ISBA BS AGAIN THE APPEARANCE IS NOT ENOUGH MONIES FOR THEM TO STEAL THEN
September 18, 2013 § Leave a comment
By Pamela J. Kuzniar
Part of a Section Council’s work includes re- view of state legislation important to the profession and the public. The Legisla- tive Affairs Department sends proposed bills to the appropriate ISBA section or committee for recommendations to the Legislative Commit- tee. The Family Law Section Council analyzed the complete review and overhaul of both the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) [HB 1452] and the Parentage Act (“PA”) [HB 6192] as proposed by the Illinois Family Law Study Committee. After review, our section council’s collective position was that we did not approve HB 1452 as written. Thereafter, each of our subcommittees reviewed specific
Unbundling family law
By Lisa M. Nyuli
With all the talk about limited scope rep- resentation, I recently took on a case, or should I say, a PORTION of a case, to try to help a client.
Why would I do such a thing? First, the client had no money. Second, the client really did have a fairly succinct need and issue. Third, as I talked to her, I found myself giving her the outline of what she needed to do, saw the panic on her face, and thought, “Hey, why don’t I just help her with this one task?”.
The Illinois Rules of Professional Conduct, RPC 1.2(c) provide: “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives in- formed consent.”
Limited scope representation, or “unbun- dling” has been around for years, and continues
sections of proposed HB 1452. We provided Jim Covington, the Director of the ISBA Legislative Affairs Department, with the subcommittee’s comments and analysis. Jim requested “volun- teers” assist him in his next steps. Assuming Jim wanted competent individuals capable of pithy articulate legal analysis and sage drafting, as chair I appointed Rory Weiler of St. Charles, Wil- liam Scott Jr. of Lisle and Morris Lane Harvey of Mt. Vernon to work with Jim at his direction as needed.
Please be aware that the bills will most likely move during the fall veto session. Now would
Continued on page 3
to be all the rage. As Helen Gunnarsson observed in the October, 2010, Illinois Bar Journal, the rea- sons that this type of representation is such a hot topic are, “First, courts are seeing more self-rep- resented litigants, requiring them to expend ad- ditional resources in assisting those individuals. Second, lawyers are seeing their business dimin- ish as fewer people are able to afford full repre- sentation. Third, legal services organizations are finding themselves overwhelmed by demand while, at the same time, their funding is being cut. Finally, many consumers of legal services are resorting to the Internet for legal education and advice, where they are finding information that may not be accurate and/or may not be suit- able for their needs. Without consulting a lawyer, those consumers may not be able to recognize
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Family law | September 2013, Vol. 57, No. 2 Chair’s column
Continued from page 1
be the time to review the bills and form your own opinion. If you do have an opinion, the only place to voice it would be through your legislative representative.
In that light, I would like to personally comment on HB 1452. The proposed bill (un- der section 750 ILCS 5/601.2) defines stand- ing to provide that equitable parents may seek an “allocation of parenting time.” If you routinely practice family law, you are familiar with the Illinois Supreme Court’s decision in Wickham v. Byrne and the U.S. Supreme Court’s decision in Troxel v. Granville. As you know, both cases hold that the right of a parent to make decisions concerning their children is a fundamental right. At this point as you read along you are probably thinking Kuzniar is going to state that the statute as written is not constitutional. Nope, not go- ing to say it, you are lawyers you decide. I will note that, although HB 1452 expands the definition of parent, and changes parenting allocation—HB 1452 did not modify the ex- isting child support section. I am not saying that they punted; rather the proponents left the redrafting of the child support section to the Child Support Advisory Committee. The proponents clearly missed an opportunity to draft the most kinder-centric statute in the nation. How you may ask? Think about it and live in my head for a moment. (It is a place I am most comfortable in and it is a great deal more fun than the real world.) And so begins your foray into my world. Consider the fol- lowing: If you increase the opportunity for third-parties to contest parents for custody and demand parenting time, why not give them the pleasure of paying support as well? If our guidelines remain in effect and HB 1452 is adopted as drafted then I envision a custody case where the child care providers, long-term-live-in-lovers, step-parents, live-in grandparents, and significant others all par- ticipate in contested litigation. (Note—We will need more counsel tables.) If guidelines are in place 20% of the net income of five parents will provide the child opportunities that were not affordable in the past. Perhaps the child could be cross covered on every- one’s insurance as well. So, if a condition to equitable parenting is equitable support, then maybe it will work itself out, as the only individuals who will participate in litigation
would be those who want to take care of the child including providing monetary support- whether or not they can afford it. You know kind of like a parent.
I would also like to give you a heads-up on two creative approaches to CLE that will be presented in October one on trial practice and in November on settlement.
On October 10th and 11th we will pres- ent a Child Custody Trial, in Galena, Illinois. William Scott and Kelli Gordon will represent the father. Morris Lane Harvey and Rory Wei- ler will represent the mother. No one knows how the case will turn out, not even me. The trial judge will be the Hon. Arnold Blackman. This may be a CLE but the participants are taking it seriously and truly want to win. Al- though we all know that no one really wins in a custody case, in this case we do know the real winners will be the attendees. The Guardian Ad Litem and 604(b) have each tendered their reports, and based upon the reports it will be an uphill battle for one par- ent. The cast includes attorneys, and mental health professionals playing clients and ex- perts. Mother’s counsel has filed a motion in limine to bar the Guardian Ad Litem. During the CLE we will discuss the testimony after each witness, and judges from different counties will comment on the Court’s rul- ing and the handling of the witness. More importantly, the Court will rule immediately after the close of proofs. There will be no de- lay and nothing will be taken under advise- ment.
On November 14, 2013 we will present “Settle-It.” Although the majority of cases settle, too many settle on the eve of trial that could have settled long before. Perhaps an impediment to settlement is the inability of counsel to value the case. This CLE will be taught by valuation experts, attorneys, an arbitration panel and judicial panel. Using valuation reports as a fact pattern the pan- elists will analyze settlement opportunities regarding asset division and maintenance when’ the major asset is a business (includ- ing a small corporation, real estate devel- opment company, law practice, medical practice and dental practice) and when the major asset is executive compensation and benefits. ■
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Matthew A. Kirsh Robin R. Miller Rory T. Weiler
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Family law section council
Pamela J. Kuzniar, Chair Kelli E. Gordon, Vice Chair Matthew A. Kirsh, Secretary William J. Scott, Ex-Officio
Margaret A. Bennett Jacalyn Birnbaum Hon. Arnold F. Blockman Chris W. Bohlen Dion U. Davi
Hon. Grace G. Dickler Cecilia H. Griffin Morris L. Harvey David H. Hopkins Heather M. Hurst Michele M. Jochner Sally K. Kolb David H. Levy Rebecca M. Leynaud Marilyn F. Longwell Hon. Mark J. Lopez Hon. Pamela E. Loza
Laura L. Malinowski Anne M. Martinkus Hon. Timothy J. McJoynt Hon. Brian R. McKillip Sharon R. Mulyk Treva H. O’Neill Angela E. Peters Arlette G. Porter Julia A. Pucci
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Hon. Jeanne M. Reynolds Curtis B. Ross Jennifer A. Shaw Letitia Spunar-Sheats Tamika R. Walker Richard A. Wilson Richard W. Zuckerman
Mary M. Grant, Staff Liaison
Hon. Celia G. Gamrath, Co-Board-Liaison Lisa M. Nyuli, Co-Board Liaison
Paul A. Osborn, CLE Committee Liaison Pamela J. Kuzniar, CLE Coordinator
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September 2013, Vol. 57, No. 2 | Family Law
Unbundling family law
Continued from page 1
the unsuitability of the information they ob- tain and may not realize what alternatives exist for their unique matters.” (Ill.Bar. Journal, Vol. 98, No.10, P.512 (Oct., 2010)).
The most visible example of unbundling in the family law arena is collaborative law, which is when a lawyer agrees to provide all the necessary legal services incident to the goal of settlement, but excludes services for contested litigation. Other examples are ghostwriting; drafting pleadings, briefs, dec- larations or orders; reviewing documents; doing legal research; advising on court pro- cedures; organizing discovery materials and preparing exhibits; and drafting contracts and agreements. Limited scope representa- tion of debtors has been a staple in bank- ruptcy proceedings for years.
Unbundling services in a transactional setting seems easy and even logical, but in a litigation setting, may not be as easy to implement. In 2010, the ISBA, along with the Chicago Bar Association and the Illinois Judges Association, formed a joint task force which issued a Final Report with Findings, on May 19, 2011, addressing its findings and rec- ommendations regarding limited scope rep- resentation. The entire report may be viewed on the ISBA Web site at <http://www.isba. org/sites/default/files/committees/limited- scopelegalrepresentation/limitedscopeleg- alrepfinalreport.pdf>.
As a result of these recommendations, on July 1, 2013, Supreme Court Rules 11 and 13 were amended to set out the requirements for unbundled representation.
(6) Limited Scope Appearance. An attorney may make a limited scope appearance on behalf of a party in a civil proceeding pursuant to Rule of Professional Conduct 1.2(c) when the attorney has entered into a written agreement with that party to provide limited scope rep- resentation. The attorney shall file a Notice of Limited Scope Appear- ance in the form attached to this rule, identifying each aspect of the proceeding to which the limited scope appearance pertains.
An attorney may file a Notice of Limited Scope Appearance more than once in a case. An attorney must file a new Notice of Limited Scope Appearance before any ad- ditional aspect of the proceeding in which the attorney intends to ap- pear. A party shall not be required to pay more than one appearance fee in a case.
(7) Withdrawal Following Comple- tion of Limited Scope Represen- tation . Upon completing the rep- resentation specified in the Notice of Limited Scope Appearance filed pursuant to paragraph (6), the at- torney shall withdraw by oral mo- tion or written notice as provided in parts (i)–(ii) of this paragraph. A withdrawal for any reason other than completion of the representa- tion shall be requested by motion under paragraphs (c)(2) and (c)(3).
(i) If the attorney completes the representation at or before a court hearing attended by the party the attorney represents, the attorney may make an oral motion for withdrawal without prior notice to the party the at- torney represents or to other parties. The court must grant the motion unless the party objects on the ground that the attorney has not completed the representation. The order grant- ing the withdrawal may require the attorney to give written no-
tice of the order to parties who were neither present nor rep- resented at the hearing. If the party objects that the attorney has not completed the repre- sentation, the court must hold an evidentiary hearing on the objection, either immediately or on a specified later date. After hearing the evidence, the court must grant the motion to with- draw unless the court expressly finds that the attorney has not completed the representation specified in the Notice of Lim- ited Scope Appearance.
(ii) An attorney also may withdraw by filing a Notice of Withdrawal of Limited Scope Appearance in the form attached to this rule. The attorney must serve the Notice on the party the attorney represents and must also serve it on other counsel of record and other parties not represented by counsel, unless the court by order excuses service on other counsel and other parties. The attorney must also serve the Notice on the judge then pre- siding over the case. The attor- ney must file proof of service in compliance with this paragraph. Within 21 days after the service of the Notice, the party may file an Objection to Withdrawal of Limited Scope Appearance in the form attached to this rule. The party must serve the Objec- tion on the attorney and must also serve it on other counsel of record and other parties not represented by counsel unless the court by order excuses ser- vice on other counsel and other parties. If no timely Objection is filed, the attorney’s limited scope appearance automati- cally terminates, without entry of a court order when the 21– day period expires. If a timely Objection is filed, however, the attorney must notice a hearing
Supreme Court Rule 11 was modified add the following language:
(e) Limited Scope Appearance . After an attorney files a Notice of Limited Scope Appearance in accordance with Rule 13(c)(6), service of all documents shall be made on both the attorney and the party repre- sented on a limited scope basis until: (1) the court enters an order allowing the attorney to withdraw under Rule 13(c) or (2) the attor- ney’s representation automatically terminates under Rule 13(c)(7)(ii). (Effective July 1, 2013)
Supreme Court Rule 13 was modified add the following language:
Family law | September 2013, Vol. 57, No. 2 on the Objection. If the ground
for the Objection is that the at- torney has not completed the representation specified in the Notice of Limited Scope Ap- pearance, the court must hold an evidentiary hearing. After the requisite hearing, the court must enter an order allowing the attorney to withdraw unless the court expressly finds that the attorney has not completed the representation specified in the Notice of Limited Scope Ap- pearance. Effective July 1, 2013.
Supreme Court Rule 13 also provides a form Notice of Limited Scope Appearance and a form Limited Scope Appearance.
So back to my case. The client needed a motion to clarify a written decision by the court. There were three main “problems” with the written decision that I believed war- ranted another look by the Court. So, first the client and I agreed that my sole purpose would be to represent her to draft and argue this motion. We agreed on a price. She paid
the retainer, and I prepared the motion and filed my appearance. And then, all hell broke loose! (I do have to admit that I did not use the Forms referenced in Supreme Court Rule 13, as this was pre-enactment, and I didn’t anticipate what followed.)
Opposing counsel objected to my ap- pearance and filed a motion to strike both my appearance, and my pleadings. The judge wanted a written response from me as to the motion to strike. So on the first court date, the matter was continued. The client was in tears, and now I was already in for more work than I had bargained for. I prepared written responses, and was allowed to stay in the case. We then held a hearing on the motions. They were ruled on, which completed my task for the client. Subsequently, I did file my motion to withdraw, and opposing counsel objected to my withdrawal. Opposing coun- sel accused me of “pulling a fast one” on the court by getting in the case and then getting back out. My client was not objecting, having understood and agreed to the limited tasks. Finally, after a contested hearing, I was given leave to withdraw.
So, as of now, I’m not a fan of unbundling in a divorce case. I certainly lost money on the deal. Yet, I see more and more articles about the merits of unbundling.
Plus, with the enactment of the new Rule provisions, this really should be easier, and encouraged. The entire Fall, 2012, issue of the Family Advocate, published by the ABA Sec- tion of Family Law addresses unbundling of legal services in the family law context. (Fam. Law Advocate, Fall, 2012, Vol. 35, No. 2). This leads me to believe that maybe we just need to educate ourselves, our clients, and our courts on this concept. The Supreme Court Rule 13 Forms should be reviewed and used (that’s my lesson!). While I did have a written agreement with my client, perhaps a model agreement would also be helpful.
Limited scope representation is sure to be with us as the practice of law continues to change. Family law practitioners need to be proactive in defining what that means for us, and for our clients, so that we can provide high quality services to our clients, regard- less of the task. ■
Child support income withholding notices not just an afterthought
By Jennifer A. Shaw, Managing Partner, and Barry T. Underwood, Associate Attorney, The Shaw Law Group, P.C., Edwardsville, IL
For many practitioners, sending an In- come Withholding Notice/Order (IWO) after obtaining a child support order is nothing more than a perfunctory step in closing a file. Secretaries or legal assistants often prepare the documents from forms that have been in use for many years. Other times, lawyers rely upon the forms provided by their local clerks’ offices. Within the last eighteen months, significant changes have been made to both Federal and State laws governing IWOs. These changes require implementation of new procedures and the creation of new forms. Failure to recognize the latest protocols could result in com- plaints to the ARDC or charges of malprac- tice as the penalties attributable to employ- ers who fail to withhold are substantial.
42 USC §666(b)(6)(A)(ii) requires all IWOs to comport with the standard form as pre- scribed by the Secretary of the U.S. Depart- ment of Health and Human Services. A new standard form became effective on May 31, 2012. The form, OMB 0970-0154, can be
downloaded at <www.acf.hhs.gov/sites/de- fault/files/ocse/omb_0970_0154.pdf>.
Pursuant to Federal Law, an IWO must be rejected and returned to the sender in the following instances:
1. The form is not standard on its face;
2. The IWO instructs the employer/with- holder to send payments to any entity other than a State Disbursement Unit, un-
less the notice was issued before 1994;
3. The form does not contain the necessary information for the employer to comply
with the withholding;
4. The form is altered or contains invalid in-
5. The amount to withhold is not a dollar
6. The sender has not used the OMB-ap-
proved form (referenced above);
7. A copy of the underlying support order is not included and the IWO is promulgated by someone other than a state or tribal
support agency or a court.
Illinois’ Income Withholding for Support Act, located at 750 ILCS 28/1 et seq., has also undergone significant changes over the past several years. Reviewing the statute as a whole is strongly recommended, particularly if you prosecute failure to withhold matters.
Although not a change in the law, savvy practitioners note that 750 ILCS 28/20 man- dates all child support orders entered after July 1, 1997 to:
1. Require an IWO to be prepared and served either by the obligee or public of- fice unless a written agreement is reached and signed by both parties. The agree- ment must provide for an alternative ar- rangement. Such an alternative arrange- ment must be approved by the Court and provide a means for serving an IWO if the obligor becomes delinquent in support.
2. Contain a dollar amount for current sup- port. If an arrearage has accrued, the pay- ments on the delinquency shall be paid at a rate no less than 20% of the current
support obligation. Percentage orders are
not enforceable through an IWO.
3. Include the obligor’s Social Security Num- ber. For a non-citizen, the order must in- clude the alien registration number, pass- port number and home country’s social
security or national health number.
750 ILCS 28/20 also enumerates the state requirements for an effective IWO. Under Il- linois Law an IWO shall:
- Be in the standard format prescribed by the Federal Department of Health and Human Services;
- State the date of entry of the order for support upon which the IWO is based;
- Direct the payor to withhold the dollar
amount for current support;
- Direct the payor to withhold the arrears
as delineated in the underlying support
- Direct the payor, labor union or trade
union to enroll children in health insur- ance plans as provided in the underlying order;
- State the amount of the Payor Income Withholding Fee, if applicable;
- State that the amount withheld from the obligor cannot exceed the maximum amount permitted under the Federal Consumer Credit Protection Act;
- In bold face type, the size of which equals the largest type on the notice, state the duties of the payor and the fines and pen- alties for failure to withhold and pay over income and for discharging, disciplining, refusing to hire, or otherwise penalizing the obligator because of the duty to with- hold and pay over income;
- State the rights, remedies and duties of the obligor;
10.Include the Social Security Number of the obligor;
11.Direct any payor to pay over any amounts withheld to the State Disbursement Unit.
The most substantial addition to Illinois’ IWO form requirements is enumerated in Section 8. All IWOs must clearly identify the duties, penalties and fines Illinois imposes on payors. The language regarding the typeface, font and size is new to Illinois and distinguishable from Federal requirements. Notably, the requirements for an Illinois IWO are mandatory and strict compliance with the terms is required in order for them to be enforceable. See Jennifer Schultz v. Perfor- mance Lighting, Inc., 2013 IL App (2d), 120405
(Ill. App., 2013) and In re Marriage of Chen, 820 N.E.2d 1136, 2-03-0824 (Ill, App., 1996).
An attorney’s failure to properly format and serve an IWO can result in significant implications. Deficiencies in an IWO compro- mise an obligee’s ability to successfully sue for damages stemming from an employer’s failure to properly withhold and/or pay child support. In The Marriage of Chen, the Court held that an obligee could not enforce the $100/day penalty for failure to withhold support when the IWO failed to specifically delineate those penalties within the four cor- ners of the document. In re Marriage of Chen, 820 N.E.2d 1136, 2-03-0824 (Ill, App., 1996). Moreover, in Schultz v. Performance Lighting, the obligee was estopped from enforcing the same penalty for failure to include the obligor’s Social Security Number on the IWO. Schultz v. Performance Lighting, 2013 IL App (2d), 120405 (Ill. App., 2013).
In order to ensure that your IWO complies with Federal and State Law, modify your form to comport with OMB 0970-0154 and always attach a copy of the underlying support or- der. Serve the IWO by certified mail and file a copy of the return receipt with the Clerk of the Court. Whenever possible, also serve an additional copy of the IWO by facsimile or e- mail.
Best practices dictate that a separate Uni- form Child Support Order be entered, par- ticularly when the underlying orders address issues other than support. Remember, your client’s custodial schedule can be sensitive information. Tread lightly upon the infor- mation you disclose about minor children’s
September 2013, Vol. 57, No. 2 | Family Law schedules and activities.
Changes to Illinois Supreme Court Rule 138 will soon prohibit the use of Social Secu- rity Numbers in pleadings and orders. Thus, in order to satisfy both Federal and State Law, a Notice of Confidential Information Within a Court Filing must be filed with the IWO. In addition, as the Illinois requirements for a proper IWO exceed those prescribed by Fed- eral Law, in order to satisfy both, attach an Illi- nois Supplement to the Federally mandated form. The supplement should include all the requirements delineated in 750 ILCS 28/20, in the appropriate type and size.
If an IWO is returned, contact the employ- er to determine the issues they have with the document. After making the changes, serve the new IWO by facsimile/email and by certi- fied mail. This will not only allow withholding to begin more quickly, but will preserve your client’s right to sue if the employer fails to properly withhold support.
Maintain the original return of service in your file. Do not destroy the withholding notice or the return of service until all arrear- ages have been paid and the children are no longer entitled to receive support.
Preparation and service of a proper IWO should never be an afterthought. Given the strict enforcement of Federal and State re- quirements, neither you nor your client can afford to be anything but precise. ■ __________