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Vol 45. No.3 Summer 2021

LAW JOURNAL AWARDS……………………………………..................................... i 


Survey of Law: The Right to Counsel for Indigent Parents in Child Welfare Cases

Joanna Wells…………………………………………….......................................551

Nearly forty years ago, in Lassiter v. Dep’t of Soc. Servs., the United States Supreme Court ruled that indigent parents whose parental rights are being terminated by the state do not have an absolute right to court-appointed counsel. The Lassiter Court emphasized the lack of deprivation of physical liberty involved in cases regarding the termination of parental rights and upheld the Court’s long-held due process presumption that the right to appointed counsel exists only when an indigent individual may be deprived of physical liberty.

Because civil child welfare cases do not present a risk of deprivation of physical liberty for the parents, no presumption exists for the right to counsel. In its due process analysis, the Court used the three balancing factors from Matthews v. Eldridge to determine that termination of parental rights cases generally, and the mother in Lassiter specifically, cannot overcome the presumption against the right to counsel. Instead, the Court favored
a case-by-case approach in which the state trial court would make the decision as to whether or not to appoint counsel, “subject, of course, to appellate review.”

The Court rejected the indigent mother’s arguments on constitutional grounds, but encouraged state courts and legislatures to consider that “wise public policy . . . may require that higher standards be adopted than those minimally tolerable under the Constitution” while noting that as of the time, “33 states and the District of Columbia provide statutorily for the appointment of counsel in termination cases.” Significantly, the Court also
recognized that appointment of counsel implicated not just termination of parental rights cases but also all child welfare cases involving neglect, abuse, and dependency; in which termination may be only one of many outcomes.

In the intervening decades, the Supreme Court has not revisited this issue, and state courts have dealt with it in varying ways by creating a patchwork of statutes, case law, and practices that impact hundreds of thousands of families each year. In addition, even in states that now provide a right to counsel for indigent parents, vast differences exist in regard to the conditions under which counsel may or must be appointed, the length of that
representation, training requirements, remuneration, and many other issues that impact the child welfare system.


Misconduct or Mere Error?: Addressing the Misuse of the Term “Prosecutorial Misconduct” in Illinois Criminal Cases

Brandon J. Zanotti……………………………………………............................................563

The United States Supreme Court has said, “[i]t is an unalterable fact that our judicial system, like the human beings who administer it, is fallible.” Unfortunately, the commission of error will inevitably be a part of our legal system, as we are all – judges and attorneys – engaged in a human endeavor. The unavoidable commission of human error obviously extends further to the criminal justice arena.

When trial judges make mistakes at trial, such as improper admission of evidence or testimony, reviewing courts often refer to such error as “judicial” or “trial” error. When criminal defense attorneys make “mistakes that fall below an objective standard and that ultimately prejudices their clients, reviewing courts refer to such
conduct as ‘ineffective assistance of counsel.’” Reversals or remands based on judicial error or ineffective assistance of counsel are typically reported as mere “legal technicalities,” or simply “inadequate presentation of a defense.” However, all too often in Illinois, when prosecutors make mistakes or commit error in the trial
process, defense counsel, defense advocates, and even at times reviewing courts refer to these errors as “prosecutorial misconduct,” regardless of intent or how the error may or may not have prejudiced the defendant. Calling a prosecutor’s error “prosecutorial misconduct” when such error does not meet that label implies an
intent to mislead, obstruct justice, or even subvert the criminal justice system.

Until a recently published Illinois Appellate Court opinion, People v. Williams, courts have been remiss to admonish defense counsel for using the term “prosecutorial misconduct” when the acts at issue amount, at most, to mere error, or alternatively, to encourage defense counsel to refrain from doing so.

This article first aims to define what actions on the part of prosecutors amount to prosecutorial misconduct by discussing the role of intent and the use of a cumulative pattern of misconduct in the trial process which prejudices the defendant. Second, the article discusses multiple instances in Illinois over the past
four years where the defense bar has accused prosecutors of misconduct when the acts at issue were nothing more than, at most, mere error on the part of prosecutors.

Finally, it discusses a recent Illinois Appellate Court decision that took aim at the pervasive use of the term “prosecutorial misconduct” when the actions underlying the claims did not call for it.


What is Aba Model Rule 8.4(G), Why is it so Controversial and How Did Illinois Respond?

Allison L. Wood…………........................................................................................589

The legal profession is a self-regulated profession, in that rules that goven lawyer conduct are written by lawyers. In 1983, the House of Delegates of the American Bar Association (“ABA”) promulgated the ABA Model Rules of Professional Conduct (“MRPC”) for lawyers and the Model Code of Judicial Conduct for judges in 2007. The MRPC specifically provides the baseline for the standards of the legal profession’s conduct. All states, except California, have adopted the MRPC in some form or variation. The ABA Standing Committee on Ethics and Professional
Responsibility (“SCEPR”) issues ethics opinions to help interpret the MRPC. Since the MRPC are recommendations, states are not bound by them. When any changes to the MRPC are made, states may, but need not, adopt the changes.

The ABA Model Rule that defines professional misconduct is Rule 8.4. This rule holds that it is professional misconduct for a lawyer to violate the Rules of Professional Conduct, to commit a criminal act, to engage in conduct involving dishonesty or fraud, to engage in conduct that is prejudicial to the administration of
justice, to state or imply an ability to influence a governmental agency, or to knowingly assist a judge in conduct that violates the judicial rules of conduct. One of the Comments to Rule 8.4, Comment 3, states that a lawyer also engages in professional misconduct if they engage in discriminatory conduct that prejudices the administration of justice. Specifically, Comment 3 reads: A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status, violates paragraph (d) when such actions are
prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.

On August 8, 2016, the SCEPR presented Resolution 109 to the ABA House of Delegates at the ABA Annual Meeting in San Francisco. Resolution 109 proposed to eliminate Comment 3 to ABA Model Rule 8.4 and to create a new paragraph (g) to Rule 8.4, to place an anti-discrimination and anti-harassment provision in the black letter of the MRPC. The ABA House of Delegates unanimously and without opposition adopted Resolution 109, which is now ABA Model Rule 8.4(g).

Notably, the adoption of Rule 8.4(g) was supported by the Association of Professional Responsibility Lawyers (“APRL”).

This article is intended to be a primer for those who want to have a better understanding as to how Rule 8.4(g) came to be adopted by the ABA, why it was met with such strong opposition and the nature of the “crusade” to persuade states to reject its adoption. The first section will discuss the process that led to the creation and adoption of Rule 8.4(g) by the ABA. The second section will discuss why it was believed that an anti-discrimination and anti-harassment provision was needed in the black letter of the ethics rules. The third section will discuss the nature of the opposition against the rule. The fourth section will discuss the Illinois
anti-discrimination rule; how it compares to Rule 8.4(g); and how Illinois responded to Rule 8.4(g) as of this date. The primer will conclude with finalthoughts. 

Survey of Illinois Law: Health Care Law

Allison de Corral, Sherri Devito, Keith Emmons, Rick Hindmand, Nick Kurk, Leonard Nelson, Jacob Radecki, Juliet Sorenson, and Alexandra Tarzikhan…………611

Health care remains among the most active and diverse fields in law. This year’s Survey reviews significant issues in state and federal health care law with respect to Illinois statutory and regulatory health care professional practice changes, the proposed Illinois Physician Orders for Life-Sustaining Treatment (POLST) Registry, the multiple Illinois COVID-19 Executive Orders, the Illinois Biometric Information Privacy Act and recent lawsuit-related issues and the opioid epidemic in the presence of the COVID-19 pandemic. Senior Illinois health care attorneys, most of whom are current or former members of the Illinois State Bar Association’s Health Care Section Council, researched and drafted the various articles to inform Illinois lawyers of significant developments in this dynamic practice area.