third, I am queer, and fourth, I am gender-queer.” She said her per- spective allows her to understand what it feels
like to be misunderstood on a daily basis. She originally went to law school to become a criminal defense attorney, but has found herself more effective at helping people as a bankruptcy attorney. Tran said that “repre- sentation” goes beyond the attorney/client relationship. “People deserve to have their voices lifted and their stories heard.” Although all five speakers came from different backgrounds, their presentations had a common thread. At one point or another, each of them was discouraged from becoming a lawyer. They all have faced bias in the workplace, sometime overt and sometimes unconscious. They all talked about diversity and inclusion. And they all talked about “diversity” not only from ethnic and sexual perspectives, but also from the perspective of being open to diverse ideas and non-traditional approaches to the practice of law. “I believe it is a requirement for companies to suc- ceed,” Robinson said. “We want to be included so much that if we aren’t included, we will use that thing called the internet to become entrepreneurs and give our great ideas, perspectives and experiences directly to the market.”
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THE 29TH ANNUAL HERMAN KOGAN MEDIA AWARDS LUNCHEON Scoops and Scopes
By Carolyn Amadon Editorial Board Member
I t’s a rare awards luncheon that features a celebration of top-shelf legal report- ing, a little-known connection between WGN and the Scopes “Monkey”Trial, and a generous slice of Chicago history–with Clarence Darrow as well. Yet all were in the mix at this year’s Herman Kogan Media Awards ceremony. The Award Chicago Bar Association President Judge Thomas R. Mulroy opened the event with a nod to Herman Kogan, an extraordinary journalist, literary critic, radio host and television executive who kept company with other Chicago greats, such as Studs Terkel, Mike Royko and Roger Ebert. Kogan was a great friend of the CBA; his book, The First Century, describes the CBA’s origins in the greater context of Chicago history. Kogan’s namesake award honors journalistic excellence in legal and public affairs reporting. Mark Kogan–son of Herman Kogan–joined the event as a family representative. Through this award, the CBA and the Kogan family support the important work of reporters and editors covering legal topics and encourage future journalists through student scholarships. The Kogan Awards Committee, chaired by Dennis Culloton, reviews news media coverage of legal issues; the legal system; and the work of lawyers, judges, govern- mental agencies and civic groups con- cerned with the administration of justice. Winners, whose work is scored on criteria including originality, impact thoroughness and courage, designate the journalism school, college or university to receive a named scholarship donation of $1,000. This year’s winners were selected from a deeply qualified field of entrants covering a broad range of Chicago-based stories with a legal connection.
Clarence Darrow (Part I) On a personal note, Judge Mulroy men- tioned his own connection to Chicago history: his uncle participated in a study group while attending the University of Chicago that included Nathan Leopold, one of the Leopold & Loeb “Trial of the Century” criminals defended by Clarence Darrow in 1925. The study group used a typewriter (a rarity at the time) that later figured into the ransom notes for the victim, Bobby Franks. The Keynote In an ideal pairing, legal reporting sur- faces stories of inequities that need to be righted–and lawyers work to right them. Or, as featured speaker Roe Conn stated, “the media has a responsibility for being right and true… We need the legal com- munity to be partners with us…to be a
beacon [showing that] truth and justice actually do count.” With journalism credentials span- ning more than two decades, Roe Conn contributes regularly to ABC 7’s Windy City Live and hosts the Roe Conn Show on WGN Radio. He was named as one of the 100 Most Influential Talk Show Hosts in America by Talkers Magazine and received the Radio and Records Industry Achievement Award for Best Local Talk Host in America. In 2010, Conn received the FBI Director’s Community Leadership Award, during the tenure of Direct Robert S. Mueller, III. Conn began his remarks by thanking the Kogan family, who “mean so much to the story of Chicago.” As a lifelong Chica- goan, Conn cited the many ways Chicago has been at the crossroads of communica- tions history: as a telephone network hub
for the nascent industry, a host city to early silent film studio Essanay, and as a pioneer in the new media technologies of the day. Clarence Darrow (Part II) In 1925, the same year as the Leopold & Loeb trial, Clarence Darrow again took up the role of defense attorney in a notorious case–the Scopes “Monkey Trial.” Newspa- per reporters from across the United States flocked to the Criminal Court of Tennessee in Dayton during the trial of high school science teacher John T. Scopes, accused of teaching evolution. But one enterprising WGN reporter from Chicago saw oppor- tunity. He was the first radio correspondent to broadcast live reports of “breaking news.” For the first time, radio listeners heard news straight from the scene. This “forever changed the way we perceive events,” Conn said–as he pulled from his briefcase the original WGN microphone used to give Chicagoans groundbreaking broadcast updates from the Tennessee courthouse. Although the luncheon celebrated the Kogan Award winners and the comple- mentary roles of the press and the law in safeguarding democracy, Conn had a few cautionary remarks. Lawyers and journal- ists need to “take the responsibility to be right and true,” and that the rise of the notion of “fake news [is] so dangerous to democracy.” In concluding the event, he urged, “We must strive…[so] that truth, justice and honor will win out in the end.”
KOGAN AWARD RECIPIENTS Print Features or Series: Frank Main, Dan Mihalopoulos and Mick Dumke, Chicago Sun-Times, “The Third Border,”which explored the complex and often surprising world that immigrants must navigate on their way to citizenship. Meritorious Award: Todd Lighty, David Heinzmann, Jason Grotto and Robert Goetz, Chicago Tribune, “Cook County’s Failed Bond Court,”described as a“revolving door for defendants who pose the greatest threat to public safety.” Print Legal Beat: Mick Dumke, Chicago Sun-Times, “Guilt by Association,” a Sun-Times Watchdog Special Report that contributed to the passing of a new law in Illinois that now protects parolees from being arrested solely for being seen with alleged gang members–“a fix to one of the worst abuses of criminal law in our state.” Meritorious Award: Professor Timothy P. O’Neill, The John Marshall Law School,“Posner’s New Book Gives Us All Pause to Think About Fellow Humans,”which emphasized the importance of empathy in the practice of law. Online: David Thomas and Jennifer Jenkins, Chicago Lawyer Magazine, “Stung: A Chicago Lawyer Report,”a nine-month investigation that looked into the Chicago Police Department’s use of stingrays, high-end surveillance equipment designed for the U.S. military, but used to surveille suspects’ cell- phones in low-end criminal investigations. Meritorious Award: Brett Chase andMadison Hopkins, Better Government Association, “Power Struggle,” featuring an investigation of governmental regulation in the nuclear power industry and blurred lines between the federal agency overseeing nuclear power and the companies they regulate. Diana Novak Jones, Ed Beeson, Jeremy Barker and Jocelyn Allison, LAW 360,“PaydayWars: Can‘Professional Objectors’Be Stopped?”This six-month investigative report focused on the use of “serial objectors”in class action-heavy Chicago courts. Broadcast: Mark Suppelsa, Marsha Bartel and Kevin Doellmann,WGN-TV,“FromGitmo to Gold Coast: Questions About an Interrogator’s Role,”which examined the story of amanwho claims hewas framed and wrongfully convicted in a decades-old murder on Chicago’s Gold Coast, and the Chicago police detective at the heart of the investigation . Meritorious Award: Larry Yellen, MikeWojcik and Sean Gib- bons,WFLD-TV,“Pinstripe Patronage in the State’s Attorney’s Office,”which revealed that the supervisor of the State’s Attorney’s Civil Action Bureau had steered nearly a half-million dollars in legal work to the law firm where he previously worked.
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FUTURE OF NAFTA DISCUSSED AT JOINT CBA/MONTREAL BAR SYMPOSIUM Bar Leaders Talk Trade
By Lawrence Friedman A meeting between CBA President Judge Thomas R. Mulroy and Michael Synnott, President of the Bar of Montreal, at the 2017 World Conference of Bar Leaders resulted in the recent joint symposium on U.S.-Canada trade relations, the future of NAFTA, and how to address the current friction in our bilateral relationship. The program, called “Comprehensive Trade Agreements and the Modernized NAFTA,” was held at the CBA June 14 and 15, 2018. The presenta- tions were recorded and are available to be viewed at www.chicagobar.org/cle. The 1994 North American Free Trade Agreement was America’s first modern effort to liberalize trade outside of the mul- tilateral General Agreement on Tariffs and Trade (now theWTO). Once implemented by the U.S., Canada, and Mexico, NAFTA covers traditional trade topics such as tariff reductions, rules of origin, and customs formalities. It also covers international aspects of intellectual property law, govern- ment procurement, professional immigra- tion, and foreign investment protections. In addition, it includes two side agreements covering labor and the environment. NAFTA, which now covers approxi- mately $1 trillion in annual trade, has been in the news much of late. During the last presidential campaign, now-President Trump suggested that he may withdraw the United States from the Agreement. So far, that has not happened but the three coun- tries have not yet negotiated an updated agreement. Complicating matters, that negotiation is being done in an unusually volatile environment. Since his election, President Trump has used the formerly obscure Section 232 of the Trade Expansion Act of 1962 to impose 25% tariffs on steel and 10% tariffs on aluminum entering the United States. These tariffs apply globally, though
overview of public opinion of international trade presented by Dina Smeltz, Senior Fellow at the Chicago Council on Global Affairs. That was followed by a discussion of immigration, labor, and environmental aspects of the NAFTA. CBA Secretary Lynn Grayson discussed how the NAFTA side agreement, formally entitled the North American Agreement on Environmental Cooperation, has proved to have little envi- ronmental utility while the NAFTA rules protecting foreign investment have become powerful tools for industry to challenge unfair governmental measures directed at protecting the environment. The second panel asked the general question of how NAFTA should change to reflect the modern environment. When NAFTA was implemented, there was essentially no e-commerce and no digital trade. This session focused on, among other topics, challenges facing the pharmaceuti- cal industry’s efforts to harmonize patent durations and concerns about data localiza- tion requirements. The next group of speakers addressed the controversial NAFTA Chapter 11 pro- visions covering the settlement of disputes
various temporary exceptions were granted. Statutorily, these tariffs are directed at pre- serving U.S. national security. The fact that they are being applied to Canada, Mexico and other allies has, therefore, caused some controversy. Canada and Mexico have announced their intentions to impose retaliatory duties on American exports. The president has also announced his intention to impose 25% duties on a broad range of products from China under Sec- tion 301 of the Trade Act of 1974. These duties are intended to punish China for unfair practices relating to U.S. intellectual property rights including lax enforcement and forced technology transfers. China has promised to retaliate. Add to that a contentious G7 meeting in which the president erroneously accused Canada of burning down theWhite House during the War of 1812. Program Details This was, therefore, a perfect time for the Bars of both Chicago and Montreal to come together for two days to discuss the legal aspects of our trading relationship. The program started with a data-driven
CBA Market Insider CBA Market Insider e-Newsletter highlights the latest Chicago Bar Association marketing and sponsorship offerings, along with the recent successes of the businesses and law firms that support our legal community. Get your copy at http://eepurl.com/dga-5f between foreign investors and states. The United States has expressed an interest in dropping this Chapter from the Agreement or in making it optional for members. The speakers discussed the actual practice of these arbitrations, how they compare to other bilateral investment treaties, and the options for dispute settlement in the absence of NAFTA (or in the event of a NAFTA without a Chapter 11). The speakers also discussed the confluence of arguments against Chapter 11 from the political left (“No special rights for corpo- rations!”) and from the right (“Don’t give away U.S. sovereignty!”). The last main panel covered issues relat- ing to the nuts and bolts of how NAFTA affects daily business operations. Kevin Gray, Acting Deputy of the Trade Law Bureau of the Government of Canada, compared the NAFTA rules on govern- ment procurement to rules under theWTO and U.S. domestic law. Other speakers discussed the use of binational arbitration to resolve disputes over the administration of domestic antidumping and countervail- ing duty law. Finally, the panel dove into the current controversy over what level of North American and U.S.-specific con- tent should be required for a Mexican- or Canadian-made automobile to qualify for duty-free entry to the U.S. The two days ended with a look back at the impact of NAFTA and an effort to look forward. The closing panel emphasized the importance of NAFTA to the integrated North American economy. However, the panel was careful to focus attention on the need for all three governments to provide meaningful support to the workers and others who are negatively impacted by changes in the economy brought on by globalization.
The Chicago Bar Association
Larger Impact While the content of this program was excellent, the larger impact may be the renewed relationship between the two Bars and their respective practitioners. On that front, the group met with Judge Mulroy who lead a lively lunch discussion on the future of the practice of law in both cities. On the second day, Peter MacKay, a partner in the Toronto office of Baker & McKenzie and the former Minister of Justice and Attorney General of Canada, spoke on the need for our two countries to reaffirm our national commitments to friendship and cooperation. As historical examples, he used the experience of the people of Gander, Newfoundland who hosted and cared for nearly 7,000 mostly American travelers stranded in the wake of the September 11 attack on New York and the response of American volunteers rush- ing to Halifax in 1917 after a munitions ship exploded in the harbor destroying much of the city, killing and injuring more than 10,000 people. Reminded of both the role of lawyers and of individual acts in the international arena, many of the participants expressed an interest in pursuing those goals at another similar meeting to be held in Montreal.
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ILLINOIS SUPREME COURT COMMISSION ON PROFESSIONALISM LOOKS AT THE FUTURE OF LEGAL SERVICES Data, Delivery, and Diversity By John Levin Editorial Board Member O n May 2, the Illinois Supreme Court Commission on Profes- sionalism held an all day program CBA Record Editorial Board Needs Members!
impact the provision of legal services to the underserved community. To the extent that technology reduces the time a lawyer needs to spend on a matter, or provides legal service directly to the user, the cost of legal services becomes more affordable to more people. Of interest to the individual lawyer was a discussion on whether Illinois Rules of Professional Conduct 1.1 and 1.3 require a lawyer to use advanced technology when providing services to clients, and whether the use of artificial intelligence might be considered the unauthorized practice of law. Neither question had a definitive answer. There were also presentations on open- ing the practice of law to more diverse groups–particularly when distinctions are based on sex, race and sexual preference. Suggested remedies focused on people taking individual action–mentoring, giving constructive feedback, and, in general, giving people the benefit of the doubt.
in Chicago entitled: The Future is Now: Legal Services 2.018. This was the third annual day-long program presented by the Commission on Professionalism. As stated by Jayne Reardon, Executive Director of the Commission, the main themes of the programwere “data, delivery and diversity.” The presenters spoke on the major contemporary issues of: (i) the impact of technology on the practice of law, (ii) access to justice by the underserved community, and (iii) increasing diversity within the legal profession. The roster of twelve speakers was led-off by Illinois Supreme Court Chief Justice Lloyd A. Karmeier who greeted the sold- out audience and discussed developments in Illinois regarding improving access to justice, including the work of the Supreme Court Commission on Access to Justice. Other speakers discussed programs nation- ally and in Illinois that also seek solutions to this problem. Many of the remaining speakers focused on issues of technology and the law, especially the impact of big data and use of artificial intelligence. The efficien- cies generated by technology directly Th i s wo r t hwh i l e p r o g r am was approved for 5 hours of professional responsibility CLE credit in Illinois. The Commission hopes to hold a similar program next year.
The Editorial Board of The Chicago Bar Associa- tion's flagship publication, The CBA Record, is currently looking for CBA members with excel- lent writing skills to serve as volunteer members of its Editiorial Board. The board meets monthly throughout the bar year, and members are expected to contribute to the Record by writing features, columns, and book reviews; editing articles submitted for publication; taking on special projects, and further duties as assigned. Attorneys with dual backgrounds in law and journalism are especially useful. If interested, please contact CBA Publications Director David M. Beam (with three writing samples) at email@example.com. For more information, contact Beam at 312/554-2042.
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