STUDY OF THE ILLINOIS ATTORNEY GENERAL'S OFFICE
Research, Analysis and Recommendations

Chicago Council of Lawyers and The Fund For Justice
March, 1995

Executive Summary

As part of our Government Effectiveness Program, the Chicago Council of Lawyers and the Fund For Justice undertook an analysis of the Illinois Attorney General's Office ("AGO"). Our review of the Illinois AGO began in November, 1992. The purpose of this study is to identify and highlight administrative decisionmaking that determines the extent to which the AGO is efficient and effective. We also focus on the impact that administrative decisionmaking has had on the quality of lawyering being provided to the people of Illinois.

In reaching our conclusions, we interviewed lawyers and community leaders who have had professional dealings with the AGO over the past decade. We spoke with and\or received information from representatives of attorneys general offices in New York, California and Massachusetts. We surveyed by mail judges sitting in the Circuit Court of Cook County and in downstate circuits, Appellate Court justices in districts throughout Illinois and federal district court judges in districts throughout Illinois. In total, we contacted 350 people and received in-depth information from nearly 100 lawyers, judges, and representatives of community-based organizations.

Unfortunately, former Attorney General Roland Burris refused to cooperate with this study. At his direction, we were denied authorization to interview AGO attorneys and staff.

Finally, we compared the results of our 1984 and 1994 studies of the Chicago Department of Law with our findings about the AGO. The Chicago Department of Law in 1982 was suffering many of the same problems that the AGO is experiencing today. However, the Department of Law has improved dramatically over the past decade by, among other things, implementing our 1984 recommendations. We believe that the AGO can and must experience the same sort of improvement.

We have found both strengths and weaknesses in the AGO. There are many fine attorneys and support staff within the AGO, but there are also many attorneys and other employees who received their jobs through political patronage and who are poorly serving the people of Illinois. Our research shows that the AGO lacks the respect of the government sector as well as the private bar.

Based upon our judicial surveys and interviews with present and former attorneys within the Attorney General’s Office, it appears that personnel policies are nonexistent, the quality of lawyering is inconsistent, communication and cooperation are lacking, morale is low, and too much legal work is being given to outside counsel. Some employees of state agencies told us that they did not trust the AGO for reasons of both (1) politics (they felt the AGO put politics ahead of quality representation) and (2) incompetence (they did not believe the AGO provides quality representation).

To reform, the AGO must eliminate its weaknesses without undermining its strengths.

Recommendations and Conclusions:

The Illinois Attorney General's Office has a broad constitutional, common law and statutory mandate to protect the interests of the people of Illinois. Unfortunately, the AGO has been plagued by inadequate funding, patronage hiring and an ineffective organizational structure. Yet an exemplary AGO can provide the people of Illinois with a vehicle for reform and protection. The AGO must not be used primarily as a stepping-stone for higher political office. The Illinois Attorney General must establish the goal of creating an exemplary public agency. The AGO must provide high quality representation to the agencies of Illinois, and it must seek out ways to protect the people of Illinois through vigorous litigation, counseling and legislative work.

To do so, the AGO must change its basic structure and thrust. It must aim to be competent, vigorous and exemplary and must be perceived as such by the bar, the public and the judiciary. But the State of Illinois can have an exemplary AGO only if the General Assembly and the Governor provide the requisite financial resources. We believe the investment is necessary in light of increasing problems facing the state in an era of shrinking resources.

To create a statewide public interest law firm upon which the people of Illinois can depend, we recommend the following:

A. The AGO Must Seek Assistance From the Private Bar and the Public Interest Bar

The Attorney General should reach out to the private bar and lawyers in public interest organizations and in other government offices to enhance the quality of lawyering, training and supervision.

B. Recruiting and Hiring Procedures Must Be Changed

The AGO must implement recruiting and hiring procedures based on merit, not political considerations. The office must market itself as a powerful and dynamic law office that offers unique training, experience and career opportunities to new attorneys.

Hiring Committee Structure

To minimize political influence in the hiring process, the office should form two separate hiring committees: A lower-level committee comprised of assistant attorneys general, and a senior-level committee, comprised of directors, division chiefs and executive assistants.

C. Training and Professional Development Must Become High Priorities

The AGO's recruiting and hiring strategies must be implemented hand-in-hand with other reforms. To attract the most capable attorneys, the office must offer an opportunity for public practice that is high quality and sophisticated, as well as a practice that provides on-the-job training.

D. The AGO Must Implement Performance Standards and Evaluations

To ensure quality work and provide a merit-based method of promotion, the AGO must utilize periodic, thorough performance evaluations.

The AGO should create a Senior Assistant Attorney General position.

The AGO must work to retain Assistant Attorneys General who show themselves to be superior attorneys. One approach is to create a Senior Assistant Attorney General position which would pay less than a division head position but more than an Assistant Attorney General slot.

E. Teamwork and Communication Must Be Improved

F. Paralegals Should Be Used Extensively

We recommend that the AGO utilize paralegals, particularly in complex litigation. The use of paralegals will allow attorneys to function more effectively.

G. Office Managers are Necessary

H. In Deciding Types of Cases to Bring or Defend, Community Group Input Shouldbe Sought

During the past decade, the AGO has utilized citizen advisory groups. We believe the AGO should continue to use such groups but that representatives of these groups should meet with and be invited to submit written comments to the AGO's top managers. We also recommend that the AGO's top managers attend community meetings periodically.

I. A More Effective Organizational Structure Should be Employed

To Improve Communications, A Three-Tiered System of Management Should be Utilized

The Attorney General should be responsible for the AGO's policy decisions just as a board of directors is responsible for policy decisions of a corporation. But just as a corporate board does not get involved in day-to-day corporate operations, neither should the Attorney General micro-manage the AGO. Rather, the Attorney General should serve as the first tier of the AGO's management.

The second tier should consist of the Deputy Attorneys General, who serve as middle level managers. Each Deputy should be responsible for a particular area and particular divisions of the office. These individuals should make policy-related decisions that will affect the operations of the AGO on a day-to-day basis. They should supervise a designated number of division heads. The third tier should be the division chiefs, who provide supervision and all relevant communication to Senior Assistant Attorneys General and Assistant Attorneys General.

J. The Attorney General Should Create A Legal Counseling which should be assigned to communicate with particular agencies

A Legal Counseling Division should be created to establish and maintain the lawyer/client relationship with state agencies. State agencies currently use the AGO only as a "hired gun" for litigation. However, the AGO must develop a lawyer/client relationship with state agencies. These agencies need legal counseling for advice on responding to problems and on how to prevent problems from occurring. Particular attorneys within a Legal Counseling Division should be assigned to each agency and to the governor's office.

An additional duty of this division should be to monitor legislation pending in Springfield and Washington, D.C. The AGO should take a leadership role in supporting or opposing legislation affecting Illinois and the people of Illinois.

K. The AGO should ultimately acquire responsibility for all state legal services

This was a recommendation of a 1983 Arthur Andersen report on the Illiois AGO, and we agree with it. State agencies will have fewer in-house lawyers, but they will have a closer working relationship with the AGO -- including more legal counseling as well as litigation services. However, before such a change is made, the AGO must improve the quality of its representation, including the counseling function discussed earlier. The AGO must also develop a more cooperative and trusting relationship with other state agencies -- principally by assuring that decisions will be made based on the agencies' legal needs, not on the Attorney General's political agenda.

L. The Attorney General's Office Should Reduce the Use of Outside Counsel

The AGO will be able to attract the finest attorneys only if it can offer challenging legal work. It should, therefore, seek to utilize its own attorneys whenever possible.

M. Pro Bono Relationships Should be Developed

We discussed earlier the need to recruit experienced lawyers from the private bar and the public interest sector. We also recommend that the AGO seek agreements with law firms allowing associates to provide time-limited clerkships to the AGO. We also recommend that the AGO seek arrangements with local law school clinics that will allow law students to work with the AGO in exchange for academic credit.

N. A Task Force Should Study the Use of Alternative Dispute Resolution Mechanisms --Particularly in the Area of Consumer Protection

O. An Internal Review Board Should be Created

A Review Board should be established to receive and review complaints made by Assistant Attorneys General, other staff of the AGO and the public about AGO procedures and policies.

P. The AGO should continue to publish an In-House Newsletter and an Annual Report Discussing the AGO's Accomplishments and Providing Accurate Statistics

Q. Decisions regarding the staffing of divisions of the AGOmust be based on substantive needs and not on political expedience

R. In Revenue Litigation, the AGO Should focus its attention on pursuing substantive tax issues in court.

We heard complaints that the AGO focuses on the largely administrative function of revenue collection in uncomplicated matters rather than on pursuing more difficult tax collections through litigation. This approach has been used for political reasons because the AGO gets to claim that it collects large amounts of funds for the state. However, this effort may be a waste of resources because the in-house staff at the Illinois Department of Revenue may be able to conduct this routine collection function. We recommend that this issue be examined and a new strategy be developed.

S. There Must Be More Accountability in the Charitable Trusts and Solicitations Division

The AGO should charge filing fees and late fees. The AGO should also publish reports listing what percentage of the funds received by each charitable organization is actually delivered to the charitable purpose. Furthermore, the AGO should publish a standard-form contract to be distributed to charitable organizations to aid them in their dealings with commercial fundraisers.

T. An Advisory Group Should be Formed

It is our opinion that the offices of Attorneys General in New York, California and Massachusetts are among the most active and effective offices in the country. We recommend that an Advisory Group comprised of former attorneys general, private attorneys, legal scholars and representatives of bar associations should monitor AGO activities in other states -- both directly and through the National Association of Attorneys General. This Advisory Group should periodically report its findings and recommendations for new initiatives, litigation, legislation, etc. to the Attorney General.

U. The AGO Should Establish a Public Interest Division andSeek a Working Relationship with Public Interest Organizations

There are numerous public interest organizations in such areas as environmental law, civil rights and consumer affairs. Many of these organizations have missions similar to the public interest mission of the AGO. The AGO should seek to work with these groups on both litigation and legislative strategies. To this end, the AGO should establish a Public Interest Division to identify areas of concern, develop strategies for solving problems and establish working relationships with public interest organizations.

 

CONCLUSIONS

The Illinois AGO has a broad constitutional, common law and statutory jurisdiction to both represent Illinois agencies and the people of Illinois. To this end, there is great potential for interesting, challenging and worthwhile legal actions -- work that could attract high quality attorneys. Unfortunately, the AGO has been plagued by patronage hiring and decisionmaking based too often on political aspirations and not on the best interests of Illinois.

The Illinois Attorney General needs to make large scale changes. Hiring and promotion decisions need to be based on merit. The Attorney General needs to approach the private sector bar (including public interest organizations) for help in finding high quality lawyers who are willing to commit time to improving the AGO. The AGO needs better supervision and training and an organizational structure which will allow decisionmaking to be based on the best interests of the state. Moreover, the AGO needs to develop a professional lawyer/client relationship with state agencies and provide legal counseling services as well as litigation attorneys.

The AGO must become an exemplary statewide public interest law firm. The people of Illinois deserve no less. The Chicago Department of Law became a high quality municipal law office after many years of committed effort from Mayor Harold Washington, Mayor Richard M. Daley and the Corporation Counsels they selected. There are many similarities between the Chicago Department of Law in the early 1980s and the AGO in the mid-1990s.

In 1982 the Chicago Council of Lawyers and the Fund for Justice embarked on a study of the Chicago Department of Law ("Department"). Our study, released to the public in April, 1984, showed that James Montgomery, who became the corporation counsel with the election of Mayor Harold Washington, had inherited an office in disarray. While there were high quality lawyers present in the office, their work was eclipsed by patronage hiring, and a lack of an effective organizational structure. There was no objective system of evaluating personnel and no systematic analysis of the types of legal matters in which the Department should be involved. Our study noted a lack of effective supervision and inadequate support staff.

We said in 1984 that the Department must change its basic structure and thrust so that it would move toward becoming an efficient and effective public law firm that protects Chicago's interests in both the short and long terms. And, in so doing, it should aim toward being perceived as competent, vigorous, and exemplary by the judiciary, the bar, and the public. To this end, we offered 33 recommendations.

Beginning with Mr. Montgomery's term, the Department of Law started to implement major changes for the better. In 1994 we issued a follow-up report to our 1984 study of the Department. We found that the Chicago Department of Law utilized many of our recommendations, with a strong focus on improving supervision and training by tapping private sector attorneys for assistance. The Department is now a respected municipal law office.

The Illinois Attorney General's Office can become an exemplary office within four years -- provided it receives the support of the Governor and the Illinois General Assembly. The time and monetary investment will be worthwhile for all the people of Illinois.