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Joseph R. Marconi

Liability Minute

The ISBA Mutual Liability Minute is a series of informative alerts on emerging legal and practice issues which could affect the outcomes of your cases and, therefore, your bottom line. The articles, by ISBA Mutual General Counsel Joseph R. Marconi of Johnson & Bell, touch on changes in statutes and procedural rules, new case law developments, and evolving ethical obligations.

The GST Trust Tax Trap

The issues faced by trust and estate lawyers sometimes include complex tax analysis. One of those issues arises when an irrevocable trust skips a generation with trust assets going directly to grandchildren.  (read more)

August 19, 2016 by Joseph R. Marconi

Know Your Adversary: Rules for Claims Against Federally Funded Health Centers

The 2-year statute of limitations applies to medical malpractice claims against federally funded healthcare facilities and the medical staffs they employ.  (read more)

August 26, 2015 by Joseph R. Marconi

Protection Reflection: The Supreme Court Rules Allow Partners To Limit Their Liability

Many lawyers are still unaware that effective July 1, 2003, our Supreme Court promulgated rules which conferred protection from professional liability in certain circumstances. Illinois Supreme Court Rules 721 and 722 allow lawyers in Illinois to protect themselves against vicarious liability for legal malpractice committed by “other” lawyers at their firm provided that the law firm (1) maintains one of the business forms enumerated by Rule 721 and (2) maintains the minimum amount of malpractice insurance or other proof of financial responsibility required by Rule 722.  (read more)

April 29, 2015 by Joseph R. Marconi

Record Retention Obligations: Acing The Audit

Lawyers have traditionally created a great deal of paper. The amount of information kept on paper has been reduced as lawyers have been pulled into the electronic era by their more advanced clients. In this new era, the prevalence and sheer amount of electronic data created and received by lawyers can be absolutely overwhelming.  (read more)

January 14, 2015 by Joseph R. Marconi

Don’t Let Cybersecurity Breaches Lead to Legal Malpractice: The Fax Is Back

E-mail and wire fraud risks increase in a cloud-based world. Data management safeguards can prevent possible legal malpractice from cyber-security breaches.  (read more)

September 21, 2014 by Joseph R. Marconi

Debt Collectors Beware: Venue Provision of FDCPA Reinterpreted

Recent federal court decision reinterprets the Fair Debt Collection Practices Act (FDCPA) and may create venue defense for current or future debtor defendants in debt collection suits.  (read more)

September 10, 2014 by Joseph R. Marconi

Not Only Shareholders Get Pierced

How many lawyers assist a client in forming a corporation, but merely assist in filing the annual reports and do nothing else? Failure to advise of the risk associated with this minimal approach may now more likely result in veil-piercing to reach the client for individual liability.  (read more)

July 01, 2014 by Joseph R. Marconi

Illinois’ Limited Liability is Unlimited

In a case of first impression, a First District Panel of the Appellate Court of Illinois issued an opinion confirming immunity from liability arising from fraud under the Illinois Limited Liability Company Act (“LLC Act”) (805 ILCS 180/10-10). Careful lawyers must consider the Illinois law before forming an LLC in another state. In Dass v. Yale, 2013 IL App (1st) 122520 (Ill. App. Ct. 1st Dist. 2013), the Court firmly established that a member’s personal immunity for “debts, obligations, and liabilities … whether arising in contract, tort, or otherwise” includes immunity for acts of fraud committed while acting as a member of the LLC.  (read more)

April 07, 2014 by Joseph R. Marconi

’Til Death Do Us Impart

Estate planning often involves multiple professionals who must exchange confidential information regarding their clients’ affairs. The Illinois Court of Appeals provides an insightful opinion regarding when such privileges terminate, who can waive them after the client’s death, and what actions, if any, would put confidential information “at issue” and thus make discoverable.  (read more)

December 11, 2013 by Joseph R. Marconi

The Contractual Arbitration Limitation Period for Uninsured Motorist Insurance Policies

Even neophyte attorneys understand that their clients’ actions can be barred if they miss a statutory limitations period. However, experienced attorneys may forget that when handling claims against insurance companies under their clients’ uninsured or underinsured motorist coverage a contractual two-year limitation2 will trump any longer statutory period. Failure to adhere to the two-year limitation period will terminate a claim as surely as a blown statute.  (read more)

April 18, 2013 by Joseph R. Marconi

The Incredible Shrinking Limitations Period

Claims involving special defendants, such as municipalities, mass transit companies, school and port districts, are subject to a special one year limitations period. Certain claimants, including policemen, firemen, and guardsmen, must make claims for death benefits within a year of death. In some cases, a special notice requirement is also imposed, as early as six months from the triggering event. This article reviews the main instances of these special limitations periods.  (read more)

January 04, 2013 by Joseph R. Marconi

Court Rejects the Fiduciary Duty Exception

Two recent cases out of the First District of the Appellate Court in Illinois have bolstered the right of attorneys to assert the attorney client and work product privileges to withhold documents in the context of a malpractice claim against them. In Garvey v. Seyfarth Shaw LLP, 2012 Ill. App. LEXIS 132; 966 N.E. 2d 523 (1st Dist. Mar. 1, 2012) and MDA City Apartments, LLC v. DLA Piper LLP (US), 2012 Ill. App. LEXIS 201 (1st Dist. Mar. 22, 2012), the Court rejected the application of the “fiduciary-duty” exception to the attorney client and work product privileges. The opinions give instruction as to the underlying facts and factors which will frame and preserve an attorney’s asserted privilege as against his or her former client.  (read more)

September 04, 2012 by Joseph R. Marconi

Illinois Attorney General Providing Debt Settlement Services

For the past several years, Illinois Attorney General ("IAG"), Lisa Madigan, and the State of Illinois have conducted a campaign against companies that purport to assist distressed homeowners and debtors in dealing with their debt situation.1 The primary weapons in the IAG's arsenal are two statutes: the Mortgage Rescue Fraud Act, 765 ILCS 940/1 et seq. (eff. Jan. 1, 2007) ("MRFA"); and, the Debt Settlement Consumer Protection Act, 225 ILCS 429/1 et seq. (eff. Aug. 3, 2010) ("DSCPA").  (read more)

June 15, 2012 by Joseph R. Marconi

Balancing Act: The ARDC Is Monitoring The Balance On Your Client Trust Accounts

The Rules of Professional Conduct now requires attorneys to provide consent for the banks holding client funds to automatically report overdraws to the ARDC. This is an early detection system for possible financial malfeasance and a call for more discipline in managing and accounting for client funds.  (read more)

March 15, 2012 by Joseph R. Marconi

Advice to Clients Enforceability of Restrictive Covenants

The Illinois Supreme Court recently issued its opinion in Reliable Fire Equip. Co. v. Arredondo, 2011 Ill. LEXIS 1836 (Ill. Dec. 1, 2011). The opinion enforced prior precedent that an employer’s legitimate business interest should be considered in deciding whether a restrictive covenant should be enforced, but it rejected the previously set “tests” and “formulas” employed by Illinois appellate courts in determining whether a legitimate business interest exists. Illinois lawyers should carefully consider the Supreme Court’s decision and reconsider their previous opinions to clients regarding the enforceability of certain covenants.  (read more)

January 12, 2012 by Joseph R. Marconi

What Can You Count On These Days?

Does a statutory limitations period stated in calendar years end on the anniversary date or the day before the anniversary date? Two recent cases, one withdrawn and one with an Illinois Supreme Court Justice’s pointed dissent, indicate that the answer you have been counting on may be subject to challenge.  (read more)

November 18, 2011 by Joseph R. Marconi

In “Eligible” IOLTAs We Trust

Effective September 1, 2011, the Illinois Supreme Court has amended Rule 1.15 of the Illinois Rules of Professional Conduct respecting the safekeeping of client funds deposited in trust accounts. As professional fiduciaries, attorneys have long been required to keep their clients’ funds separate from their own. Now, the Supreme Court has limited the options for accounts to hold client funds, imposed new record keeping requirements on attorneys, and now requires banks to notify the ARDC when client accounts are overdrawn.  (read more)

September 16, 2011 by Joseph R. Marconi

Lawyers Are Increasingly The Targets Of Email/Fraudulent Check Schemes

Lawyers are increasingly receiving emails from alleged potential foreign clients looking to collect debts from customers. More likely than not, the email is the first step in a fraudulent scheme which involves a deposit and withdrawal from your special client fund account. A basic knowledge of Article 4 of the UCC and simple precautions can help lawyers avoid becoming a victim of these schemes and protect against other potential fraudulent deposits into lawyer’s special accounts, including fraudulent settlement checks and retainer checks.  (read more)

July 13, 2011 11:46:51 by Joseph R. Marconi

SNYDER v. HEIDELBERGER: The Plaintiff Reposes... The Court Disposes

Defense counsel engaged by ISBA Mutual Insurance Company (ISBAMIC)[2] recently obtained a highly favorable interpretation of the repose provision contained within Illinois Code of Civil Procedure, §735 ILCS 5/13-214.3 (legal malpractice) on behalf of one of its insureds. In Snyder v. Heidelberger, 2011 Ill. LEXIS 1097 (Ill. June 16, 2011), the Illinois Supreme Court reversed a Second District Appellate Court decision that had reinstated a plaintiff’s legal malpractice claim originally dismissed by the trial court, per the repose provision in that limitations statute.  (read more)

July 01, 2011 by Joseph R. Marconi