The Supreme Court Stated

Illinois Lawyer Now is reporting that, earlier this week, the Illinois Supreme Court granted the Attorney Registration and Disciplinary Commission (ARDC) the authority to investigate and prosecute the unauthorized practice of law. I have to say I found this surprising in the sense that I thought the ARDC already had that authority. The ARDC is the disciplinary agency in the state and given that unauthorized practice of law is an ethical violation, you would think that it has the authority to deal with such cases. Well, apparently, it didn’t, but now it does. But maybe I should not be surprised. A couple of years ago, I posted a comment about a case that interpreted the notion of illegal practice of law in Illinois which I found odd. I promised myself I would do some research on the question, but never got around to it. The applicable statute in the case reads as follows: “A person who falsely represents himself or herself to be an attorney authorized to practice law for purposes of compensation or consideration commits a Class 4 felony.

The defendant argued that because the statute does not specify that he must be authorized to practice law in Illinois, he did not violate the law if he was licensed in any one state or jurisdiction. I would have thought this argument to be absurd; why would you have an illegal practice of law statute if it wasn’t to penalize people who are not authorized to practice law in the state? Yet, by comparing the statute that was repealed when this one was enacted, the court concluded that the defendant was correct. This interpretation strikes me as very odd. It means that an attorney not admitted to practice law in Illinois who was practicing law in Illinois would not be in violation of the statute as long as he was admitted to practice somewhere else. Isn’t that the “definition” of practicing law illegally in a jurisdiction? Am I missing something here? The court also rejected the defendant’s argument that the statute does not apply to law school graduates with legal experience. He argued that law school graduates have legal training and thus are not falsely representing themselves as attorneys. Now, this one is absurd! He actually argued that a law graduate would not be guilty of practicing law illegally because he was a law graduate. The court rejected the argument.

Suppose in our example you had called an attorney. Would it make a difference? A good personal injury attorney will get between his client and the insurance companies involved in his client’s claims. He can prevent direct negotiation between the negligent actor’s liability insurer and his client’s medical insurer. In some cases he can file a declaratory judgment action either in state or federal court to clarify the terms of subrogation or reimbursement clauses in employee health benefit plan documents. He can argue application of principles of equity in asserted reimbursement claims; in other words, arguing that strict adherence to the law will result in a patently unfair result. He can negotiate a reduction in the amount the subrogating medical insurance company will accept in satisfaction of its reimbursement claim. If you’ve been injured in a car wreck in Texas, don’t let the insurance companies get the better of you. Retain a good car wreck lawyer in Texas to fight for your rights and get you the compensation the law entitles you to.

Senate Bill 635 allows judges discretion when sentencing juvenile offenders in capital cases, and it gives the judge the authority to decide whether it is fit for a defendant to be allowed parole. One of the justices wrote for the Supreme Court with a decision stating that the court systems must begin to “take into account how children are different”. Now that a judge is not strictly bound by statutes and guidelines, the differences of a child can be accounted for while their sentence is being determined. But prior to hearing the verdict of their case, there must first be a sentencing hearing held by the judge to establish all of the mitigating factors surrounding the adolescent. Throughout the trial that works to establish a fair sentence for the juvenile, the defense and prosecution both have their arguments heard. Evidence from previous phases of the trial are not necessary, but new evidence relevant to sentencing matters is permitted. During this sentencing trial, the defense has the opportunity to have the final argument.

All too often, instead of acting as a brake, government becomes the enabler of corporate power and greed, undermining the very rules and regulations intended to keep us safe. Think of inadequate inspections of food and those infections which kill 3,000 Americans each year and make many millions sick. Think of the 85,000 industrial chemicals available today. Only a handful have been tested for safety. Think of the explosion of perhaps as much as half a million pounds of ammonium nitrate in that Texas fertilizer plant. People can die when government winks at bad corporate practices. As long as there are insufficient checks and balances on big business and its powerful lobbies, you and I are at their mercy. Which is why their ability to buy off public officials is an assault on democracy and a threat to our lives and health. Keep that in mind as I introduce you to David Rosner and Gerald Markowitz. Some years ago, their book, Deceit and Denial, told how the chemical industry tried to conceal the truth about untested and unregulated chemicals in our food, water, and air. Twenty companies responded with a vicious campaign to smear their reputations.

That proved hard to do, actually, impossible. Gerald Markowitz is a distinguished professor of history at both John Jay College of Criminal Justice and the City University of New York’s Graduate Center. David Rosner is co-director of the Center for the History and Ethics of Public Health at Columbia University where he also teaches science and history. This is their new book, which revisits a chemical menace you might have thought was behind us, but isn’t: Lead Wars: The Politics of Science and the Fate of America’s Children. BILL MOYERS: Gerald Markowitz, David Rosner, welcome. DAVID ROSNER: Thank you. GERALD MARKOWITZ: Thank you. BILL MOYERS: Your book concludes that after all these years, lead is still a problem. GERALD MARKOWITZ: Absolutely. You know, in some ways the story of lead is a great success. We’ve reduced the amount of lead in children’s blood and we’ve gotten lead out of gasoline and we’ve gotten lead out of paint.

But there are still children who have too much lead in their blood. And it is endangering their life chances, endangering their futures. BILL MOYERS: Does it kill? DAVID ROSNER: It doesn’t kill anymore. BILL MOYERS: What’s the most important thing you’ve discovered about lead since we last talked? DAVID ROSNER: Well, that in what we would once have considered miniscule amounts lead in children can cause neurological damage, causes behavioral problems, attention deficit disorders, dyslexia. Studies show that children who are exposed in utero can have permanent neurological changes that put them at risk later in life for learning disabilities that lead to failure in school and IQ loss. There are a whole series of problems that we never even thought about in the old days, so to speak. GERALD MARKOWITZ: It’s shocking that we know that children can be prevented from any kind of lead poisoning if they are, live in a home that is lead free.

And this is no longer, you know, a priority of the country. We still have many homes millions of homes that contain lead that are endangering our children. BILL MOYERS: Is it the cost of getting rid of the lead from homes that are already established and we’re living in, is that the main barrier? DAVID ROSNER: For some it is. But the history of public health, and that’s what we are, historians, is rife with examples of decisions that are very costly that we decided are necessary for the population as a whole. GERALD MARKOWITZ: We really made a morally bankrupt calculation that it is less costly to endanger the health and futures of our children rather than to protect them by paying to remove lead from their homes. BILL MOYERS: When I first met you, people were saying, scientists were saying, that the smaller the dose of lead, the exposure to lead, the safer it would be.

GERALD MARKOWITZ: Scientists now say that it is very likely there is no safe level of lead, that any amount of lead in a child’s body, in a child’s blood, you know, causes a variety of neurological and intellectual problems. So this is really a sea-change in our understanding of what, the amount of a toxin that causes a problem for children. DAVID ROSNER: We no longer have children convulsing and going into comas. In other parts of the world they still are from lead exposures. In Africa, in Nigeria, children still are exposed to huge amounts of lead from a variety of sources. And a recent article indicates that we’re still selling lead paint, for example, to other countries despite the fact that we in this country no longer use it on our walls. BILL MOYERS: Well, there were ads actually promoting lead paint as the right paint for your home. DAVID ROSNER: They said that lead paint was a friend of the child and that it could be spread on any surface and it could be fun to do.

And they showed these ads in which children are painting their toys, painting their cabinets, painting their walls, painting their furniture with a poison. GERALD MARKOWITZ: And the industry said over 50 years ago that this was an insoluble problem, it was a problem of, caused by slums, it was a problem caused by who they called uneducable parents. And so that they washed their hands of the problem and they have still washed their hands of the problem. Parents have played, excuse me, paid the cost of lead poisoning. Landlords have even paid the cost of lead poisoning. The government has paid the cost of lead poisoning. The industry has not paid to get that lead off the walls so future generations of children can be protected. BILL MOYERS: What your critics say is, look, it’s like gasoline in cars. We didn’t intend harmful effects to come from a product that was fueling America’s economy. We found out later and we’re trying to cut back on emissions. This applies as well to lead and other toxins in our environment.

Nobody intended it, it proved to be a consequence of, as even you say in here, the enormous amount of material we’ve taken out of the earth and turned into the engine of our prosperity. GERALD MARKOWITZ: Well, unfortunately they didn’t give them the information about the dangers of lead that they had. They knew that lead was killing children in the 1930s. They knew that researchers were uncovering lead and they were fighting those, the diagnoses of lead poisoning in children. They, even into the 1970s and ’80s, they went after researchers like Herbert Needleman who were uncovering the low levels of lead that were damaging children. They were not innocent purveyors of a product. They were actively involved in the political dialog attempting to increase their profits at the expense of public health. BILL MOYERS: I interviewed Herbert Needleman some years ago for a documentary on Kids and Chemicals.

Let’s take a look. BILL MOYERS in Kids and Chemicals: It was a stunning discovery, and no one knew it better than the lead industry. Leaded gasoline was the single greatest source of lead exposure, and as a result of Needleman’s work the Environmental Protection Agency sped up efforts to ban it. The lead industry fought back, denying Needleman’s science. JEROME COLE in Kids and Chemicals: Lead has been used in gasoline for over 60 years. DR. PHILIP LANDRIGAN in Kids and Chemicals: The lead industry attacked it viciously and they attacked Dr. Needleman himself. They accused him of scientific misconduct and they actually filed charges against him at his university and at the National Institutes of Health. DR. HERBERT NEEDLEMAN in Kids and Chemicals: It’s like a death sentence. BILL MOYERS in Kids and Chemicals: The assault went on for three years. For three years, Dr. Needleman stood his ground.

DR. PHILIP LANDRIGAN in Kids and Chemicals: Those were tough years in Dr. Needleman’s life. Eventually those charges were shown to be baseless and the people that brought them forward who had portrayed themselves as neutral scientists were, in fact, revealed as consultants to the lead industry. It took several years for the truth to out. DR. HERBERT NEEDLEMAN in Kids and Chemicals: I knew I was right. I mean, I knew that the work was good. I knew that my colleagues who worked with me on it were honest people. But I realized that science is not always the polite intellectual activity that it appears to be; that environmental science sometimes becomes something closer to warfare. BILL MOYERS: So that’s why you called this Lead Wars, I assume? DAVID ROSNER: That’s right. DAVID ROSNER: That’s where the title comes from. BILL MOYERS: How so? DAVID ROSNER: Well, you look at the asbestos story. Our homes are still, you know, covered with asbestos. It’s on, in old homes, it’s on the shingles that, you know, we use, it’s in the floor coverings that, the vinyl that we use, it’s on the roofs.

It’s on our boil, older boilers still, but when you look at the history of asbestos the knowledge about that product goes back literally decades and decades and decades. Then you look at the silica industry, the, when you look at the vinyl chloride industry, when you look at the PCB story. And the same unfortunate, the same unfolding of, what can you say but corporate greed. GERALD MARKOWITZ: And in addition to the corporate greed there is their war on science. The attacks on global warming. BILL MOYERS: What is it? GERALD MARKOWITZ: It is basically an ingredient in plastic that is in the linings of cans, it’s even in receipts that we get every day from a clerk at a store, the credit card receipt. And we take that and that has bisphenol A on it. And we end up absorbing that. There’s been a tremendous amount of research that shows that it is an endocrine disruptor, that it causes a disruption of the endocrine system that can affect reproduction, that can affect development of the fetus.

But it’s also a carcinogen. And so this is a real problem that the industry has been fighting to cast doubt on really amazing science that has been done by a wide variety of people. BILL MOYERS: Just this April California’s Environmental Protection Agency put it on its toxins list. The American Chemistry Council is suing California to keep this off of that list of dangerous substances. GERALD MARKOWITZ: And they are supporting research that, as David said creates doubt about the independent scientists who are finding these variety of subtle and not so subtle effects. And they are determined, as they did, as we talked about in tobacco, in global warming, in lead, in asbestos, to make people not be convinced. And if they’re not convinced, if they have a question in their mind, then they can continue to sell their chemical. BILL MOYERS: You two have been yourselves the subject of harassment, legal suits, attacks, efforts to discredit you, right?

DAVID ROSNER: There was an article in a legal journal that kind of warned us about what was going to happen. GERALD MARKOWITZ: Which was Deadly Dust. DAVID ROSNER: –which was called Deadly Dust. And it said, you know, we could let Rosner and Markowitz play by themselves in their own little play yard of historians, but they, their book has appeared in lawsuits against the industry. And it has become the dominant narrative or it’s becoming the dominant narrative of how silicosis is understood. Therefore we have to do something about them. They didn’t quite say it in those words, but that was the implication. GERALD MARKOWITZ: Well, they said, you know, be an academic and talk only to academics. But when you talk to the public that’s dangerous. DAVID ROSNER: And then very shortly afterwards we found Deceit and Denial, the next book we did came under enormous attack. They actually subpoenaed the press, they subpoenaed the foundation that supported us, the Milbank Foundation.

GERALD MARKOWITZ: They subpoenaed the peer reviewers of the book for a university press. DAVID ROSNER: And then they hired a historian to call us unethical, lousy historians, to attack minor footnotes in the book that weren’t wrong, but he claimed were wrong. It was quite an attack. And I think the biggest thing they do, though, is try to introduce doubt. One of the issues that they constantly are raising is you don’t have definitive, you don’t have definitive proof that in 60 years, for example, children might develop cancer from exposure to bisphenol A, right. You don’t have the long term studies that we think are really essential. But you introduce doubt about the data and then you find other people to introduce studies that raise questions about it. So you introduce, it’s really the production of uncertainty. Produce uncertainty about the issue and we as an industry have no obligation to prevent disease. And it’s completely antithetical to everything that public health could, public health’s supposed to be about preventing disease and you always work on imperfect data.

You never have the long term 60-year study that tells you you’re going to have damage 60 years from now. So that’s one of the tactics, it’s just to keep saying there’s a question, there’s a question. GERALD MARKOWITZ: And to attack people like Herbert Needleman, and to create the kind of uncertainty that gives parents pause. Should I act or should I not act? And that is probably the, as David says, the most dangerous thing they do. GERALD MARKOWITZ: But if you can’t contest the message then you go after the messenger. But think about all the younger academics who are deciding what they’re going to study, what they’re going to work on. And for those people it is a real decision. Are they going to go up against powerful industries or are they going to do something safe? And our fear is that more and more younger scholars and younger scientists will end up doing something safe rather than something that could really make a difference in the public arena. BILL MOYERS: Both of you were witnesses in that big case in Rhode Island. Can you summarize that and what happened?

GERALD MARKOWITZ: Well, this was the longest civil trial in Rhode Island history, or at least up to that point. And it was a remarkable effort by the attorney general of the state of Rhode Island to prevent future damages for lead’s harm to the children of Rhode Island. It was really a public health lawsuit, an amazing public health lawsuit. BILL MOYERS: As I understand it Senator Whitehouse whom I have met had this problem before he was a senator. He had inadvertently exposed his own children to lead when he renovated his house. And then he became attorney general and brought this suit to try to hold the industry accountable. GERALD MARKOWITZ: It took, unfortunately, his personal tragedy to get him to take this extraordinarily important action. DAVID ROSNER: And that they had done nothing about it, they continued to market. And that really, I think, enraged the jury.